York Center Fire Protection District v. Kubiesa, Spiroff, Gosselar and Acker, P.C. and John Fennell

No. 2--06--0359 Filed: 7-26-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
YORK CENTER FIRE PROTECTION ) Appeal from the Circuit Court
DISTRICT, ) of Du Page County.
)
Plaintiff-Appellant, )
)
v. ) No. 04--L--816
)
KUBIESA, SPIROFF, GOSSELAR AND )
ACKER, P.C., and JOHN FENNELL, ) Honorable
) John T. Elsner,
Defendants-Appellees. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Plaintiff, York Center Fire Protection District, appeals from the trial court's dismissal, with
prejudice, of its second amended complaint alleging professional negligence against defendants,
Kubiesa, Spiroff, Gosselar & Acker, P.C., and its agent, John Fennell. Plaintiff argues that the trial
court erred in concluding that it failed to adequately plead damages. For the reasons that follow, we
affirm.
On October 3, 2005, plaintiff filed its second amended complaint against defendants, alleging
the following. In September 2001, plaintiff determined that a referendum was necessary to increase
its revenue and asked defendants, specifically Fennell, to make recommendations regarding a
referendum. Defendants were aware of the amount of increased tax revenue that plaintiff desired to
No. 2--06--0359
obtain through the referendum process. Two public questions were placed on the ballot on
November 5, 2002, based on defendants' final recommendations.
Prior to voting, the voting public was informed that the upcoming referendum would result
in a 35% increase to the taxable rate; however, in reality, the taxable rate recommended by defendants
was not more than 10%. The voting public was also advised that plaintiff would receive
approximately $400,000 in funding under the tax increase; however, the most that could be obtained
was $90,000. The referendum passed, and plaintiff later learned that its "intent and purpose behind
the referendum had not been met."
According to plaintiff, as a result of its reliance on defendants' erroneous legal advice, it
sustained losses of no less than $400,000 in property tax revenue. "[P]laintiff had presented the
voters with a plan for increased operations, facilities, and equipment, which could not be realized due
to the recommendations of the defendant, and had to be put on reserve for two years." Plaintiff was
also required to submit a subsequent referendum to voters, which passed. According to plaintiff,
from the passage of the first referendum to the passage of the second referendum, it suffered damages
"identifiable at no less than 25% to 30% loss of revenue, which amounts to in excess of $200,000.00
per year."
On October 7, 2005, defendants moved to dismiss the complaint under section 2--615 of the
Code of Civil Procedure (the Code) (735 ILCS 5/2--615 (West 2004)). Defendants argued that
plaintiff failed to adequately plead both proximate cause and damages. Plaintiff filed a response, and
defendants filed a reply. On March 6, 2006, the trial court granted defendants' motion. The trial
court held that although "[t]here is no question that the plaintiff has pled proximate cause," plaintiff
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failed to plead damages. Plaintiff timely appealed. The issue before the court is whether the
complaint states a cause of action upon which relief could be granted.
A motion to dismiss under section 2--615 of the Code attacks the legal sufficiency of a
complaint by alleging defects appearing on its face and should be granted if the complaint does not
allege sufficient facts to state a cause of action. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 484
(1994). When reviewing a motion to dismiss under section 2--615, the court must accept as true all
well-pleaded facts and interpret the allegations in a light most favorable to the plaintiff. Young v.
Bryco Arms, 213 Ill. 2d 433, 441 (2004). "If, however, after any legal and factual conclusions are
disregarded, the complaint does not allege sufficient facts to state a cause of action, the motion to
dismiss should be granted." Rockford Memorial Hospital v. Havrilesko, 368 Ill. App. 3d 115, 120
(2006). Our review is de novo. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080,
1084 (1994).
A plaintiff in a legal malpractice action must plead the following: (1) the existence of an
attorney-client relationship; (2) a duty arising from that relationship; (3) a breach of that duty by the
defendant; (4) proximate cause; and (5) damages. Claire Associates v. Pontikes, 151 Ill. App. 3d
116, 122 (1986). Here, we agree with the trial court that plaintiff failed to plead damages.
