                                       2018 IL App (3d) 170625

                               Opinion filed October 23, 2018
     _____________________________________________________________________________

                                                IN THE


                                 APPELLATE COURT OF ILLINOIS


                                          THIRD DISTRICT


                                                 2018 


     LARRY DAWSON,                         )    Appeal from the Circuit Court
                                           )    of the 14th Judicial Circuit,
           Plaintiff-Appellant,            )    Henry County, Illinois.
                                           )
           v. 	                            )    Appeal No. 3-17-0625
                                           )    Circuit No. 16-L-24
                                           )
     CITY OF GENESEO,	                     )    The Honorable

                                           )    Jeffrey W. O’Connor,

           Defendant-Appellee.             )    Judge, presiding.

     ____________________________________________________________________________

           PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
           Justices McDade and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                              OPINION

¶1          Plaintiff, Larry Dawson, a retired former employee of defendant, the City of Geneseo

     (City), filed a class action lawsuit against the City to challenge the City’s reduction of the

     percentage it contributed to retiree health insurance premiums. Plaintiff alleged in his first

     amended complaint a violation of the pension protection clause of the Illinois Constitution of

     1970 (Ill. Const. 1970, art. XIII, § 5) (count I) and claims of breach of contract (count II),

     promissory estoppel (count III), and equitable estoppel (count IV). The City filed a combined

     motion, seeking to dismiss count I of the first amended complaint pursuant to section 2-615 of

     the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2016)) and to dismiss counts II,
     III, and IV pursuant to section 2-619 of the Code (id. § 2-619). Plaintiff opposed the motion to

     dismiss. After a hearing, the trial court granted the City’s motion and dismissed plaintiff’s first

     amended complaint with prejudice. Plaintiff appeals. We affirm the trial court’s judgment.



¶2                                             I. BACKGROUND

¶3          Plaintiff previously worked for the City and subsequently retired. At the time of his

     retirement, the City’s Personnel Ordinance allowed employees who retired with 10 or more years

     of service to continue to participate in the City’s group health insurance program on a shared-

     cost basis with the City. The fixed percentage of the cost that the City would pay/contribute to a

     retiree’s health insurance premium was specified in the ordinance and varied depending upon the

     employee’s years of service. In November 2011, however, the City amended its Personnel

     Ordinance due to rising healthcare costs, reduced the contribution percentage, and capped the

     amount that it would contribute to an existing retiree’s health insurance premium. The

     amendment went into effect in January 2012.

¶4          In December 2016, plaintiff, on behalf of himself and a proposed class of retired City

     employees, filed the instant class action lawsuit against the City regarding the reduction of the

     health insurance contribution. 1 The complaint was later amended. In count I of the first amended

     complaint, plaintiff alleged that the health insurance contribution was a retirement or pension

     benefit that was protected under the pension protection clause of the Illinois Constitution and that

     the City violated that clause by diminishing or impairing that benefit. In count II, plaintiff

     alleged that the Personnel Ordinance constituted a valid and enforceable contract between the

     City and the retirees and that the City breached that contract by reducing the health insurance

            1
             As of this time, the proposed class specified in plaintiff’s complaint has not been certified.


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     contribution. In count III, plaintiff sought relief under a theory of promissory estoppel, alleging

     that the contribution percentage specified in the pre-amended version of the Personnel Ordinance

     was an unambiguous promise by the City and that the retirees had relied upon that promise to

     their detriment. Finally, in count IV of the first amended complaint, plaintiff alleged that the

     Personnel Ordinance and the City’s course of conduct had created a contract between the City

     and the retirees, from which the City received a benefit, and that the City should be equitably

     estopped from refusing to pay the prior contribution amount. Plaintiff sought money damages

     and to restore the City’s contribution percentage to its prior level for retirees. Copies of the

     health insurance provisions from the pre-amendment and post-amendment versions of the

     Personnel Ordinance were attached to plaintiff’s first amended complaint as supporting

     documents.

