2015 IL App (1st) 133620 

FIFTH DIVISION

March 31, 2015 

No. 1-13-3620 

MACK INDUSTRIES, LTD.,

Plaintiff-Appellant, 

v.

THE VILLAGE OF DOLTON and BERT HERZOG, 

Defendants-Appellees.

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Appeal from the

Circuit Court of

Cook County

No. 12 CH 35480

Honorable 

Thomas B. Allen,

Judge Presiding.

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

Presiding Justice Palmer concurred in the judgment and opinion. 

 Justice Gordon concurred in part and dissented in part, with opinion. 

OPINION

¶ 1 Plaintiff Mack Industries, Ltd. (Mack), appeals an order of the circuit court of Cook 

County dismissing its verified amended complaint against defendants Village of Dolton (Village) 

and Bert Herzog (Herzog). On appeal, Mack contends the circuit court erred in dismissing three 

of the four counts of the verified amended complaint: (1) seeking a declaratory judgment; (2) 

alleging breach of contract by the Village; and (3) alleging willful and wanton, retaliatory 

misconduct by Herzog as the Village's manager. For the following reasons, the judgment of the 

circuit court is affirmed.

¶ 2 BACKGROUND

¶ 3 The record on appeal discloses that on September 20, 2012, Mack filed a verified 
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2 

complaint against the Village, containing the following allegations. Mack is the owner and 

manager of approximately 195 single-family homes (Mack properties) in the Village, a home 

rule municipality. Mack's complaint primarily arises out of the Village's provision of water 

service.

¶ 4 At all times relevant to the complaint, the Village exercised control over the supply of 

water to residential properties within the Village. A Village ordinance1 prohibited private 

companies and individuals from supplying water to any building, structure or premises into 

which water service is introduced. A Village ordinance also provided that water meter readings 

were to be taken every three months. If no one was present on the premises, the water meter 

reader was required to leave a United States postal card for the customer to record the water 

usage and mail the reading to the Village clerk. If no postal card was returned to the Village 

clerk within 10 days of a second meter reading, premises against which charges remained 

outstanding "may be considered for 'red tagging' in preparation for 'shut off' of water to the 

premises." After the expiration of the time for payment as specified by ordinance, a list was 

required to be compiled of those premises with unpaid charges and the ordinance provided such 

 1

 Although Mack's complaint quoted various purported Village ordinances, the pleading 

did not indicate when the purported ordinances were adopted. The Village's motion to dismiss 

Mack's verified amended complaint attached copies of the purported ordinances as exhibits, but 

also without indicating when the purported ordinances were adopted. During oral argument, the 

parties did not dispute the substance of the Village's ordinances or that the purported ordinances 

were in effect during the period of the dispute at issue. It should be noted, however, that the 

provision regarding "red tagging" is denoted as a "proposed ordinance" in the materials 

submitted to this court.
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3 

premises "shall be authorized for 'red tagging' and 'shut off.' " The ordinance required the 

Village clerk to send notice by mail to the owner of premises scheduled for "red tagging," 

specifying the day and time the meter would be "red tagged" and water service would be shut 

off. By ordinance, owners and users of water service were jointly and severally liable for water 

charges. The ordinance further provided that if water charges were not paid within 60 days of 

the issuance of a bill, the charges would be deemed delinquent and constitute a lien on the real 

estate to which the service was supplied. The ordinance additionally provided, however, that the 

Village clerk could refrain from filing sworn statements regarding these liens with the recorder 

of deeds in Cook County if the Village proposed to sue the owner, occupant or user of the real 

estate in a civil action. Mack required its lessees to be responsible for the payment of water bills. 

¶ 5 Mack alleged that the stated practice of the Village's water department was to flag 

properties for disconnection of water service once a bill was more than 30 to 60 days overdue. If 

a payment was not made after a notice of termination, service would be disconnected. This 

practice allegedly applied to unpaid water bills in excess of $150. In addition, the Village 

entered into payment plans with tenants relating to water service, but required the tenant or 

owner to make an initial payment of at least 60% of the unpaid balance. 

¶ 6 In the late summer of 2010, the Village allegedly ceased enforcing its water service 

ordinances with respect to the majority of the Mack properties, thereby failing to send notices of 

delinquency, "red tag" properties, and disconnect water service. In several instances, water 

service was not disconnected until the lessee vacated the property, leaving Mack solely 

responsible for the unpaid charges and a fee for reconnection of service. In many cases, the 

unpaid water bills on a property exceeded $700. In some instances, the Village agreed to 

payment plans with Mack's lessees, under which only nominal payments were tendered to the 
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4 

Village, without notice to or the agreement of Mack. 

¶ 7 Mack further alleged the Village routinely ignored requests to send notices of 

disconnection to Mack's delinquent properties when the bills were 60 days overdue. In 

September 2010, Mack commenced corresponding with the Village about the difficulties Mack 

experienced regarding the lack of enforcement of the Village water ordinances. In January 2012, 

Mack also discussed the issue with the Village counsel, who promised prompt action. From 

August 2010 through September 2012, Mack was forced to pay in excess of $18,000 in water 

charges that accrued after Mack requested disconnection of services. Mack estimated it would 

be forced to remit in excess of $20,000 of water charges as of the date the complaint was filed, 

and further charges would continue to accrue until the issue was resolved. In March 2011, the 

Village commenced denying rental occupancy permits to properties with unpaid water charges, 

thereby preventing Mack from establishing new tenancies. 

¶ 8 In count I of the verified complaint, Mack sought a judgment declaring the Village's 

pattern and practices were not in compliance with the terms of the Village ordinance relating to 

water service by failing to: (1) conduct a second meter reading or leave the appropriate notices; 

(2) "red tag" premises after notice was provided; and (3) disconnect water service at properties 

more than 60 days delinquent in payment. Mack also sought an award of attorney fees. In count 

II of the verified complaint, Mack alleged the Village breached a contract to provide water 

service to property owners. Mack asserted the contract was created as a matter of law by the 

ordinance establishing the Village as the sole provider of water service. In count III of the 

verified complaint, Mack sought an injunction against retaliation by the Village. Mack alleged 

that after it provided the Village with a draft copy of its verified complaint in July 2012, the 

Village: (1) contrary to its prior practice, commenced issuing citations regarding various Mack 
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properties without providing an opportunity to cure alleged violations; (2) failed or refused to 

issue a letter certifying one of the Mack properties as destroyed by fire, thereby precluding Mack 

from obtaining remediation of asbestos on that property; and (3) arbitrarily ordered reinspections 

of Mack properties and refused to recertify at least 16 Mack properties, based on a need to 

review paperwork regarding those properties. 

¶ 9 On December 27, 2012, the Village filed a motion to dismiss Mack's verified complaint 

pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 

2012)).2 The Village first contended counts I and II of Mack's verified complaint must be 

dismissed pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2012)), arguing the 

Village is immune from liability for failing to enforce its own ordinances, pursuant to section 2-

103 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort 

Immunity Act) (745 ILCS 10/2-103 (West 2010)). The Village also contended count III of 

Mack's verified complaint must be dismissed pursuant to section 2-619 of the Code, arguing the 

Village is immune from liability for failing to issue permits or certificates, pursuant to section 2-

104 of the Tort Immunity Act (745 ILCS 10/2-104 (West 2010)). The Village further argued 

Mack's verified complaint must be dismissed in its entirety pursuant to section 2-615 of the Code 

(735 ILCS 5/2-615 (West 2012)), arguing all three counts failed to state a claim for which relief 

may be granted.