Plaintiff pleaded that, if the first referendum had been proper, plaintiff would have obtained
greater revenue in the period between the passage of the first referendum and the passage of the
second. However, a municipal corporation is not entitled to make a profit (Schuman v. Chicago
Transit Authority, 407 Ill. 313, 320 (1950)), and thus a loss of money, in and of itself, cannot damage
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it. As the trial court put it, "a municipal corporation cannot accumulate money for the purpose of
accumulating money." Accordingly, plaintiff had to plead damages beyond the mere loss of money.
To that end, plaintiff attempted to plead that it was damaged by the delay in obtaining its
desired revenue. But plaintiff did not succeed. It is true that, in a legal malpractice action, a plaintiff
may sue for the loss of the use of money, which ordinarily is an economic loss that the Moorman
doctrine precludes in tort. See Calcagno v. Personalcare Health Management, Inc., 207 Ill. App. 3d
493, 501 (1991) (loss of use of money is subject to Moorman doctrine); Radtke v. Murphy, 312 Ill.
App. 3d 657, 664-65 (2000) (legal malpractice is exception to Moorman doctrine). However, that
loss generally is measured in interest (see Illinois State Toll Highway Authority v. American National
Bank & Trust Company of Chicago, 162 Ill. 2d 181, 199 (1994)), and plaintiff here did not allege that
it had lost interest. Instead, it alleged only that it had to wait two years to upgrade its "operations,
facilities, and equipment."
Undoubtedly, plaintiff was temporarily unable to implement its plan, but it simply did not
allege any resulting loss. It did not plead that its upgrades were so immediately necessary that it was
forced to spend alternative funds to effect them. It did not plead that its outmoded attributes
subjected it to liability for some unfortunate accident. It did not even plead that it was forced to incur
attorney fees or other costs to submit the second referendum. Again, plaintiff alleged only that it was
delayed in implementing its plan. That, without more, did not establish damages. See Harlev v.
Sanitary District of Chicago, 226 Ill. 213, 225 (1907) (public body may not recover damages for
delay in completion of public improvement, as injury is mere public inconvenience and is incapable
of measurement). Accordingly, the trial court properly granted defendants' motion to dismiss.
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We affirm the judgment of the circuit court of Du Page County.
Affirmed.
ZENOFF, J., concurs.
JUSTICE O'MALLEY, dissenting:
I disagree with the majority's conclusion that plaintiff did not adequately plead damages in this
case. Plaintiff pleaded that "damages as a result of the passage of the first referendum to the second
referendum are identifiable at no less than 25% to 30% loss of revenue, which amounts to in excess
of $200,000.00 per year." Reading this allegation liberally, as I must at this stage in proceedings (see
Young, 213 Ill. 2d at 441), I infer the allegation that the referendum was for ongoing revenue, and
not just for the two years preceding the second referendum. My reading is consistent with the Fire
Protection District Act (Act), which provides that the ordinance allowing the levy and collection of
taxes for a fire district "constitutes authority *** to extend taxes annually at the rate so provided."
(Emphasis added.) 70 ILCS 705/14 (West 2004). Thus, I disagree with the majority that "plaintiff
alleged only that it was delayed in implementing its plan." Slip op. at 4. I read plaintiff as alleging
that, until the proper referendum passed, each year's installment of revenue was lower than plaintiff
would have otherwise received. In other words, I interpret plaintiff as alleging that it intended the
original referendum to result in its receiving $400,000 each revenue period until the voting public
reversed the original referendum. To illustrate with numbers, if plaintiff received only $90,000 in the
first installment, but received the full $400,000 in the second installment, it received $310,000 less
than the $800,000 it would have received.
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Though plaintiff may have been able to implement many of the improvements it sought to
make once the proper referendum was passed, the delay in implementing the first round of
improvements was not the only harm plaintiff suffered, because plaintiff could have made more of the
improvements if it had also received the money after the first referendum. I read plaintiff's second
amended complaint as alleging that it essentially was unable to implement the full first round of
improvements until it received the money that otherwise would have gone to a second round of
improvements. Then, I infer, the first round of improvements was implemented, but the second round
was not made, and so on. Plaintiff will perpetually forgo one year of improvements until the shortfall
is corrected. This is not just a delay--plaintiff lost one round of improvements. Put plainly with the
same illustrative numbers I use above, by the time the second referendum passed, plaintiff should have
been able to implement a total of $800,000 worth of improvements, but, due to defendants' alleged
negligence, it was able to implement only a total of $490,000. No matter how many installments
plaintiff receives, plaintiff will still have received less revenue due to the shortfall from the first
referendum.
