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                                   Appellate Court                       Date: 2017.10.04
                                                                         16:02:53 -05'00'




                  Madison v. City of Chicago, 2017 IL App (1st) 160195



Appellate Court       MARY MADISON, Plaintiff-Appellant, v. THE CITY OF
Caption               CHICAGO, Defendant-Appellee.



District & No.        First District, First Division
                      Docket No. 1-16-0195



Filed                 June 26, 2017



Decision Under        Appeal from the Circuit Court of Cook County, No. 15-L-7725; the
Review                Hon. John P. Callahan, Jr., Judge, presiding.



Judgment              Affirmed in part and reversed in part.


Counsel on            Jordan T. Hoffman, of Chicago, for appellant.
Appeal
                      Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth
                      Solomon, Myriam Zreczny Kasper, and Julian N. Henriques, Jr.,
                      Assistant Corporation Counsel, of counsel), for appellee.



Panel                 JUSTICE MIKVA delivered the judgment of the court, with opinion.
                      Presiding Justice Connors and Justice Simon concurred in the
                      judgment and opinion.
                                             OPINION

¶1       We are asked in this appeal to consider whether the one-year limitations period in the Local
     Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act)
     (745 ILCS 10/1-101 et seq. (West 2010)) bars the plaintiff’s claim for wrongful demolition.
     We hold that it does not and reverse the trial court’s dismissal of that claim on statute of
     limitations grounds. We affirm the dismissal of plaintiff’s other claims.

¶2                                            BACKGROUND
¶3       The complaint in this case alleged that, on July 29, 2010, the City of Chicago (City)
     wrongfully demolished a building in which plaintiff Mary Madison had a beneficial interest.
     Ms. Madison filed her lawsuit against the City five years later, on July 29, 2015, and alleged
     four counts: count I for wrongful demolition under section 1-4-7 of the Illinois Municipal Code
     (65 ILCS 5/1-4-7 West 2010)) and counts II through IV, respectively, for an unlawful taking or
     inverse condemnation, negligence, and conversion.
¶4       The City moved to dismiss Ms. Madison’s complaint, arguing that each of her claims was
     barred by the one-year limitations period in the Tort Immunity Act (745 ILCS 10/8-101(a)
     (West 2010)). Ms. Madison responded that section 2-101(e) of the Act (745 ILCS 10/2-101(e)
     (West 2010)) exempted her demolition claim from the Act’s provisions and that her other
     claims were timely because they were derivative of her wrongful demolition claim. Ms.
     Madison argued that the applicable limitations period was therefore the five-year period set
     forth in section 13-205 of the Code of Civil Procedure (Code) (735 ILCS 5/13-205 (West
     2010)).
¶5       On December 16, 2015, the trial court granted the City’s motion. Ms. Madison timely filed
     her notice of appeal on January 15, 2016. This court has jurisdiction pursuant to Illinois
     Supreme Court Rules 301 and 303, which govern appeals from final judgments entered by the
     circuit court in civil cases. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); 303 (eff. Jan. 1, 2015).

¶6                                          ANALYSIS
¶7      The issue before us is whether to apply the general five-year limitations period “to recover
     damages for an injury done to property *** and all actions not otherwise provided for” (735
     ILCS 5/13-205 (West 2010)) or the one-year limitations period in the Tort Immunity Act (745
     ILCS 10/8-101(a) (West 2010)). Ms. Madison argues that her claim for wrongful demolition is
     exempted from the Act’s statute of limitations by section 2-101(e) of the Act.
¶8      Section 2-101 provides:
           “Nothing in this Act affects the right to obtain relief other than damages against a local
           public entity or public employee. Nothing in this Act affects the liability, if any, of a
           local public entity or public employee, based on:
                   a). Contract;
                   b). Operation as a common carrier; and this Act does not apply to any entity
               organized under or subject to the ‘Metropolitan Transit Authority Act’ [(70 ILCS
               3605/1 et seq. (West 2010))], approved April 12, 1945, as amended;
                   c). The ‘Workers’ Compensation Act’ [(820 ILCS 305/1 et seq. (West 2010))],
               approved July 9, 1951, as heretofore or hereafter amended;