¶5          In June 2017, the City filed a combined motion to dismiss plaintiff’s first amended

     complaint. In the combined motion, the City sought to dismiss count I of the first amended

     complaint pursuant to section 2-615 of the Code because count I allegedly failed to state a cause

     of action for violation of the pension protection clause. The City also sought to dismiss counts II,

     III, and IV of the first amended complaint pursuant to section 2-619 of the Code because the

     counts were allegedly barred by a disclaimer clause in the Personnel Ordinance that precluded

     the formation of a contract between the City and the retirees. The City attached to its combined

     motion to dismiss a full copy of the Personnel Ordinance. Of relevance to this appeal, the first

     page of the Personnel Ordinance indicated that the ordinance had been enacted in 1995 and had

     been amended several times over the years. Also of relevance to this appeal, section 1.01 of the

     ordinance, titled “Personnel Ordinance Declaration,” (emphasis omitted) provided:




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                               “Terms, conditions and policies set forth in this ordinance are not intended

                    to create a contract, nor are they to be construed to constitute contractual

                    obligations of any kind or a contract of employment between the City and any of

                    its employees for a specified period of time. Contents of the Personnel Ordinance

                    are for informational purposes only.

                               This ordinance has been developed at the discretion of the Council and

                    may be amended or cancelled at anytime, at the City’s sole discretion upon the

                    advice and recommendation of the City Boards.”

     Plaintiff filed a response and opposed the City’s combined motion to dismiss, and the City filed a

     reply to that response.

¶6          In August 2017, a hearing was held on the City’s combined motion to dismiss. After

     listening to the arguments of the attorneys, the trial court granted the City’s combined motion,

     dismissed count I of the first amended complaint with prejudice pursuant to section 2-615 of the

     Code, and dismissed counts II, III, and IV of the first amended complaint with prejudice pursuant

     to section 2-619 of the Code. Plaintiff appealed.



¶7                                               II. ANALYSIS

¶8           A. The Trial Court’s Grant of the City’s Section 2-615 Motion to Dismiss Count I

¶9          As his first point of contention on appeal, plaintiff argues that the trial court erred in

     granting the City’s section 2-615 motion to dismiss count I (the violation of the pension

     protection clause claim) of plaintiff’s first amended complaint. Plaintiff asserts that the motion to

     dismiss should have been denied because (1) the benefit at issue in this case—a health insurance

     contribution provided to employees and retirees by the City, a unit of local government—is

                                                         4

       protected under the pension protection clause, (2) as a protected benefit, the health insurance

       contribution cannot be diminished or impaired by the City, and (3) the City’s unilateral action of

       modifying the Personnel Ordinance, which had the direct effect of diminishing and impairing

       plaintiff’s health insurance benefits, violated the pension protection clause. Thus, plaintiff

       contends, although somewhat implicitly, that count I of his complaint was sufficient to state a

       claim for violation of the pension protection clause. In making that contention, plaintiff

       maintains that the coverage of the pension protection clause is not limited solely to the State’s

       public pension or retirement systems, as the City claims, but applies to benefits provided by a

       unit of local government, such as the City in the present case, as the plain language of the

       pension protection clause clearly indicates. For those reasons, plaintiff asks that we reverse the

       trial court’s grant of the City’s section 2-615 motion to dismiss count I of plaintiff’s first

       amended complaint and, presumably, that we remand this case for further proceedings.

¶ 10          The City argues that the trial court’s ruling was proper and should be upheld. In support

       of that argument, the City asserts that (1) the pension protection clause applies only to benefits

       derived from membership in one of the State’s public pension or retirement systems (those

       governed by the Illinois Pension Code (40 ILCS 5/1-101 et seq. (West 2016)), (2) the health

       insurance contribution provided by the City in this case was not such a benefit but, rather, was

       merely an employment policy of the City, (3) in addition, the health insurance contribution was

       not a pension or retirement system in and of itself, (4) the pension protection clause, therefore,

       did not apply to the health insurance contribution in the present case, and (5) the City’s change in

       its employment policy, which reduced the health insurance contribution, did not violate the

       pension protection clause. Thus, the City contends that the trial court correctly found that count I

       of plaintiff’s first amended complaint failed to state a cause of action for violation of the pension


                                                        5

       protection clause and correctly granted the City’s section 2-615 motion to dismiss count I on that

       basis. For that reason, the City asks that we affirm the trial court’s grant of the City’s section 2­

       615 motion to dismiss count I of plaintiff’s first amended complaint.

