Dewitt v. McHenry County

691 N.E.2d 388, 294 Ill. App. 3d 712, 229 Ill. Dec. 278, 1998 Ill. App. LEXIS 7
CourtAppellate Court of Illinois
DecidedJanuary 13, 1998
Docket2-97-0044
StatusPublished
Cited by12 cases

This text of 691 N.E.2d 388 (Dewitt v. McHenry County) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dewitt v. McHenry County, 691 N.E.2d 388, 294 Ill. App. 3d 712, 229 Ill. Dec. 278, 1998 Ill. App. LEXIS 7 (Ill. Ct. App. 1998).

Opinion

JUSTICE RATHJE

delivered the opinion of the court:

Plaintiff, Ken Dewitt, appeals the judgment of the circuit court of McHenry County dismissing his complaint against defendant, McHenry County, for breach of an employment contract. Plaintiff contends that the court erred in holding that his cause of action was barred by the one-year statute of limitations in the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1 — 101 et sea. (West 1994)).

Plaintiff’s complaint alleges that defendant hired him as a data processing manager in February 1989. By December 8, 1993, he held the position of senior systems manager. Plaintiff alleges that he was given a copy of the “McHenry County Government Personnel Policy Handbook.” The handbook stated that defendant would not discharge plaintiff without good cause and listed various acts that constituted cause for disciplinary action or termination. The handbook also provided for a pretermination hearing. Plaintiff never committed any of the acts proscribed by the handbook, and no one ever told him that his performance was unsatisfactory. Nevertheless, on December 8, 1993, defendant terminated plaintiff’s employment without providing him with a pretermination hearing.

Counts I and II of the complaint allege breach of contract. Count III alleges retaliatory discharge. Count IV is titled “Denial of Constitutional Right to Counsel.”

Defendant removed the case to the federal district court, which remanded it to the state court. Defendant filed a combined motion to dismiss the complaint pursuant to sections 2 — 615 and 2 — 619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2 — 615, 2 — 619(a)(5) (West 1994)).

The section 2 — 615 portion of the motion argued in pertinent part that the complaint did not adequately allege various elements of a breach-of-contract cause of action, including offer, acceptance, and consideration. Defendant further contended that the copy of the handbook attached to the complaint contained an explicit disclaimer of any intention to create an enforceable contract. The section 2 — 619 portion of the motion contended that all of plaintiff’s causes of action were barred by the one-year limitations period provided in the Act. See 745 ILCS 10/8 — 101 (West 1994). In response, plaintiff argued that the copy of the handbook attached to the complaint was not the one he actually received, but a later revision, and that the one-year limitations period did not apply to his contract counts.

At the hearing on the motion, the parties first argued the issues of the complaint’s factual sufficiency. The trial court demonstrated a willingness to dismiss the complaint on that basis, but also to allow plaintiff leave to amend. The parties then asked to address the limitations issue. The court ruled that section 8 — 101 barred all of plaintiff’s causes of action. The court’s order states the court’s finding that plaintiff’s complaint is time-barred and grants plaintiff 28 days to file an amended complaint.

Plaintiff then filed a notice of his intention to stand on his complaint. The trial court dismissed the complaint with prejudice, and plaintiff filed a timely notice of appeal.

Plaintiff contends that the trial court erred in dismissing his breach-of-contract counts on the basis of the one-year limitations period in section 8 — 101. He argues that the Act relates only to tort liability and expressly disclaims any intention to affect liability based on contract. Instead, plaintiff contends, the court should have applied either the 5-year limitations period governing actions for breach of oral contracts (735 ILCS 5/13 — 205 (West 1994)) or the 10-year period governing actions on written contracts (735 ILCS 5/13 — 206 (West 1994)).

Defendant responds that the plain language of section 8 — 101 applies to any civil action “for any injury” and broadly defines “civil action” as “any action, whether based upon the common law or statutes or Constitution of this State.” 745 ILCS 10/8 — 101 (West 1994). Because an “injury” may include an injury to a property right, such as a contractual right to employment, defendant argues that that section bars plaintiff’s cause of action.

The primary purpose of a section 2 — 619 motion is to dispose of issues of law or easily proved issues of fact. A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill. App. 3d 905, 912-13 (1993). We review de nova the granting of a motion to dismiss. M.E.H. v. L.H., 283 Ill. App. 3d 241, 246 (1996), affd, 177 Ill. 2d 207 (1997).

Previous cases have held that the five-year limitations period applies to an action against a governmental entity for the breach of an unwritten employment contract. Burris v. School Board District No. 189, 70 Ill. App. 3d 572, 577 (1979); Wilson v. Board of Education of Limestone-Walters School District No. 316, 127 Ill. App. 3d 433, 436 (1984). Because it does not appear that the applicability of section 8 — 101 was specifically raised, those cases have limited precedential value in this case except to demonstrate the novelty of defendant’s theory. In fact, our research has failed to uncover any case that has squarely faced this issue.

Plaintiff points out that the Act does not affect contract liability. Specifically, section 2 — 101 states:

“Nothing in this Act affects the liability, if any, of a local public entity or public employee, based on:
*** Contract.” 745 ILCS 10/2 — 101(a) (West 1994).

At first blush, this might appear to dispose of the matter. However, defendant argues that it does not. Section 2 — 101 refers only to “liability.” According to defendant, a limitations period such as that found in section 8 — 101 does not affect liability, but merely shortens the time during which that liability can be asserted. Thus, if a plaintiff alleges that a county has breached a contract more than one year after the cause of action accrued, the county remains liable thereon, but the plaintiff is no longer able to obtain relief.

Defendant’s argument appears strained. Liability can be “affected” in a number of ways. Shortening its lifespan is one way of affecting liability. In other words, it can be said that once a cause of action is time-barred the potential defendant is no longer “liable” thereon.

Defendant also contends, however, that the legislature’s intention to include contract claims can be gleaned from the plain language of section 8 — 101, which provides that “no civil action” may be commenced against a local entity “for any injury” unless commenced within one year from the date the injury was received. 745 ILCS 10/ 8 — 101 (West 1994). In turn, the Act defines “injury” as “death, injury to a person, or damage to or loss of property.”

Related

Hood v. Illinois High School Ass'n
835 N.E.2d 938 (Appellate Court of Illinois, 2005)
Raintree Homes, Inc. v. Village of Long Grove
780 N.E.2d 773 (Appellate Court of Illinois, 2002)
Chicago Limousine Service, Inc. v. City of Chicago
781 N.E.2d 421 (Appellate Court of Illinois, 2002)
Padilla v. County of Cook
100 F. Supp. 2d 1145 (N.D. Illinois, 2000)
Michigan Avenue National Bank v. County of Cook
732 N.E.2d 528 (Illinois Supreme Court, 2000)
Michigan Avenue National Bank v. County of Cook
714 N.E.2d 1010 (Appellate Court of Illinois, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
691 N.E.2d 388, 294 Ill. App. 3d 712, 229 Ill. Dec. 278, 1998 Ill. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dewitt-v-mchenry-county-illappct-1998.