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No. 2--03--0174

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
 

Plaintiff, the Village of South Elgin, appeals an order of the circuit court of Kane Countygranting motions to dismiss brought by defendant, Waste Management of Illinois, Inc., pursuant tosections 2--615 and 2--619 of the Civil Practice Law (735 ILCS 5/2--615, 2--619 (West 2002)). Thetrial court dismissed plaintiff's complaint with prejudice. Although plaintiff named a number ofadditional parties as defendants, this appeal involves only Waste Management of Illinois, Inc. Weagree with the trial court's decision to grant defendant's motions to dismiss. However, we hold thatplaintiff should have been allowed to amend a portion of its complaint. Accordingly, we affirm theorder of the circuit court dismissing plaintiff's complaint, but we reverse that portion of the orderdismissing the complaint with prejudice and remand for further proceedings.

I. BACKGROUND

The following facts are taken from plaintiff's complaint as well as various documentssubmitted by the parties. In ruling on a section 2--615 motion to dismiss, we must accept all well-pleaded facts as true. Krueger v. Lewis, 342 Ill. App. 3d 467, 470 (2003). Similarly, a motion todismiss pursuant to section 2--619 admits all well-pleaded facts and the reasonable inferences capableof being drawn therefrom. People ex rel. Department of Public Aid v. Smith, 343 Ill. App. 3d 208,213 (2003). The record must be construed in the light most favorable to the nonmovant. Nolan v.Hillard, 309 Ill. App. 3d 129, 138 (1999). However, conclusions of law and conclusory factualallegations not supported by allegations of specific facts are not deemed admitted. Lawson v. Cityof Chicago, 278 Ill. App. 3d 628, 634 (1996). Moreover, it is well established that courts are toconstrue pleadings liberally with a view toward doing substantial justice between the parties. Colev. Guy, 183 Ill. App. 3d 768, 773 (1989).

In 1976, a facility known as the Woodland Landfill opened on plaintiff's eastern border, inwhat was formerly a gravel quarry. Defendant is the operator of the facility. The landfill is locatedon a 213-acre site that is owned by defendant. In 1982, it was determined that the facility couldsustain operations for only 36 more months. Defendant sought and received a permit from KaneCounty that allowed the site to continue to operate. In 1988, defendant sought another permit thatwould allow the landfill to operate for an additional 15 years.

Plaintiff was initially opposed to the proposal to extend the life of the landfill for 15 years. Defendant's representatives met with plaintiff's mayor and village engineer to address plaintiff'sobjections to the extension. These discussions are referenced in the minutes from meetings ofplaintiff's village board. Plaintiff alleges that these discussions resulted in an agreement wherebydefendant agreed to certain conditions and plaintiff agreed not to oppose the project in hearingsbefore the Kane County Board. Plaintiff further alleges that a letter from defendant to plaintiff'smayor that is dated July 8, 1988, memorialized the agreement. The letter begins, "WasteManagement of Illinois, Inc., will agree to the following conditions with the Village of South Elgin,Illinois, and the County of Kane upon successful siting of our application which is before the KaneCounty Board *** and the issuance of an operating permit by the Illinois Environmental ProtectionAgency for this landfill expansion." The first condition set forth in the letter involves the financialresponsibilities of plaintiff and defendant should any wells become contaminated. Defendant was tobe responsible if the landfill caused the contaminations. If, however, it was shown that thecontamination was caused by some other source, plaintiff was to reimburse defendant for anyexpenses defendant incurred. The letter also states that "Waste Management of Illinois, Inc., agreesand stipulates that this expansion will be the last expansion that we will attempt to do on this sitewhich is commonly known as the Woodland Landfill site." Finally, it delineated defendant'sobligations to monitor groundwater for contamination and to allow plaintiff to inspect the landfill.

Additionally, the application submitted by defendant for the 1988 extension contained certainrepresentations. Among them, defendant set forth the number of trucks that would use the facilityeach day and their hours of operation. The application also contained an end-use plan that envisionedthe area being used as a recreational area for activities such as bicycle riding, hiking, and sledding.