¶ 11          A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based

       upon defects that are apparent on the face of the complaint. See 735 ILCS 5/2-615 (West 2016);

       Heastie v. Roberts, 226 Ill. 2d 515, 531 (2007). In ruling upon a section 2-615 motion, a court

       must accept as true all well-pleaded facts and all reasonable inferences that may be drawn from

       those facts. Heastie, 226 Ill. 2d at 531. The crucial inquiry in ruling upon a section 2-615 motion

       to dismiss is whether the allegations of the complaint, when considered in a light most favorable

       to the plaintiff, are sufficient to state a cause of action upon which relief can be granted. Board of

       Directors of Bloomfield Club Recreation Ass’n v. The Hoffman Group, Inc., 186 Ill. 2d 419, 424

       (1999). A cause of action should not be dismissed pursuant to section 2-615 unless it is clearly

       apparent that the plaintiff cannot prove any set of facts that will entitle the plaintiff to recovery.

       Heastie, 226 Ill. 2d at 531. In reviewing a trial court’s ruling on a section 2-615 motion to

       dismiss, the appellate court applies a de novo standard of review. Id. at 530-31. When de novo

       review applies, the appellate court performs the same analysis that the trial court would perform.

       Direct Auto Insurance Co. v. Beltran, 2013 IL App (1st) 121128, ¶ 43. The appellate court may

       affirm a trial court’s grant of a section 2-615 motion to dismiss on any basis supported by the

       record. Fidelity National Title Insurance Co. of New York v. Westhaven Properties Partnership,

       386 Ill. App. 3d 201, 220 (2007).

¶ 12          The pension protection clause of the Illinois Constitution provides that “[m]embership in

       any pension or retirement system of the State, any unit of local government or school district, or

       any agency or instrumentality thereof, shall be an enforceable contractual relationship, the


                                                         6

       benefits of which shall not be diminished or impaired.” Ill. Const. 1970, art. XIII, § 5. Thus,

       members of a pension or retirement plan that is subject to the pension protection clause’s

       provisions have a legally enforceable right to receive the benefits that they have been promised.

       In re Pension Reform Litigation, 2015 IL 118585, ¶ 46. In interpreting the pension protection

       clause, our supreme court has stated that the clause means precisely what it says—if something

       qualifies as a benefit of the enforceable contractual relationship resulting from membership in

       one of the State’s pension or retirement systems, it cannot be diminished or impaired. Id. ¶ 45

       (discussing the application of the pension protection clause in a case involving a challenge to the

       constitutionality of an amendment to the Illinois Pension Code); Kanerva v. Weems, 2014 IL

       115811, ¶ 38 (discussing the application of the pension protection clause in a case involving a

       challenge to a public act eliminating the statutory standards for the State’s contributions to health

       insurance premiums for members of the State’s retirement systems). The protections afforded to

       such benefits by the pension protection clause attach once an individual first starts employment

       in a position covered by a public pension or retirement system, not when the employee ultimately

       retires. Pension Reform Litigation, 2015 IL 118585, ¶ 46. Therefore, once a person begins work

       and becomes a member of a public pension or retirement system, any subsequent changes to the

       Illinois Pension Code that would diminish or impair the benefits conferred by membership in the

       pension or retirement system cannot be applied to that person. Id.

¶ 13          In the present case, after having reviewed the record, we find that the benefit plaintiff

       seeks to enforce, a contribution by the City to health insurance premiums for employees and

       retirees, is not a pension or retirement system in and of itself, as plaintiff seems to imply. Nor is

       it a benefit that results from membership in one of the protected public pension or retirement

       systems—those provided for under the Illinois Pension Code—some of which are established


                                                        7

       and administered by participating municipalities. 2 See Kanerva, 2014 IL 115811, ¶ 36. We must

       conclude, therefore, that the City’s health insurance contribution is not a benefit that is protected

       by the pension protection clause from being diminished or impaired by the City. See Ill. Const.