¶ 10 On January 9, 2013, Mack filed a motion for leave to file an amended complaint. On 

January 16, 2013, the circuit court entered an order granting Mack leave to file its amended 

 2 The caption of the Village's motion refers to dismissing Mack's first amended 

complaint, but the body of the motion and the complaint attached as an exhibit to the motion 

establish the motion was directed to Mack's initial verified complaint.
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6 

complaint instanter. 

¶ 11 On January 17, 2013, Mack filed a verified amended complaint adding Herzog as a 

defendant. The factual allegations of the verified amended complaint were substantially similar 

to Mack's initial complaint, although Mack only claimed 151 Mack properties were located 

within the Village. Mack also alleged it was required to pay exorbitant water bills regarding 28 

of these properties. Mack further alleged that on numerous occasions, the Village refused to 

correct overcharges after Mack notified the Village regarding its problems with water service. 

Mack additionally alleged it was required to pay a $500 water charge for a property it purchased 

in September 2012. Moreover, Mack alleged that commencing in September 2012, the Village 

and Herzog: (1) refused to provide police service to Mack property managers complaining about 

the criminal activity of Mack's lessees, and in one case refused to provide fire protection 

services; (2) arbitrarily changed rental occupancy inspection deposit amounts; (3) required Mack 

to replace water meters at a cost of $300 to $400 per property as a condition of the sale of 65 

Mack properties to an investor; (4) required Mack's lessees to pay high water bill balances 

incurred by prior lessees; (5) disconnected water service to Mack properties that had not accrued 

delinquent water charges; (6) refused to timely connect water services at one of its properties; 

and (7) refused to speak to Mack employees or agents regarding these issues. 

¶ 12 The first three counts of Mack's verified amended complaint asserted the same causes of 

action as the initial complaint. Count IV of the verified amended complaint sought damages 

against Herzog for his alleged role in the retaliation against Mack. The verified amended 

complaint alleged Herzog had supervisory authority over the Village's water and building 

departments. Mack also alleged that on numerous occasions, Herzog informed Mack principal 

Jack McClelland that the Village's actions obstructing Mack's business were Mack's fault "for 
1-13-3620 

7 

getting the lawyers involved." 

¶ 13 On February 14, 2013, the Village and Herzog filed a motion to dismiss Mack's verified 

amended complaint pursuant to section 2-619.1 of the Code. Similar to the Village's prior 

motion to dismiss, the Village and Herzog contended counts I and II of Mack's verified amended 

complaint must be dismissed pursuant to section 2-619 of the Code on the ground the Village is 

immune from liability for failing to enforce its own ordinances, pursuant to section 2-103 Tort 

Immunity Act. The Village and Herzog also contended counts III and IV of Mack's verified 

amended complaint must be dismissed pursuant to section 2-619 of the Code, arguing the Village 

and Herzog were immune from liability for failing to issue permits or certificates, and for failing 

to provide police or fire protection, pursuant to sections 2-104, 4-102, and 5-102 of the Tort 

Immunity Act (745 ILCS 10/2-104, 4-102, 5-102 (West 2010)). The Village and Herzog further 

argued counts I, II and III of Mack's verified complaint must be dismissed pursuant to section 2-

615 of the Code, arguing that these three counts failed to state a claim for which relief may be 

granted. Lastly, the Village and Herzog argued Mack's requests for attorney fees must be 

stricken as unauthorized by statute or contract. 

¶ 14 On March 22, 2013, Mack filed a response to the motion to dismiss the verified amended 

complaint. Mack argued the Village's provision of water services constituted a valid and 

enforceable contract. Mack also argued the Tort Immunity Act did not apply to its adequately 

stated claims for breach of contract claims and willful and wanton conduct. On April 16, 2013, 

the Village and Herzog filed a short reply in support of their motion to dismiss, largely 

reiterating their prior arguments.
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8 

¶ 15 On October 23, 2013, following a hearing on the matter, the circuit court entered an order 

granting the motion to dismiss Mack's verified amended complaint. On November 13, 2013, 

Mack filed a timely notice of appeal to this court.

¶ 16 ANALYSIS

¶ 17 On appeal, Mack contends the circuit court erred in dismissing counts I, II and IV of its 

verified first amended complaint.3 Mack's verified amended complaint was dismissed pursuant 

to a motion brought under section 2-619.1 of the Code, which permits section 2-615 and section 

2-619 motions to be filed together as a single motion, divided into parts which are limited to and 

specify the single section of the Code under which relief is sought. 735 ILCS 5/2-619.1 (West 

2012). In this case, the circuit court did not indicate under which section of the Code it 

dismissed each of the counts of Mack's verified amended complaint. The circuit court, however, 

may be affirmed on any basis that appears in the record. Gunthorp v. Golan, 184 Ill. 2d 432, 438 

(1998). 

¶ 18 A motion to dismiss pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 

2010)) attacks the legal sufficiency of a complaint by alleging defects on the face of the 

complaint. Vitro v. Mihelcic, 209 Ill. 2d 76, 81 (2004). When ruling on a section 2-615 motion, 

the relevant question is whether the allegations in the complaint, construed in a light most 

favorable to the plaintiff, are sufficient to state a cause of action upon which relief may be 

granted. Canel v. Topinka, 212 Ill. 2d 311, 317 (2004). A motion to dismiss should not be 

granted "unless it is clearly apparent that no set of facts can be proved that would entitle the 

plaintiff to relief." Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161 (2009). 

 3 The dismissal of count III of the verified first amended complaint is not at issue in this 

appeal.
1-13-3620 

9 

¶ 19 In contrast, a motion to dismiss pursuant to section 2-619 of the Code (735 ILCS 5/2-619 

(West 2010)) admits the legal sufficiency of a plaintiff's complaint but raises defects, defenses, 

or other affirmative matters which defeat the plaintiff's claims. Russell v. Kinney Contractors, 

Inc., 342 Ill. App. 3d 666, 670 (2003). In this case, The Village and Herzog rely on various 

provisions of the Tort Immunity Act. "Undoubtedly, the existence of tort immunity may be 

raised in a section 2-619(a)(9) motion to dismiss." Smith v. Waukegan Park District, 231 Ill. 2d 

111, 121 (2008). 

¶ 20 Under either section 2-615 or section 2-619, our review is de novo. Mauvais-Jarvis v. 

Wong, 2013 IL App (1st) 120070, ¶ 64. De novo consideration means we perform the same 

analysis that a trial court would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 

(2011). Moreover, "[a] dismissal order may be affirmed 'if it is justified in the law for any 

reason or ground appearing in the record regardless of whether the particular reasons given by 

the trial court, or its specific findings, are correct or sound.' " BDO Seidman, LLP v. Harris, 379 

Ill. App. 3d 918, 923 (2008) (quoting Natural Gas Pipeline Co. of America v. Phillips Petroleum 

Co., 163 Ill. App. 3d 136, 142 (1987)). With these principles in mind, we address the dismissal 

of counts I, II and IV of Mack's verified amended complaint.