                                                -2-
                        d). The ‘Workers’ Occupational Diseases Act’ [(820 ILCS 310/1 et seq. (West
                    2010))], approved July 9, 1951, as heretofore or hereafter amended;
                        e). Section 1-4-7 of the ‘Illinois Municipal Code’, approved May 29, 1961, as
                    heretofore or hereafter amended.
                        f). The ‘Illinois Uniform Conviction Information Act’ [(20 ILCS 2635/1 et seq.
                    (West 2010))], enacted by the 85th General Assembly, as heretofore or hereafter
                    amended.” 745 ILCS 10/2-101 (West 2010).
¶9         Referenced in subsection (e), section 1-4-7 of the Illinois Municipal Code provides liability
       for injury caused by wrongful demolition. 65 ILCS 5/1-4-7 (West 2010). The trial court here
       rejected Ms. Madison’s argument that, under subsection (e), her claim for wrongful demolition
       was exempt from the shorter limitations period of the Tort Immunity Act. The trial court relied
       on our decision in Hapeniewski v. City of Chicago Heights, 147 Ill. App. 3d 528, 531 (1985)
       (Hapeniewski I), vacated, 484 U.S. 806 (1987), in which we held that demolition claims were
       subject to the Tort Immunity Act limitations period, despite the language in 2-101(e). We
       begin, as the trial court did, with our decision in Hapeniewski and trace the law on this issue as
       it has developed since then.
¶ 10       In Hapeniewski I, we reasoned as follows:
                    “Statutes of limitations are generally considered to affect the remedy only and not a
               substantive right. [Citation.] Statutes of limitations affect the remedy by limiting the
               period within which legal action may be brought or remedies may be enforced; they bar
               the right to sue for recovery but do not extinguish the underlying obligation. [Citation.]
               Because statutes of limitations generally do not affect substantive rights, we conclude
               that the word ‘liability’ used in section 2-101 does not refer to the statute of limitations
               and, therefore, suits brought under section 1-4-7 are not exempted from the *** statute
               of limitations in the Tort Immunity Act.” Hapeniewski I, 147 Ill. App. 3d at 531.
¶ 11       To reach this result, we had to distinguish Hecko v. City of Chicago, 25 Ill. App. 3d 572,
       578 (1975), in which we had already held that the statutory notice requirements of the Tort
       Immunity Act did not apply to a demolition claim. We reasoned in Hecko that section 2-101(e)
       of the Act was intended to “eliminate governmental immunity” in demolition actions.
       (Emphasis added.) Id. at 578. We distinguished Hecko in Hapeniewski I by treating the notice
       provision of the Act as substantive and the statute of limitations as procedural. Hapeniewski I,
       147 Ill. App. 3d at 531.
¶ 12       Although Hapeniewski I was vacated by the United States Supreme Court, later decisions
       in the case did not disturb our original determination that the Tort Immunity Act’s shorter
       statute of limitations applied to wrongful demolition claims. The issue appealed to the
       Supreme Court was whether the Act’s shorter limitations period also applied to the building
       owner’s federal civil rights action. The Court remanded the case to us for further consideration
       of that aspect of our decision in light of its own recent precedent. Hapeniewski v. City of
       Chicago Heights, 484 U.S. 806 (1987). Although our previous judgment was vacated, we did
       not disturb our initial analysis in Hapeniewski I regarding the limitations period for a
       demolition claim (see Hapeniewski v. City of Chicago Heights, 169 Ill. App. 3d 945 (1988)
       (Hapeniewski II)). Thus, both parties and other courts have continued to follow it.
¶ 13       The distinction that the first district in Hapeniewski I made between substance and
       procedure under section 2-101 of the Tort Immunity Act was adopted by the third district in