       1970, art. XIII, § 5; Pension Reform Litigation, 2015 IL 118585, ¶ 45; Kanerva, 2014 IL 115811,

       ¶ 38. Rather, as the City maintains, the health insurance contribution was merely part of the

       City’s employment policy and was offered to all employees and to retirees with 10 or more years

       of service, regardless of the employee’s or retiree’s membership in a public pension or retirement

       system. See Pisani v. City of Springfield, 2017 IL App (4th) 160417, ¶¶ 25-32 (finding that the

       city’s elimination of a vacation buyback provision, which was an employment policy contained

       in an ordinance, did not violate the pension protection clause). Thus, the City was free to change

       its employment policy and to reduce or change the health insurance contribution without running

       afoul of the pension protection clause. Because plaintiff did not and could not plead facts

       sufficient to establish a pension protection clause violation, the trial court properly granted the

       City’s section 2-615 motion to dismiss count I of plaintiff’s first amended complaint. See

       Heastie, 226 Ill. 2d at 531; Board of Directors of Bloomfield Club Recreation Ass’n, 186 Ill. 2d

       at 424.



¶ 14    B. The Trial Court’s Grant of the City’s Section 2-619 Motion to Dismiss Counts II, III, and IV

¶ 15             As his second point of contention on appeal, plaintiff argues that the trial court erred in

       granting the City’s section 2-619(a)(9) motion to dismiss counts II, III, and IV (the breach of
                 2
                  Some of the pension or retirement systems provided for under the Illinois Pension Code include
       the General Assembly Retirement System (40 ILCS 5/2-101 et seq. (West 2016)), the Police Pension
       Fund (id. § 3-101 et seq.), the Firefighters’ Pension Fund (id. § 4-101 et seq.), the Illinois Municipal
       Retirement Fund (id. § 7-101 et seq.), the State Employees’ Retirement System of Illinois (id. § 14-101
       et seq.), the State Universities Retirement System (id. § 15-101 et seq.), the Teachers’ Retirement System
       of the State of Illinois (id. § 16-101 et seq.), and the Judges Retirement System of Illinois (id. § 18-101
       et seq.).
                                                            8

       contract, promissory estoppel, and equitable estoppel claims) of plaintiff’s first amended

       complaint. Plaintiff asserts that the trial court did not have sufficient information before it to

       grant the City’s section 2-619 motion to dismiss because the first page of the Personnel

       Ordinance that the City tendered indicated that the ordinance had been amended several times

       over the years but did not indicate whether the disclaimer upon which the City relies was present

       in the applicable prior version of the ordinance. Rather, plaintiff contends, a more thorough

       review of the history of the ordinance should be undertaken through the discovery process to

       determine if the disclaimer was present in the applicable prior version. Plaintiff asks, therefore,

       that we reverse the trial court’s grant of the City’s section 2-619 motion to dismiss counts II, III,

       and IV of plaintiff’s first amended complaint and that we remand this case with directions for

       further proceedings.

¶ 16          The City argues that the trial court’s ruling was proper and should be upheld. The City

       asserts that the disclaimer contained in the Personnel Ordinance is a clear and unambiguous

       statement by the City that the Personnel Ordinance does not create any contractual rights or

       constitute a binding unchangeable promise by the City. In fact, the City maintains, the intent of

       the disclaimer was to prevent any employee from relying upon the terms of the ordinance.

       Finally, and more directly to plaintiff’s specific contention, the City asserts that the time for

       plaintiff to investigate the history of the ordinance was prior to filing this lawsuit. The City notes

       that plaintiff has not alleged in his first amended complaint that a different version of the

       Personnel Ordinance applies or that the applicable version of the Personnel Ordinance lacks the

       disclaimer. For all of the reasons stated, the City asks that we affirm the trial court’s grant of the

       City’s section 2-619 motion to dismiss counts II, III, and IV of plaintiff’s first amended

       complaint.