¶ 21 Count I: Declaratory Judgment 

¶ 22 Count I of Mack's verified amended complaint requested the circuit court to issue a 

declaratory judgment. The Illinois declaratory judgment statute provides in pertinent part:

"(a) No action or proceeding is open to objection on the ground that a merely 

declaratory judgment or order is sought thereby. The court may, in cases of actual 

controversy, make binding declarations of rights, having the force of final 

judgments, whether or not any consequential relief is or could be claimed, 
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including the determination, at the instance of anyone interested in the 

controversy, of the construction of any statute, municipal ordinance, or other 

governmental regulation *** and a declaration of the rights of the parties 

interested." 735 ILCS 5/2-701(a) (West 2010). 

"The essential requirements of a declaratory judgment action are: (1) a plaintiff with a legal 

tangible interest; (2) a defendant having an opposing interest; and (3) an actual controversy 

between the parties concerning such interests." Beahringer v. Page, 204 Ill. 2d 363, 372 (2003). 

¶ 23 In this case, Mack argues it has a legal tangible interest in the strict enforcement of the 

Village water ordinance, as such enforcement would induce Mack's tenants to pay the water 

charges. In particular, Mack alleged the Village failed to perform ministerial tasks by failing to: 

(1) conduct a second water meter reading or failed to leave a notice of shut off after the second 

water meter reading; (2) "red tag" properties in preparation for discontinuance of water service 

10 days after notice was left; and (3) disconnect water service at properties more than 60 days 

delinquent in payments. An " '[o]fficial 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.' " (Internal quotation marks omitted.) Village of 

Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 496 (2001) (quoting In re Chicago 

Flood Litigation, 176 Ill. 2d 179, 194 (1997) (discussing ministerial acts in the context of the 

Tort Immunity Act)).4

 

 4 Mack's focus on the nonperformance of "ministerial" acts also parallels the law 

governing the writ of mandamus. "Mandamus is an extraordinary remedy traditionally used to 

compel a public official to perform a ministerial duty." People ex rel. Madigan v. Snyder, 208 
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11 

 

Ill. 2d 457, 464 (2004). "Generally, a writ of mandamus will be awarded only if a plaintiff 

establishes a clear right to relief, a clear duty of the public official to act, and a clear authority in 

the public official to comply with the writ." Id. at 465. "There must also be no other adequate 

remedy." Id. "The writ will not lie when its effect is to substitute the court's judgment or 

discretion for that of the body which is commanded to act." (Internal quotation marks omitted.) 

Lewis E. v. Spagnolo, 186 Ill. 2d 198, 229 (1999). "Thus, mandamus is not appropriate to 

regulate a course of official conduct or enforce the performance of official duties generally." 

Givot v. Orr, 321 Ill. App. 3d 78, 90 (2001). Generally, the decision to enforce an ordinance is 

discretionary in nature. See, e.g., McClaughry v. Village of Antioch, 296 Ill. App. 3d 636, 644-

45 (1998); see also Castillo v. Jackson, 207 Ill. App. 3d 799, 804 (1990), aff'd, 149 Ill. 2d 165 

(1992) (there is a "legion of adjudicated cases" recognizing that a prosecutor or similar enforcing 

official may exercise a virtually unreviewable. discretionary power to decline to enforce a 

statutory command (Internal quotation marks omitted.)). 

 In this case, Mack merely seeks a declaration of its rights under the Village water 

ordinance, rather than to compel Village officials to perform any particular action. This court 

has not settled the question of whether a plaintiff may, given the tendency to liberalize use of the 

declaratory judgment act, supplant mandamus in cases where the controversy is ripe. See Koziol 

v. Village of Rosemont, 32 Ill. App. 2d 320, 326-28 (1961) (in which the case did not initially 

require the use of mandamus). We need not settle that question in this case, as the Village and 

Herzog did not seek dismissal on the ground that Mack was required to pursue a writ of 

mandamus. Rather, we observe that Mack's declaratory judgment action, by alleging the Village 

failed to perform ministerial tasks, is consistent with the idea that its tangible legal interest in the 

enforcement of the Village water ordinance involves a clear duty to act on the part of Village 
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12 

¶ 24 The ordinance, however, provided that premises with delinquent accounts "may be 

considered for 'red tagging' in preparation for 'shut off' of water to the premises." (Emphasis 

added.) Thus, this aspect of the ordinance does not require the Village to "red tag" or leave a 

notice of discontinuance of water service after a second meter reading. After the expiration of 

the time for payment specified by ordinance, a list was required to be compiled of those premises 

with unpaid charges and the ordinance provided such premises "shall be authorized for 'red 

tagging' and 'shut off.' " (Emphasis added.) This court has generally interpreted the term 

"authorized" in accordance with its plain and ordinary meaning as " '[t]o empower' " or " 'to give 

a right or authority to act.' " Pierce Downer's Heritage Alliance v. Village of Downers Grove, 

302 Ill. App. 3d 286, 296 (1998) (quoting Black's Law Dictionary 122 (5th ed. 1979)). "The 

term has also been defined as 'to permit a thing to be done in the future.' " Id. (quoting Midland 

Iron & Steel Corp. v. Chicago, Rock Island & Pacific Ry. Co., 4 Ill. App. 3d 369, 371 (1972)). 

Thus, the plain terms of the ordinance gave the Village the authority to "red tag" water meters 

and discontinue water service at premises with delinquent accounts, but did not require the 

Village to do so on a particular time schedule. Moreover, the ordinance required the Village 

clerk to send notice by mail to the owner only after premises were scheduled for "red tagging," 

not immediately after the second water meter reading. 

¶ 25 Lastly, and perhaps most significantly, the ordinance in this case imposes joint and 

several liability on Mack for any unpaid water charges regarding its properties. Even assuming 

that the enforcement of the ordinance Mack seeks may encourage Mack's lessees to pay the 

water charges, the Village is legally entitled to seek the full amount of the unpaid water charges 

from Mack as the owner of the premises. See Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 

 

officials.
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801 (2009) (discussing common law doctrine of joint and several liability). The ordinance also

provided that the Village may elect to file a lien against the property or to file a civil action 

against the owner, occupant, or user of the real estate. In short, Mack failed to allege facts that 

would establish the Village failed to perform ministerial tasks, as opposed to acts of discretion or 

judgment. Accordingly, Mack failed to allege a tangible legal interest in this case. 

¶ 26 We also observe that Mack, as a lessor, has remedies other than a judicial declaration of 

rights. "The mere existence of another remedy does not require dismissal of a declaratory 

judgment action, but it may constitute sufficient grounds for dismissal in the trial court's 

discretion." Mayfair Construction Co. v. Waveland Associates Phase I Ltd. Partnership, 249 Ill. 

App. 3d 188, 203 (1993) (citing Marlow v. American Suzuki Motor Corp., 222 Ill. App. 3d 722, 

728 (1991)). The Second District of this court, however, has concluded "that a trial court may 

not dismiss a claim for declaratory relief on the sole ground that another remedy is available." 

Illinois State Toll Highway Authority v. Amoco Oil Co., 336 Ill. App. 3d 300, 311 (2003); see 

also AG Farms, Inc. v. American Premier Underwriters, Inc., 296 Ill. App. 3d 684, 692 (1998) 

(Fourth District ruling the availability of a quiet title action alone did not warrant the dismissal of 

a declaratory judgment action on the pleadings). In this case, Mack not only lacks a tangible 

legal interest in the strict enforcement of the Village water ordinance, but Mack already sought to 

protect its economic interest by imposing a duty on its lessees to pay the water charges. 5 Mack 

also could seek to protect its economic interest by including the expected water charges in the 

 5

 During oral argument, counsel for Mack observed that pursuing its tenants and former 

tenants can be difficult. Mack has not established, however, that any difficulty Mack might have 

in collecting water charges from its tenants imposes a duty on the Village to collect the water 

charges.
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rent it charges lessees, as opposed to relying on the Village to allocate its resources and exercise 

its discretion in support of Mack's business. The fact that Mack already has a remedy available 

is not the sole basis to dismiss Mack's claim for a declaratory judgment, but it is an additional 

reason supporting the dismissal in this case. 