Plaintiff alleges that, pursuant to the terms of its agreement with defendant, it did not file withthe Kane County Board any formal objection to the 15-year extension. During a public hearing onJuly 26, 1988, the letter of July 8 was read into the record. On September 13, 1998, the Kane CountyBoard enacted a resolution granting approval for the 15-year extension. The Board imposed severalconditions upon the grant. First, the resolution states that "the site will be developed and operatedin a manner consistent with the representations made at the public hearing in this matter held on July26, 1988." It also incorporated plaintiff's and defendant's financial responsibilities regarding potentialcontamination and defendant's obligations to monitor groundwater. Further, the resolution expresslyincorporated defendant's letter of July 8. Another condition set forth in the resolution was that "[t]hesite, commonly known as the Woodland site, shall not be expanded further."

On June 14, 2002, defendant filed an application with Kane County to operate a transferstation on the Woodland site. A transfer station is a "site or facility that accepts waste for temporarystorage or consolidation and further transfer to a waste disposal, treatment or storage facility" (415ILCS 5/3.500 (West 2002)). The proposed installation would occupy about 9 acres of the 120-acrearea that the landfill occupies. It would service 406 trucks per day, which is well over twice thenumber using the landfill.

Plaintiff instituted the present action in response to defendant's attempt to secure approval forthe transfer station. The sole count of its complaint is titled "Breach of Contract and Request forSpecific Performance." Plaintiff conflates two distinct theories in this count. The first paragraph ofthe count alleges that the "conditions imposed by Kane County" constitute covenants that run withthe land, while the third paragraph alleges that defendant's conduct amounts to "breaches of thecovenants agreed to" by defendant. (Emphasis added.) These are discrete theories. The firstallegation suggests a violation of the 1988 Kane County resolution authorizing the 15-year extension. The second intimates a breach of an agreement between plaintiff and defendant. Construing thecomplaint liberally, as we must (see Cole, 183 Ill. App. 3d at 773), we will address both theories. Our doing so does not prejudice defendant, for a review of defendant's brief filed in this court, as wellas its motions to dismiss filed below, indicates that defendant is, and has long been, aware of boththeories. Cf. Ruklick v. Julius Schmid, Inc., 169 Ill. App. 3d 1098, 1113 (1988) ("Here, the proposedamendment would apparently cure the pleading defect; it would certainly not prejudice or surprisedefendants, who have been aware at least since the voluntarily dismissed complaint of the gravamenof plaintiffs' cause of action"); Pinelli v. Alpine Development Corp., 70 Ill. App. 3d 980, 1003 (1979)(finding no prejudice where, "[a]lthough the relief granted was not precisely what was requested,defendants cannot argue that they did not know plaintiffs were seeking a return of their property");County of DuPage v. Kussel, 12 Ill. App. 3d 272, 278 (1973) ("If the trial clearly proceeded on anegligence theory and if the counterdefendant would not be prejudiced by applying res ipsa loquitur,this court could on its own motion amend the pleadings to comply with the proofs").

Indeed, defendant filed two separate motions to dismiss. The motion filed pursuant to section2--619 of the Civil Practice Law (735 ILCS 5/2--619 (West 2002)) was based on, inter alia, plaintiff's"failure to exhaust its administrative remedies." This allegation is clearly responsive to plaintiff's claimthat defendant violated the conditions imposed by Kane County in its resolution. Defendant's section2--615 motion (735 ILCS 5/2--615 (West 2002)) asserted, in part, that plaintiff's complaint did notcontain allegations showing an offer or valid consideration. This motion focused upon plaintiff'scontract theory. The trial court accepted both of defendant's arguments; consequently, it grantedboth of defendant's motions. We largely agree with the trial court. However, as we will explainbelow, plaintiff must be given an opportunity to replead its contract theory.

II. ANALYSIS

This appeal presents two main issues. First, we must consider whether the doctrine ofexhaustion of remedies bars plaintiff from proceeding. If not, we must then consider whether plaintiffhas adequately pleaded a cause of action. We review de novo the decision of a trial court to dismissa complaint under both sections 2--615 and 2--619 of the Civil Practice Law (735 ILCS 5/2--615,2--619 (West 2002)). Canel v. Topinka, 342 Ill. App. 3d 65, 69 (2003).