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¶ 17          Section 2-619 of the Code allows a litigant to obtain an involuntary dismissal of an action

       or claim based upon certain defects or defenses. See 735 ILCS 5/2-619 (West 2016); Van Meter

       v. Darien Park District, 207 Ill. 2d 359, 367 (2003). The statute’s purpose is to provide litigants

       with a method for disposing of issues of law and easily proven issues of fact early in a case, often

       before discovery has been conducted. See Van Meter, 207 Ill. 2d at 367; Advocate Health &

       Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759 (2004). In a section 2-619

       proceeding, the moving party admits the legal sufficiency of the complaint but asserts an

       affirmative defense or other matter to defeat the nonmoving party’s claim. Van Meter, 207 Ill. 2d

       at 367. Section 2-619 lists several different grounds for which an involuntary dismissal may be

       granted. See 735 ILCS 5/2-619(a)(1) to (a)(9) (West 2016). Under subsection (a)(9), the

       subsection that applies in this case, a litigant may obtain an involuntary dismissal of a claim

       asserted against him if the claim is barred by other affirmative matter, which avoids the legal

       effect of or defeats the claim. Id. § 2-619(a)(9). An “affirmative matter” is something in the

       nature of a defense that negates the cause of action completely. Van Meter, 207 Ill. 2d at 367. In

       ruling upon a section 2-619 motion to dismiss, the court must construe all of the pleadings and

       supporting documents in the light most favorable to the nonmoving party. Id. at 367-68. On

       appeal, a dismissal pursuant to section 2-619 is reviewed de novo. Id. at 368. As noted above,

       when de novo review applies, the appellate court performs the same analysis that the trial court

       would perform. Beltran, 2013 IL App (1st) 121128, ¶ 43. A trial court’s grant of a section 2-619

       motion to dismiss a complaint may be affirmed on any basis supported by the record. Board of

       Trustees of Community College, District No. 508 v. Coopers & Lybrand LLP, 296 Ill. App. 3d

       538, 543 (1998).




                                                       10 

¶ 18          In resolving the employment-related section 2-619 issue in the present case, we are

       mindful of the following principles of employment law. It is well established under Illinois law

       that an employee hired for an indefinite period of time may be terminated at will. See Duldulao

       v. Saint Mary of Nazareth Hospital Center, 115 Ill. 2d 482, 489 (1987). The presumption of at-

       will employment, however, may be overcome by demonstrating that the parties contracted

       otherwise. Id. For example, an employee handbook may create contract rights that may be

       enforced by an employee if the following three traditional contract elements are present: (1) the

       language of the handbook contains a promise clear enough that the employee would reasonably

       believe that an offer has been made, (2) the handbook is disseminated to the employee so that the

       employee is aware of its contents and reasonably believes the promise contained therein to be an

       offer, and (3) the employee starts working for the employer or continues to do so, thereby

       accepting the offer and providing consideration through his or her continued employment. See

       id. at 490; Ivory v. Specialized Assistance Services, Inc., 365 Ill. App. 3d 544, 546 (2006). An

       employer who chooses to set forth policies in an employee handbook as an inducement to attract

       and retain a skilled and loyal workforce cannot later disregard those obligations simply because

       they now seem inconvenient or burdensome. See Doyle v. Holy Cross Hospital, 186 Ill. 2d 104,

       116 (1999). Nevertheless, an employer may negate the promises contained in an employee

       handbook through the use of a disclaimer. See Duldulao, 115 Ill. 2d at 491; Ivory, 365 Ill. App.

       3d at 546. Thus, when an employee handbook contains a disclaimer indicating that the handbook

       promises nothing and does not act as a contract, no enforceable contract rights will be created in

       favor of the employee. Ivory, 365 Ill. App. 3d at 546. Rather, under those circumstances, it

       would not be reasonable for the employee to interpret the promises made in the handbook as an

       offer or to rely upon those promises. See id.