¶ 27 Accordingly, for all the aforementioned reasons, Mack has failed to establish the circuit 

court erred in dismissing count I of the verified amended complaint. 

¶ 28 Count II: Breach of Contract 

¶ 29 Count II of Mack's verified amended complaint alleged the Village breached a contract 

with property owners to provide water service in accordance with the Village's ordinances. The 

essential elements of a breach of contract are: (1) the existence of a valid and enforceable 

contract; (2) performance by the plaintiff; (3) breach of the contract by the defendant; and (4) 

resultant injury to the plaintiff. Batson v. The Oak Tree, Ltd., 2013 IL App (1st) 123071, ¶ 35. 

In this case, the Village argues its ordinances are not a contract with property owners to provide 

water service.

¶ 30 Historically, the legal relationship between the municipality engaged in the business of 

furnishing water to its inhabitants and a water consumer was "essentially one of contract." 

Brooks v. Village of Wilmette, 72 Ill. App. 3d 753, 756 (1979) (citing People ex rel. Brockamp v. 

Schlitz Brewing Co., 261 Ill. 22 (1913), and Rosborough v. City of Moline, 30 Ill. App. 2d 167 

(1961)). The Brockcamp court, in determining water charges were not "taxes," reasoned: 

"When a municipality goes into the business of furnishing water, while such 

business is more or less public in its nature, it does so not in the capacity of local 

sovereignty. [Citation.] The obligation of the consumer to pay rests upon a 

contract entered into between the city and the consumer, which contract the 
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consumer had an option to make or not, as he pleased." (Emphasis added.) 

Brockamp, 261 Ill. at 25. 

The characterization of the relationship as contractual thus depended on the voluntary nature of 

the transaction. See id.; see also Rosborough, 30 Ill. App. 2d at 172 (property owner's 

application for water service stated the application and acceptance by the municipality 

constituted a contract).6

¶ 31 More recently, this court has ruled a municipality may mandate that property owners 

connect to the municipal water system and require payment for the service. Village of Algonquin 

v. Tiedel, 345 Ill. App. 3d 229, 236 (2003). In Village of Algonquin, this court reasoned 

government is not required to deal with citizens on a purely contractual basis where the state 

action represents a rational response to the myriad problems caused by private water wells. See 

id. at 235-36 (adopting the rationale and holding in Stern v. Halligan, 158 F.3d 729 (3d Cir. 

1998)). The court observed that when a municipality requires use of its water service, " '[t]he 

only forced contract is the broader social contract.' " Village of Algonquin, 345 Ill. App. 3d at 

236 (quoting Stern, 158 F.3d at 735). 

¶ 32 Our decision in Village of Algonquin is also consistent with the principle that " '[t]he 

legislature must be free to exercise its constitutional authority without concern that each time a 

 6

 Mack observes that this court referred to the relationship between a municipality and a 

water consumer to be contractual as recently as our decision in Tepper v. County of Lake, 233 Ill. 

App. 3d 80, 82 (1992), which involved a charge based on an allegedly inaccurate water meter. 

The Tepper court did not set forth the facts upon which it concluded the relationship was 

contractual, but it relied upon Brooks and Rosborough, cases in which the record established the 

contractual nature of the relationship. Id. 
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16 

public policy is expressed contractual rights may thereby be created.' " Unterschuetz v. City of 

Chicago, 346 Ill. App. 3d 65, 71 (2004) (quoting Fumarolo v. Chicago Board of Education, 142 

Ill. 2d 54, 106 (1990)). "A party who asserts that a State law creates contractual rights has the 

burden of overcoming the presumption that a contract does not arise out of a legislative 

enactment." Fumarolo, 142 Ill. 2d at 104. 

¶ 33 In this case, Mack's verified amended complaint alleged that the Village exercised control 

over the supply of residential properties within the Village. A Village ordinance prohibits 

private companies and individuals from supplying water to any building, structure or premises 

into which water service is introduced. Accordingly, the Village's provision of water service 

represents the exercise of its police power, not the establishment of a voluntary contractual 

relationship. See Village of Algonquin, 345 Ill. App. 3d at 236. Thus, we conclude the circuit 

court did not err in dismissing count II of Mack's verified amended complaint pursuant to section 

2-615 of the Code. 

¶ 34 Count IV: Willful and Wanton Conduct 

¶ 35 Lastly, count IV of Mack's verified amended complaint alleged that Herzog engaged in 

willful and wanton conduct in retaliation against Mack. At the outset, we observe that under 

Illinois law, a separate and independent tort of willful and wanton conduct does not exist. 

Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 235 (2010). Illinois law regards willful 

and wanton conduct as an aggravated form of negligence. Id. 

¶ 36 Herzog did not move to dismiss count IV under section 2-615 of the Code. As Herzog's 

motion was based on section 2-619 of the Code, we assume the legal sufficiency of the claim. 

Russell, 342 Ill. App. 3d at 670. Herzog's motion to dismiss relies on the Tort Immunity Act. 

The purpose of the Tort Immunity Act is to protect local public entities and public employees 
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17 

from liability arising from the operation of government. 745 ILCS 10/1-101.1 (West 2010). "In 

promulgating the Tort Immunity Act, the legislature 'sought to prevent the dissipation of public 

funds on damage awards in tort cases.' " Kevin's Towing, Inc. v. Thomas, 351 Ill. App. 3d 540, 

544 (2004) (quoting Van Meter v. Darien Park District, 207 Ill. 2d 359, 368 (2003)). The rules 

of statutory construction require courts "to ascertain and give effect to the intent of the 

legislature." In re Detention of Stanbridge, 2012 IL 112337, ¶ 70. In doing so, we "construe the 

statute as a whole and afford the language its plain and ordinary meaning." Id. We must also 

avoid rendering any part meaningless or superfluous, and consider words and phrases in light of 

other relevant provisions of the statute. Id. Moreover, "[w]hen a general statutory provision and 

a more specific one relate to the same subject, we will presume that the legislature intended the 

more specific statute to govern." Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 346 (2008). 

¶ 37 Herzog relies on three provisions of the statute. Section 2-206 of the Tort Immunity Act 

provides: 

"A public employee is not liable for an injury caused by his issuance, denial, 

suspension or revocation of or by his failure or refusal to issue, deny, suspend or 

revoke, any permit, license, certificate, approval, order or similar authorization 

where he is authorized by enactment to determine whether or not such 

authorization should be issued, denied, suspended or revoked." 745 ILCS 10/2-

206 (West 2010).7

 

 7

 Herzog's motion to dismiss referred to section 2-104 of the Tort Immunity Act, which 

provides the parallel immunity to local public entities. 745 ILCS 10/2-104 (West 2010). Mack's 

opening brief noted section 2-104 does not apply to Herzog. Mack, however, did not raise this 

objection in the circuit court. Generally, arguments not raised in the trial court cannot be raised 
1-13-3620 

18 

Section 4-102 of the Tort Immunity Act provides in part: 

"Neither a local public entity nor a public employee is liable for failure to 

establish a police department or otherwise provide police protection service or, if 

police protection service is provided, for failure to provide adequate police 

protection or service, failure to prevent the commission of crimes, failure to detect 

or solve crimes, and failure to identify or apprehend criminals." 745 ILCS 10/4-

102 (West 2010). 