A. Exhaustion of Administrative Remedies

Before turning to the substance of this issue, we must address defendant's contention thatplaintiff has waived, for the purpose of this appeal, its ability to argue that it was not required toexhaust remedies. As defendant points out, points not argued before the trial court generally may notbe raised for the first time on appeal. See Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 429(2002). However, contrary to defendant's contention, plaintiff did, albeit briefly, address the issue. Plaintiff argued that exhaustion did not apply to its theory concerning a contractual obligation andthen went on to explain why it believed a contract existed. While more extensive briefing likelywould have been helpful to the trial court, plaintiff sufficiently contested defendant's assertion thatexhaustion was required to put the trial court on notice of the issue, and the court did consider it, asit was one of the primary arguments asserted in defendant's section 2--619 motion. See Poplar GroveState Bank v. Powers, 218 Ill. App. 3d 509, 515 (1991) ("We note that plaintiff did not raise thewaiver issue below and did not argue waiver in its motion for rehearing. Nonetheless, because thetrial judge considered the issue after raising it sua sponte, we will also address the argument despiteplaintiff's failure to pursue the matter more vigorously").

Moreover, the waiver rule is not jurisdictional; it is a prerogative of this court. Dillon v.Evanston Hospital, 199 Ill. 2d 483, 504-05 (2002). In Daniels v. Anderson, 252 Ill. App. 3d 289, 299(1993), the court noted that "[o]ne of the purposes of the waiver rule--to allow the adversativeprocess an opportunity to fully develop an issue below--would be particularly frustrated here becauseDaniels has been denied a full opportunity to contest application of the doctrine." Exhaustion is anaffirmative defense (see Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 254 (2003); Miltonv. Illinois Bell Telephone Co., 101 Ill. App. 3d 75, 82 (1981)), and, of course, the party asserting adefense bears the burden of establishing it (Glisson v. City of Marion, 188 Ill. 2d 211, 224 (1999)). Having raised the issue, defendant was surely aware of it and should have been aware of its obligationto establish the premises of its argument. Defendant does not explain what it would have donedifferently in the action below had plaintiff argued the issue more vigorously. Accordingly, we woulddecline to apply the waiver rule under these circumstances even if we were to deem inadequateplaintiff's response to the argument in the trial court.

Turning to the merits of the exhaustion issue, we conclude that, to the extent that plaintiff'scomplaint is based upon defendant's alleged violation of the Kane County resolution, it is subject tothe requirement that plaintiff exhaust administrative remedies. However, plaintiff's contract theoryis not. The doctrine of exhaustion of remedies helps establish a proper relationship between the courtsystem and administrative bodies. People's Energy Corp. v. Illinois Commerce Comm'n, 142 Ill. App.3d 917, 931 (1986). Generally, a party aggrieved by an administrative action must first pursue allavailable administrative remedies before resorting to the courts. Rockford Memorial Hospital v.Department of Human Rights, 272 Ill. App. 3d 751, 757 (1995). The purpose of the doctrine is toallow administrative bodies to develop a factual record and to permit them to apply the specialexpertise that they possess. Illinois Bell Telephone Co. v. Allphin, 60 Ill. 2d 350, 359 (1975). Exhaustion also minimizes interruption of the administrative process. Dilley v. Americana HealthcareCorp., 129 Ill. App. 3d 537, 543 (1984). Moreover, the aggrieved party might succeed before theadministrative body, obviating the need for judicial involvement, thereby conserving judicialresources. Allphin, 60 Ill. 2d at 358.

The doctrine applies only when an agency has exclusive jurisdiction over an action. EmeryWorldwide Freight Corp. v. Snell, 288 Ill. App. 3d 808, 810 (1997). If the courts and an agencyenjoy concurrent jurisdiction over a matter, the doctrine of primary jurisdiction applies instead. People v. NL Industries, 152 Ill. 2d 82, 95 (1992). Circuit courts are courts of general jurisdictionand, outside of a few exceptions, have jurisdiction over all justiciable matters. Ill. Const. 1970, art.VI,