                                                       11 

¶ 19          In the instant case, when we consider the legal principles set forth above along with the

       record presented, we find that the trial court correctly granted the City’s section 2-619 motion to

       dismiss. As the City rightly notes, the disclaimer contained in the City’s Personnel Ordinance

       clearly stated that the terms, condition, and policies set forth in the ordinance were for

       information purposes only, were not intended to create a contract, and were not to be construed

       as constituting contractual obligations of any kind or a contract of employment between the City

       and any of its employees. Based upon the clear language of the instant disclaimer, plaintiff could

       not reasonably believe that the terms of the Personnel Ordinance constituted an offer. See Ivory,

       365 Ill. App. 3d at 546 (holding that it was not reasonable for the plaintiff-employee to construe

       the terms of the employee manual as an offer when the manual contained a clearly worded

       disclaimer in its introduction, stating that the manual should not be read as “ ‘forming an

       expressed or implied contract or promise’ ”); Hogge v. Champion Laboratories, Inc., 190 Ill.

       App. 3d 620, 629-30 (1989) (finding that the plaintiff-employee could not reasonably believe

       that the terms of the employee handbook constituted an offer when the handbook contained an

       express disclaimer, stating that the handbook was not intended to be all inclusive and should not

       be “construed as an employment contract”). Furthermore, the disclaimer in this case also made it

       clear to plaintiff and the other employees that the City could amend or eliminate the provisions

       of the Personnel Ordinance at any time. Indeed, the City had amended the ordinance numerous

       times since the ordinance was enacted. Under the present circumstances, we must conclude,

       therefore, that count II of plaintiff’s first amended complaint, which alleged a breach of contract,

       was negated by the disclaimer and was properly dismissed by the trial court.

¶ 20          A similar analysis applies to count III of plaintiff’s first amended complaint, which

       alleged promissory estoppel. Based upon the disclaimer that was contained in the Personnel


                                                       12 

       Ordinance, plaintiff could not reasonably rely on any promises made in the ordinance. See Ivory,

       365 Ill. App. 3d at 546; Hogge, 190 Ill. App. 3d at 629-30. Lacking reasonable reliance,

       plaintiff’s promissory estoppel claim was defeated. See Quake Construction, Inc. v. American

       Airlines, Inc., 141 Ill. 2d 281, 309-10 (1990) (noting that to establish a valid claim of promissory

       estoppel, the plaintiff’s reliance must be reasonable and justifiable). Therefore, plaintiff’s claim

       for promissory estoppel was properly dismissed. See id. Finally, count IV of plaintiff’s first

       amended complaint, which alleged a claim of equitable estoppel, was properly dismissed as well

       because the claim was based upon the existence of a contract between plaintiff and the City and

       we have already determined that such a contract did not exist. In concluding that plaintiff’s

       promissory and equitable estoppel claims against the City were properly dismissed, we note that

       such claims are generally not allowed against a municipality, where public revenues are at stake,

       absent some exceptional circumstances. See Chicago Limousine Service, Inc. v. City of Chicago,

       335 Ill. App. 3d 489, 499 (2002) (recognizing in the context of a promissory estoppel claim that

       estoppel against a public body is not favored and is allowed only in rare and unusual

       circumstances when necessary to prevent fraud and injustice); Patrick Engineering, Inc. v. City

       of Naperville, 2012 IL 113148, ¶ 40 (noting in the context of an equitable estoppel claim that

       when public revenues are at stake, estoppel is particularly disfavored). The circumstances of the

       present case are not rare or unusual or indicative of any type of fraud or injustice on behalf of the

       City and do not justify the imposition of estoppel. See Chicago Limousine Service, Inc., 335 Ill.

       App. 3d at 499; Patrick Engineering, Inc., 2012 IL 113148, ¶ 40.

¶ 21          As a final matter, we must take a moment to comment upon plaintiff’s assertion that

       additional information was necessary before dismissal could be granted. As the City correctly

       notes, plaintiff did not allege in his first amended complaint that a different version of the


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       Personnel Ordinance applied or that the applicable version lacked the disclaimer at issue. Thus,

       we cannot agree with plaintiff’s assertion that more information is needed before dismissal could

       be allowed. Plaintiff’s claims in the instant case were negated by the disclaimer, and the trial

       court properly granted the City’s section 2-619 motion to dismiss counts II, III, and IV of

       plaintiff’s first amended complaint on that basis.

¶ 22                                           III. CONCLUSION

¶ 23          For the foregoing reasons, we affirm the judgment of the circuit court of Henry County.

¶ 24          Affirmed.




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