Section 5-102 of the Tort Immunity Act provides: 

"Neither a local public entity that has undertaken to provide fire protection service 

 

for the first time on appeal. See Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996); 

Kalven v. City of Chicago, 2014 IL App (1st) 121846, ¶ 26. Had Mack raised this objection in 

the trial court, Herzog could have provided the correct citation to the Tort Immunity Act, as he 

has in response to Mack's argument on appeal. Accordingly, Mack's objection is forfeited on 

appeal. 

Moreover, "it is well established that an appellee may argue in support of the judgment 

on any basis which appears in the record [citation], and an appellate court may affirm a trial 

court's judgment on any grounds which the record supports [citation], even where those grounds 

were not argued by the parties [Citation]." Studt v. Sherman Health Systems, 2011 IL 108182, 

¶ 48 (Karmeier, J., specially concurrning); see Cuellar v. Hout, 168 Ill. App. 3d 416, 425 (1988); 

Redd v. Woodford County Swine Breeders, Inc., 54 Ill. App. 3d 562, 565 (1977) (and cases cited 

therein). Accordingly, Herzog is entitled to argue the circuit court was correct based on section 

2-206 of the Tort Immunity Act, particularly where Mack waited until this appeal to dispute the 

applicability of the substantively similar section 2-104. 
1-13-3620 

19 

nor any of its employees is liable for an injury resulting from the failure to 

suppress or contain a fire or from the failure to provide or maintain sufficient 

personnel, equipment or other fire protection facilities." 745 ILCS 10/5-102 

(West 2010). 

The provisions Herzog relies upon make no exception for willful or wanton conduct. See 

DeSmet v. County of Rock Island, 219 Ill. 2d 497, 515 (2006) (section 4-102 contains no 

exception for willful and wanton misconduct); Village of Bloomingdale, 196 Ill. 2d at 496 

(section 2-104 immunity for the issuance or denial of permits and approvals does not contain an 

exception for willful and wanton misconduct). Courts will not insert exceptions for "willful and 

wanton conduct" or for "corrupt or malicious motives" into provisions of the Tort Immunity Act 

when such exceptions do not appear in the plain language of the statute. See Village of 

Bloomingdale, 196 Ill. 2d at 493-94. 

¶ 38 Mack argues Herzog may be liable for willful and wanton conduct pursuant to section 2-

202 of the Tort Immunity Act, which immunizes public employees for an act or omission "in the 

execution or enforcement of any law unless such act or omission constitutes willful and wanton 

conduct." 745 ILCS 10/2-202 (West 2010). Mack also relies on section 2-208, which provides 

"[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial 

or administrative proceeding within the scope of his employment, unless he acts maliciously and 

without probable cause." 745 ILCS 10/2-208 (West 2010). 

¶ 39 In this case, Mack alleged Herzog failed to issue various permits, certificates, and other 

forms of approval. Mack also alleged Herzog was liable for the failure of the Village to provide 

police or fire protection to Mack properties. These allegations are encompassed by sections 2-

206, 4-102, and 5-102 of the Tort Immunity Act, which specifically address the issuance or 
1-13-3620 

20 

denial of governmental approvals, and the failure to provide police or fire protection services. 

Accordingly, sections 2-206, 4-102, and 5-102 of the Tort Immunity Act—the provisions of the 

statute more specifically applicable to Mack's allegations—are controlling. Abruzzo, 231 Ill. 2d 

at 346. Consequently, the Mack's claim of willful and wanton conduct fails regarding these 

allegations. See DeSmet, 219 Ill. 2d at 515; Village of Bloomingdale, 196 Ill. 2d at 496.8

 8

 In Village of Sleepy Hollow v. Pulte Home Corp., 336 Ill. App. 3d 506 (2003), the 

appellate court ruled that the immunity provided by section 2-201 of the Tort Immunity Act for 

discretionary policy decisions does not always take precedence over the provisions of section 2-

208. Id. at 510. The Village of Sleepy Hollow court, however, reasoned that section 2-201 does 

not always control because "[s]ection 2-201 begins with the phrase, '[e]xcept as otherwise 

provided by Statute' (745 ILCS 10/2-201 (West 2000)), which clearly indicates that the 

legislature did not intend for public employees to receive immunity from liability in all situations 

involving policy and discretion." Id. 

 We observe that our supreme court has ruled that willful and wanton conduct cannot 

deprive a municipality of an immunity granted by section 2-201. Harinek v. 161 North Clark 

Street Ltd. Partnership, 181 Ill. 2d 335, 347 (1998); see also Kevin's Towing, Inc, 351 Ill. App. 

3d at 547-48 (categorizing actions as nondiscretionary solely based on a public employee's intent 

would conflict with the supreme court's rulings that section 2-201 immunity is not limited by 

willful and wanton conduct or by corrupt or malicious motives). Our supreme court has stated 

that when the legislature intends to except willful and wanton misconduct from the provisions of 

an immunity statute, it has " ' "unambiguously done so." ' " DeSmet, 219 Ill. 2d at 514 (quoting 

Village of Bloomingdale, 196 Ill. 2d at 491, quoting Barnett v. Zion Park District, 171 Ill. 2d 

378, 391 (1996)). We need not resolve the apparent tension between Harinek and Village of 
1-13-3620 

21 

¶ 40 Mack, however, also alleged Herzog issued citations without an opportunity to cure 

violations and subjected Mack properties to arbitrary reinspection. These allegations relate to the 

enforcement of the law. Thus, section 2-202, which does not immunize willful and wanton 

conduct, is applicable to these allegations. See Abruzzo, 231 Ill. 2d at 346. Moreover, the 

issuance of a citation may be considered the institution of a judicial or administrative proceeding. 

See, e.g., Village of Glenview v. Buschelman, 296 Ill. App. 3d 35, 37 (1998). Accordingly, 

section 2-208 of the Tort Immunity Act also may apply to the allegations regarding the issuance 

of citations. We therefore turn to consider whether Herzog engaged in willful and wanton 

conduct or with malice absent probable cause regarding these allegations. 

¶ 41 "Willful and wanton conduct" is defined by the Tort Immunity Act as "a course of action 

which shows an actual or deliberate intention to cause harm or which, if not intentional, shows 

an utter indifference to or conscious disregard for the safety of others or their property." 745 

ILCS 10/1-210 (West 2010). The violation of self-imposed rules or internal guidelines does not 

normally impose a legal duty and thus would not constitute negligence or willful and wanton 

conduct. Luss v. Village of Forest Park, 377 Ill. App. 3d 318, 336 (2007). Although generally a 

question of fact, a court may "hold as a matter of law that a public employee's actions did not 

amount to willful and wanton conduct when no other contrary conclusion can be drawn." Young 

v. Forgas, 308 Ill. App. 3d 553, 562 (1999). 