The majority holds that plaintiff's alleging a loss of revenue is not enough to plead damages:
"[A] municipal corporation is not entitled to make a profit [citation], and thus a loss of
money, in and of itself, cannot damage it. As the trial court put it, 'a municipal corporation
cannot accumulate money for the purpose of accumulating money.' Accordingly, plaintiff had
to plead damages beyond the mere loss of money." Slip op. at 3-4.
First, plaintiff specifically itemized in its complaint how it would have spent the missing money.
Plaintiff alleged that it intended to use its increased revenue "for increased operations, facilities, and
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equipment," including "building renovation ($1.2 million ***), purchase of a heavy rescue squad
($386,000.00), a new ambulance ($157,000.00), hiring of a full-time fire chief ($76,000.00), and
hiring of two part-time firefighters ($70,000.00)." The Act specifically allows a fire protection
district to "accumulate funds for the purposes of building, repairing and improving firehouses," among
other things. 70 ILCS 705/14 (West 2004). Therefore, plaintiff did not seek to "accumulate money
for the purpose of accumulating money," but, rather, if it sought to accumulate money, it planned to
do so for purposes specifically allowed under the Act.
Second, I wonder how the majority would respond to a criminal defendant who is convicted
of embezzling from a municipal corporation and who appeals on the basis that "a loss of money, in
and of itself, cannot damage" a municipality.
Third, even assuming that plaintiff could not accumulate money for any purpose, I do not
agree with the above-quoted statement from the majority. I do not think it follows that, because a
municipal corporation cannot profit, it cannot be damaged by a loss of money. Rather, I believe that,
if a municipal corporation cannot profit, then, as the trial court said, it cannot "accumulate money for
the purpose of accumulating money." However, it may still accumulate assets and collect revenue,
and, if someone causes the municipality to lose or forgo those assets or prevents the municipality
from realizing that revenue, the municipality is damaged. Revenue is not the same as profit. Plaintiff
may not have been able to keep the $310,000 as profit, but it could have spent it on an ambulance.
I find precedent to support the notion that an entity may be damaged by loss of revenue even
if it is not entitled to profit from the revenue. For example, in Jewish Hospital of St. Louis, Missouri
v. Boatmen's National Bank of Belleville, 261 Ill. App. 3d 750 (1994), the plaintiffs, two not-for-
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profit entities that were remainder beneficiaries of two testamentary trusts, sued, inter alia, the
attorney who drafted the will and represented the estate, on the ground that the attorney's negligence
caused the estate "to unnecessarily pay $878,709 in estate taxes and interest, which reduced the
amount plaintiffs [received]." Jewish Hospital, 261 Ill. App. 3d at 753. Though it did not specifically
address the issue here, the appellate court reversed the trial court's grant of summary judgment for
defendants and held that the defendant lawyer could be held liable to the not-for-profit plaintiffs for
his alleged negligence in drafting the will. Jewish Hospital, 261 Ill. App. 3d at 761.
In City of Springfield v. Allphin, 74 Ill. 2d 117 (1978), the municipal plaintiffs sued the State
on the ground that the act that allowed the State to withhold as a collection fee 4% of municipal taxes
before distributing them to municipalities had been amended and the collection amount reduced to
2%, yet the State wrongfully withheld 4% after the effective date of the amendment. The supreme
court agreed, and it remanded the cause for the trial court to fashion injunctive relief "to reduce the
amount of such taxes withheld by the State until the earlier overwithholding is compensated for."
Allphin, 74 Ill. 2d at 131. (The court did not order interest payments due to issues with sovereign
immunity. See City of Springfield v. Allphin, 82 Ill. 2d 571, 579-81 (1980).)
The above cases appear to contemplate, as I do, that a municipality may be harmed by lost
revenue, even if it could not have converted that revenue to profit. I would apply that reasoning to
this case and hold that plaintiff has alleged damages in that it lost revenue as a result of defendant's
negligence.
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