¶ 42 In this case, Mack's verified amended complaint alleges that on numerous occasions, 

 

Sleepy Hollow in this case. Sections 2-206, 4-102, and 5-102 of the Tort Immunity Act, unlike 

section 2-201, do not contain express exceptions for the application of other statutes. 745 ILCS 

10/2-206, 4-102, 5-102 (West 2010). Thus, the reasoning of Village of Sleepy Hollow does not 

apply to this case. 
1-13-3620 

22 

Herzog informed Mack principal Jack McClelland that the Village's actions obstructing Mack's 

business were Mack's fault "for getting the lawyers involved." Mack thus alleges a course of 

action which shows an actual or deliberate intent. The injury alleged from the issuance of the 

citations and the reinspections, however, is lost revenue. The issue, therefore, is whether such 

damages constitute "harm" within the scope of section 1-210 of the Tort Immunity Act. 

¶ 43 In cases analyzing willful and wanton conduct under section 1-210, this court has ruled 

" '[i]t is essential that plaintiff allege and establish that when the defendant acted, or failed to act, 

he had knowledge, or should have had the knowledge under the circumstances, that his conduct 

posed a high probability of serious physical harm to others.' " (Emphasis added.) Choice v. 

YMCA of McHenry County, 2012 IL App (1st) 102877, ¶ 72 (quoting Pomrehn v. Crete-Monee 

High School District, 101 Ill. App. 3d 331, 335 (1981)). Considering the term "harm" in light of 

other relevant provisions of the statute, our interpretation of the term in Choice is consistent with 

the remainder of section 1-210, which refers to "an utter indifference to or conscious disregard 

for the safety of others or their property." (Emphasis added.) 745 ILCS 10/1-210 (West 2010). 

Similarly, section 500 of the Restatement (Second) of Torts, discussing reckless conduct, refers 

to conduct that "creates an unreasonable risk of physical harm to another." (Emphasis added.) 

Restatement (Second) of Torts § 500 (1965). Our supreme court has relied on section 500 of the 

Restatement (Second) of Torts in analyzing willful and wanton conduct under section 1-210 of 

the Tort Immunity Act. Burke v. 12 Rothschild's Liquor Mart, Inc., 148 Ill. 2d 429, 449 (1992). 

Accordingly, section 500 of the Restatement (Second) of Torts informs our analysis of the statute 

in this case.

¶ 44 Furthermore, Illinois law regards willful and wanton conduct as an aggravated form of 

the tort of negligence (Krywin, 238 Ill. 2d at 235) and we are interpreting the Tort Immunity Act, 
1-13-3620 

23 

the purpose of which is to prevent the dissipation of public funds on damage awards in tort cases

(Kevin's Towing, Inc., 351 Ill. App. 3d 544). "At common law, solely economic losses are 

generally not recoverable in tort actions." In re Chicago Flood Litigation, 176 Ill. 2d at 198. 

With exceptions not alleged in this case, "[a]bsent injury to a plaintiff's person or property, a 

claim presents an economic loss not recoverable in tort." Id. at 201. 

¶ 45 In this case (unlike, for example, the alleged failure to provide fire protection), Mack 

does not allege the reinspections or the issuance of citations resulted in physical harm to persons 

or property. Rather, Mack's verified amended complaint alleged Mack was required to pay fees 

and was in danger of losing tenants who sought to move into various Mack properties. Mack 

thus alleged economic losses that are generally not recoverable in tort. Such losses are not the 

"harm" addressed in the section 1-210 definition of willful and wanton conduct. Accordingly, 

the immunity provided by section 2-202 of the Tort Immunity Act applies, rather than the 

exception stated therein. 

¶ 46 Lastly, there is the question of whether Mack sufficiently alleged that Herzog, by 

ordering the issuance of the citations, acted "maliciously and without probable cause." 745 ILCS 

10/2-208 (West 2010). We observe that the language of section 2-208 is conjunctive, requiring 

Mack to allege both malice and the absence of probable cause. See Village of Sleepy Hollow, 

336 Ill. App. 3d at 512 (and cases cited therein). "The absence of probable cause cannot be 

inferred from malice." Knox County v. Midland Coal Co., 265 Ill. App. 3d 782, 788 (1994) (and 

cases cited therein).

¶ 47 In this case, Mack alleged actions and statements by Herzog from which malice regarding 

Mack may reasonably be inferred. Mack also alleged that the Village (on information and belief 

at the direct order of Herzog), contrary to its prior practice, commenced issuing citations 
1-13-3620 

24 

regarding various Mack properties without providing an opportunity to cure alleged violations. 

This allegation does not assert or support an inference that the citations were issued without 

probable cause. Mack also alleged that its properties were subject to arbitrary reinspections, but 

Mack has cited no authority establishing or suggesting that a property inspection is the institution 

of an administrative or judicial proceeding. Thus, the allegations fall within the scope of the 

immunity provided by section 2-208 of the Tort Immunity Act, rather than the exception stated 

therein. 

¶ 48 For all of the aforementioned reasons, the circuit court did not err in dismissing count IV 

of Mack's verified amended complaint pursuant to section 2-619(a)(9) of the Code. 

¶ 49 Lastly, Mack suggested during oral argument that the case be remanded with leave to 

replead. "Ordinarily a plaintiff whose complaint is dismissed for failure to state a cause of action 

can complain of a judgment being entered in bar of action without leave to replead only if it 

seeks and is denied leave to replead. [Citation.]" Eversole v. Wasson, 80 Ill. App. 3d 94, 97 

(1980). In this case, Mack filed no motion to replead in the circuit court. Mack also informed 

the court during oral argument that there was no transcript of proceedings regarding the dismissal 

of the verified amended complaint. Furthermore, "[a]ny party who seeks on appeal to amend his 

or her pleadings or the process in the record on appeal shall present a written application 

therefor, supported by affidavit." Ill. S. Ct. R. 362(a) (eff. Feb. 1, 1994). Mack filed no such 

application in this appeal. Indeed, Mack did not seek leave to replead in his appellate briefs. 

Accordingly, we decline to remand with leave to replead in this case.

¶ 50 CONCLUSION

¶ 51 For all of the aforementioned reasons, the judgment of the circuit court of Cook County is

affirmed.
1-13-3620 

25 

¶ 52 Affirmed. 

¶ 53 JUSTICE GORDON, concurring in part and dissenting in part: 

¶ 54 I concur with the majority's order affirming the dismissal of count 1, but not counts II and 

IV. As I explain below, I would reverse the trial court's dismissal of plaintiff's counts II and IV 

and, thus, I must respectfully dissent. 

¶ 55 I. Count II: Breach of Contract

¶ 56 The majority affirms the dismissal of count II, for breach of contract, on the ground that 

the Village's provision of water is an exercise of its police power and therefore it cannot 

constitute a contract. The majority acknowledges that, "[h]istorically, the legal relationship 

between the municipality engaged in the business of furnishing water to its inhabitants and a 

water consumer was 'essentially one of contract.' " Supra ¶ 30. But the majority rejects this line 

of cases based on one appellate court case: Village of Algonquin v. Tiedel, 345 Ill. App. 3d 229, 

236 (2003). 

¶ 57 However, the Algonquin court was faced with a different issue than the issue at bar. In 

Algonquin, the appellate court held that, pursuant to its police power, a municipality could 

require residents to use its water. Algonquin, 345 Ill. App. 3d at 234 (an ordinance requiring 

residents to use the village's water is a valid exercise of the village's police power). By contrast, 

in the case at bar, plaintiff is not disputing the Village's power to require use of its water; rather, 

plaintiff is contesting the allegedly arbitrary and capricious manner in which the Village is 

providing that service. In the decade since Algonquin was decided, it has been cited by one 

published case, and that case cited it for the proposition which it held, namely, that a 

municipality's police power permits it to require use of its water. Board of Education of Dolton 

School District 149 v. Miller, 349 Ill. App. 3d 806, 812 (2004) (parenthetical described 
1-13-3620 

26 

Algonquin's holding as "compelling homeowners to connect to municipal water supply"). Thus, 

the one case relied on by the majority is inapposite and not persuasive on the point for which it is 

cited. 

¶ 58 II. Count IV: Against the Village Manager

¶ 59 Second, the majority affirms the dismissal of count IV, which was brought against 

defendant Bert Herzog, the village manager of Dolton. 

¶ 60 A. Plaintiff's Allegations 

¶ 61 This count alleged that Herzog has supervisory authority over all village departments, 

including the water and building departments and that he committed willful and wanton conduct 

against plaintiff for " 'getting the attorneys involved.' " Plaintiff alleged that "all of the Village's 

retaliatory actions as outlined herein [in the complaint] were performed at Herzog's direction or 

with his express approval." 

¶ 62 Count IV further alleged:

 "71. Each of the retaliatory acts outlined in this Complaint constitute 

willful and wanton abuses of the Village's responsibilities under its ordinances to 

provide public safety and water services to property owners and tenants within its 

borders. On information and belief, Village Manager, Bert Herzog, has ordered 

Dolton employees to do anything they can to harass Mack and hinder its 

operations within the Village while this litigation is ongoing.

 72. Mack has incurred and continues to incur damages on a daily basis, 

as the abuses continue. There is no adequate remedy at law to Mack as a property 

owner in the Village. Mack cannot refuse to submit to re-inspection, or place 

tenants in the properties that currently require rental approval, as it will be forced 
1-13-3620 

27 

to incur additional violations and citations from the Village. Moreover, Mack 

cannot force the Village to issue transfer stamps, and cannot legally provide 

police protection to its property managers." 

¶ 63 B. Defendants' Motion to Dismiss 

¶ 64 1. Section 2-619 

¶ 65 Defendants moved to dismiss count IV pursuant to section 2-619, on the ground that 

Herzog was immune under the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2012)) (the 

Act). While a motion to dismiss pursuant to section 2-615 challenges the legal sufficiency of a 

complaint based on defects apparent on its face (Lewis v. Heartland Food Corp., 2014 IL App 

(1st) 123303, ¶ 7 (citing Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006)), a motion 

to dismiss pursuant to section 2-619 admits the legal sufficiency of the complaint but asserts an 

affirmative defense or other matter that avoids or defeats plaintiff's claim. Bank of America, N.A. 

v. Adeyiga, 2014 IL App (1st) 131252, ¶ 57 (citing DeLuna v. Burciaga, 223 Ill. 2d 49, 59 

(2006)); 735 ILCS 5/2-619(a)(9) (West 2012) (a motion under section 2-619 argues that "the 

claim asserted against defendant is barred by *** affirmative matter avoiding the legal effect of 

or defeating the claim").

¶ 66 2. Statutory Sections Cited by Defendant 

¶ 67 Since defendants moved under section 2-619, we do not consider whether count IV states 

a cause of action but consider only whether the statutory sections cited by defendants constitute 

affirmative matter defeating plaintiff's claim.

¶ 68 In their motion to dismiss, defendants cited three sections of the Tort Immunity Act: (1) 

section 2-104, concerning the issuance, denial, suspension or revocation of permits (745 ILCS 

10/2-104 (West 2012)); (2) section 4-102, concerning police protection (745 ILCS 10/4-102 
1-13-3620 

28 

(West 2012)); and (3) section 5-102, concerning the failure to suppress or contain a fire (745 

ILCS 10/5-102 (West 2012)). 

¶ 69 Section 2-104 provides in full:

 "A local public entity is not liable for an injury caused by the issuance, 

denial, suspension or revocation of or by the failure or refusal to issue, deny, 

suspend or revoke 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, denied, suspended 

or revoked." 745 ILCS 10/2-104 (West 2012). 

The majority concluded that the above-quoted section, which refers only to a public entity and 

not to an employee, did not apply to defendant Herzog. Supra ¶ 37 n.7. 

¶ 70 Section 4-102 provides in full: 

"Neither a local public entity nor a public employee is liable for failure to 

establish a police department or otherwise provide police protection service or, if 

police protection service is provided, for failure to provide adequate police 

protection or service, failure to prevent the commission of crimes, failure to detect 

or solve crimes, and failure to identify or apprehend criminals. This immunity is 

not waived by a contract for private security service, but cannot be transferred to 

any non-public entity or employee." 745 ILCS 10/4-102 (West 2012). 

¶ 71 Section 5-102 provides in full: 

"Neither a local public entity that has undertaken to provide for fire 

protection service nor any of its employees is liable for an injury resulting from 

the failure to suppress or contain a fire or from the failure to provide or maintain 
1-13-3620 

29 

sufficient personnel, equipment or other fire protection facilities." 745 ILCS 

10/5-102 (West 2012). 

¶ 72 In addition to the above-quoted sections, the majority holds that defendants can raise, for 

the first time on appeal, a statutory section that they did not cite before the trial court, namely, 

section 2-206 (745 ILCS 10/2-206 (West 2012)). Supra ¶ 37 n.7. The majority holds that 

defendants can do this because plaintiff should have realized that defendants were citing the 

wrong section and should have objected below, and that because plaintiff did not flag for 

defendants a better section to cite, plaintiff cannot object now to defendants raising it for the first 

time on appeal. Supra ¶ 37 n.7. I know of no rule of waiver that requires a plaintiff's attorney to 

advise the defendants of a better argument to make or a better statutory section to cite. It was 

defendants' burden to raise the "affirmative matter" barring plaintiff's claim in their 2-619 motion 

to dismiss. 735 ILCS 5/2-619 (West 2012). By failing to make any arguments concerning 

section 2-206 in their brief to the court below, defendants waived the issue for our consideration 

on appeal. Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842, ¶ 58 (issues not raised 

in the trial court are waived and may not be raised for the first time on appeal). 

¶ 73 C. Plaintiff's Response 

¶ 74 1. Section 2-101: Contract Exception 

¶ 75 In its response to defendants' motion to dismiss, plaintiff argued, first, that the Tort 

Immunity Act does not apply to contracts. Section 2-101 of the Act provides: "Nothing in this 

Act affects the liability of any public entity or public employee based on: (a) Contract." 745 

ILCS 10/2-101 (West 2012). As I discussed above, since water provision has been historically 

viewed as a contract, the Tort Immunity Act does not apply to plaintiff's claims. 

¶ 76 2. Exceptions for Wanton and Willful Conduct 
1-13-3620 

30 

¶ 77 Second, plaintiff argued in its response to the trial court that, even if the rubric of the Act 

applied, plaintiff's claim fell into the Act's exceptions for wanton and willful conduct. 

Specifically, plaintiff cited the exceptions contained in: (1) section 2-202, which concerns the 

execution or enforcement of the law by public employees (745 ILCS 10/2-202 (West 2012)); and 

(2) section 2-208, which concerns the institution or prosecution of judicial or administrative 

proceedings (745 ILCS 10/2-208 (West 2012)). 

¶ 78 Section 2-202 provides in full: 

 "A public employee is not liable for his act or omission in the execution or 

enforcement of any law unless such act or omission constitutes willful and wanton 

conduct." 745 ILCS 10/2-202 (West 2012). 

¶ 79 Section 2-208 provides in full: 

"A public employee is not liable for injury caused by his instituting or 

prosecuting any judicial or administrative proceeding within the scope of his 

employment, unless he acts maliciously and without probable cause." 745 ILCS 

10/2-208 (West 2012). 

¶ 80 With respect to the above-quoted sections, the majority holds, first, that the sections cited 

by defendants provide absolute immunity and that they trump the "willful and wanton" and 

"maliciously" language provided in sections 2-202 and 2-208 (745 ILCS 10/2-202, 2-208 (West 

2012)). Supra ¶ 39. However, the appellate court rejected a similar argument in Village of 

Sleepy Hollow v. Pulte Home Corp., 336 Ill. App. 3d 506 (2003). In Sleepy Hollow, the village 

argued that the immunity provided by section 2-201 for discretionary acts was absolute and thus 

trumped the exception in section 2-208, which is one of the sections at issue in the case at bar. 

Sleepy Hollow, 336 Ill. App. 3d at 510. By contrast, the opposing party in Sleepy Hollow argued 
1-13-3620 

31 

that section 2-208 was "more specific" and thus it was the section that "must apply." Sleepy 

Hollow, 336 Ill. App. 3d at 510. 

¶ 81 The Sleepy Hollow court rejected both arguments, holding that the various sections of the 

Act "operate in conjunction with each other." Sleepy Hollow, 336 Ill. App. 3d at 510. The court 

observed that, "[w]hen construing immunities under the Immunity Act, a court must view the 

statute as a whole, with all relevant parts considered together." Sleepy Hollow, 336 Ill. App. 3d 

at 510. The court held that both sections applied to offer immunity to the village in different 

ways, but that the "maliciously" language in section 2-208 provided an exception to the 

immunity protections set forth in both section 2-208 and other parts of the Act. Sleepy Hollow, 

336 Ill. App. 3d at 510, 512. 

¶ 82 The issue before us is different from the issue in Abruzzo v. City of Park Ridge, 231 Ill. 

2d 324 (2008), relied on by the majority. Supra ¶¶ 36, 40. In Abruzzo, 231 Ill. 2d at 327, the 

issue was whether the Emergency Medical Services Systems Act (the EMS Act) (210 ILCS 

50/3.150(a) (West 2004)) or the Tort Immunity Act applied. Both acts appeared to apply, and 

they conflicted with each other. Abruzzo, 231 Ill. 2d at 344. Forced to pick between two 

conflicting acts, the court picked the EMS Act because it was both the "more specific" and the 

"more recent" of the two separate legislations. Abruzzo, 231 Ill. 2d at 346. By contrast, in the 

instant case, we are called upon to harmonize the sections of one act. 

¶ 83 Second, the majority holds that, since the exceptions for willful and wanton conduct do 

not appear in the same statutory sections cited by defendant Herzog, then applying them here 

would, in effect, "insert" exceptions that "do not appear in the plain language of the statute." 

Supra ¶ 37. However, when we refer to sections cited by defendant Herzog, we do not consider 

section 2-104 (745 ILCS 10/2-104 (West 2012)) because, as the majority correctly observed, it 
1-13-3620 

32 

does not apply to Herzog. Supra ¶ 37 n.7. Also, as we explained above, defendant Herzog 

waived any arguments based on section 2-206 (745 ILCS 10/2-206 (West 2012)) by failing to 

raise it in the court below. Thus, the only sections cited by Herzog that are under consideration 

are sections 4-102 and 5-102 (745 ILCS 10/4-102, 5-102 (West 2012)) which concern the 

provision of fire and police protection and which affect only a small part of plaintiff's 

allegations.

¶ 84 In addition, the exceptions are in statutory sections cited by plaintiff. While "we may not 

read into the statute limitations that the legislature did not express" (Sleepy Hollow, 336 Ill. App. 

3d at 511 (citing Village of Bloomingdale v. CDG Enterprises, Inc., 196 Ill. 2d 484, 493 

(2001))), the exceptions in sections 2-202 and 2-208 are expressly stated by the legislature in the 

Act. " 'The legislature has recognized exceptions to its grants of immunity and enumerated those 

exceptions in the plain language of the Act.' " Sleepy Hollow, 336 Ill. App. 3d at 511 (quoting 

Village of Bloomingdale, 196 Ill. 2d at 494-95 (specifically listing sections 2-202 and 2-208 as 

examples of these exceptions)). 

¶ 85 The issue before us is also different from the issue in Village of Bloomingdale, relied on 

by the majority. Supra ¶¶ 37, 39. In Village of Bloomingdale, the issue was whether "the Illinois 

Constitution prohibits the insertion of the common law 'corrupt or malicious motives' exception 

into the immunities provided by the Act." Village of Bloomingdale, 196 Ill. 2d at 486. Holding 

that the exception could not be read into the Act, the court observed that "no provision of the Act 

contains an exception for 'corrupt or malicious motives.' " (Emphasis in original.) Village of 

Bloomingdale, 196 Ill. 2d at 495. By contrast, in the case at bar, we are discussing exceptions 

expressly provided in the Act itself. 

¶ 86 Third, the majority acknowledges that section 2-208 concerns proceedings and that this 
1-13-3620 

33 

section "may" apply. Supra ¶ 40. However, the majority does not consider the proceeding 

alleged by plaintiff. Plaintiff's amended complaint, which is the complaint at issue, alleges in 

count IV that: 

 "68. In July 2012, [plaintiff] Mack sent a copy of a draft Complaint to 

Village Manager Bert Herzog and Village Attorney Evangeline Levison 

indicating that, should matters continue, it would be forced to file suit. The 

Village's campaign of retaliation began shortly thereafter."

Thus, the complaint alleges that the "proceeding" is this lawsuit. 745 ILCS 10/2-208 (West 

2012). 

¶ 87 Section 2-208 says "instituting or prosecuting," so the word "prosecuting" must mean 

something different than "instituting," otherwise it would be superfluous. In re Detention of 

Stanbridge, 2012 IL 112337, ¶ 70 (we must interpret a statute so as to avoid rendering any part 

"superfluous"). In interpreting a statute, we must "afford the language its plain and ordinary 

meaning." Stanbridge, 2012 IL 112337, ¶ 70. The first meaning of "prosecute" in the dictionary 

is: "To pursue or persist in so as to complete." The American Heritage Dictionary, Second 

College Edition (1982), p. 994. It is defendant Herzog's retaliatory actions as part of pursuing 

this lawsuit that are the subject of count IV, and section 2-208 withholds immunity if he acts 

maliciously and without probable cause, which is what plaintiff has alleged. 5 ILCS 10/2-208 

(West 2012). Since defendants moved under section 2-619, we accept the legal sufficiency of 

these allegations. Bank of America, 2014 IL App (1st) 131251, ¶ 57 

¶ 88 Thus, even assuming arguendo that the Act applied to contract claims, count IV falls into 

the exceptions expressly carved out by the Act in section 2-202 for wanton and willful conduct 

and section 2-208 for malicious conduct. 
1-13-3620 

34 

¶ 89 Conclusion 

¶ 90 For the foregoing reasons, I would reverse the trial court's dismissal of plaintiff's counts 

II and IV and, thus, I must respectfully dissent.