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       Slaughter v. Rock Island County Metropolitan Mass Transit District, 275 Ill. App. 3d 873
       (1985), and by the fifth district in Cooper v. Bi-State Development Agency, 158 Ill. App. 3d 19
       (1987), and McClintock v. Bi-State Development Agency, 228 Ill App. 3d 382 (1992). In
       Cooper the court held that the defendant, a public carrier, was entitled to the notice that was
       then required under the Tort Immunity Act, despite the language of subsection (b) of section
       2-101. The court reasoned:
                “Defendant, as a public carrier, owes its passengers the highest degree of care in
                contrast to the lower standards of care applicable to other public entities. [Citation.] By
                providing that nothing in the Tort Immunity Act affects defendant’s liability based
                upon operation as a common carrier, defendant is not ‘exempt’ from the Act. This
                provision preserves the standard of care to which defendant must adhere in order to
                avoid liability. Once notice is given, the liability of defendant as a common carrier is
                unaffected by the Act.” Cooper, 158 Ill. App. 3d at 24-25.
       In Slaughter and in McClintock, the courts followed the reasoning of Cooper and applied the
       one-year limitations period and the notice provision of the Tort Immunity Act to actions
       against a metropolitan mass transit district. However, Cooper and Slaughter expressly rejected
       the first district’s distinction between the notice and statute of limitations provisions in the Act,
       holding instead that both provisions were procedural and therefore applied to public entities
       and public employees, even as to the enumerated categories of claims that were exempted from
       the “substantive” protection of the Act under section 2-101. Cooper, 158 Ill. App. 3d at 25;
       Slaughter, 275 Ill. App. 3d at 875.
¶ 14       After these appellate court decisions, our supreme court decided Raintree Homes, Inc. v.
       Village of Long Grove, 209 Ill. 2d 248 (2004). There, the plaintiffs sought a declaration that the
       Village of Long Grove did not have the authority to pass an ordinance requiring the plaintiffs
       to pay impact fees when they applied for building permits. Raintree Homes, 209 Ill. 2d at 251.
       The trial court had dismissed the claim on the basis that it was barred by the one-year statute of
       limitations in the Tort Immunity Act. Id. Plaintiffs appealed, arguing that their claim fell
       outside the scope of the Act because of the first sentence in section 2-101, which states:
       “Nothing in this Act affects the right to obtain relief other than damages against a local public
       entity or public employee” (745 ILCS 10/2-101 (West 2010)). Raintree Homes, 209 Ill. 2d at
       254-55. Our supreme court held: “Plaintiffs’ claim is an action which seeks ‘relief other than
       damages,’ as set forth in the first sentence of section 2-101, and is, therefore, excluded from the
       Act.” Id. at 256 (quoting 745 ILCS 10/2-101 (West 2002)). The court made no mention of the
       distinction between substance and procedure that was relied upon in Hapeniewski I and the
       other cases cited above. And although Raintree Homes was about whether the Act applied to a
       claim in which the plaintiffs sought “relief other than damages,” our supreme court painted
       with a seemingly broad brush, looking at all of the “enumerated exceptions” in section 2-101
       together—including the one for demolition actions set out in 2-101(e)—in reaching its holding
       that section 2-101 created an exclusion from the Tort Immunity Act. Raintree Homes, 209 Ill.
       2d at 254-56.
¶ 15       After Raintree Homes was decided, appellate courts abandoned the distinction between
       substance and procedure relied on in earlier cases and treated the claims listed under section
       2-101 as simply “excluded” from any of the protections of the Tort Immunity Act.
¶ 16       In the first of these cases to be decided, Harvest Church of Our Lord v. City of East
       St. Louis, 407 Ill. App. 3d 649, 654 (2011), the court relied on Raintree Homes as follows:

                                                     -4-
                “[I]n Raintree Homes, Inc., the supreme court answered in the affirmative the precise
                question we are asked here: whether section 2-101 of the Tort Immunity Act operates
                to exclude the enumerated actions from the time limitation set forth in section 8-101(a)
                of the Tort Immunity Act. We are thus bound to follow its decision.”
¶ 17        Other decisions followed Harvest Church. See Ballinger v. City of Danville, 2012 IL App
       (4th) 110637, ¶ 17; Collins v. Town of Normal, 2011 IL App (4th) 100694, ¶ 20; United
       Airlines v. City of Chicago, 2011 IL App (1st) 102299, ¶ 8. In Collins, Justice Steigmann
       specially concurred, agreeing with his colleagues that Raintree Homes required the result that
       the court reached but urging our supreme court to reconsider the matter and distinguish
       between the application of substantive and procedural provisions of the Act to the types of
       claims listed in section 2-101. Collins, 2011 IL App (4th) 100694, ¶¶ 27-28 (Steigmann, J.,
       specially concurring). The City in this case acknowledged at oral argument that it was aware of
       no appellate court cases decided after Raintree Homes in which a court applied the distinction
       between substance and procedure to any claims listed in section 2-101 of the Act.
¶ 18        The trial court here relied on Hapeniewski I and the other cases decided prior to Raintree
       Homes. The City asks us to affirm on the basis that those cases rest on a better understanding of
       the statutory language and because our supreme court in Raintree Homes did not decide the
       issue presented here. Ms. Madison asks us to reverse, arguing that we are required to do so by
       the reasoning and holding in Raintree Homes. We agree with Ms. Madison that section 2-101
       exempts her demolition claim from the Act, including its one-year limitation period.
¶ 19        In Raintree Homes, our supreme court treated all of the exceptions in section 2-101
       together, making no distinction between the first sentence of section 2-101 and the second
       sentence that lists specific types of claims; our supreme court viewed the claim before it as
       “excluded” from the Act and did not qualify that exclusion based on a review of whether the
       provision of the Act at issue was substantive or procedural. Raintree Homes, 209 Ill. 2d at
       254-56. Even Justice Steigmann, who disagreed with the result his colleagues reached in
       Collins, agreed that Raintree Homes required courts to abandon the old distinction between
       substance and procedure. Collins, 2011 IL App (4th) 100694, ¶¶ 27-28 (Steigmann, J.,
       specially concurring.)
¶ 20        All that the City can offer in response to this is that the enumerated exceptions listed in
       section 2-101, including subsection (e), referencing demolition claims, were not the specific
       provisions of the Act that the court in Raintree Homes was asked to interpret. That is correct.
       However, where our supreme court makes a pronouncement, even where it is not essential to
       the disposition of the case, such a statement is either judicial dictum, which is entitled to “much
       weight,” or obiter dictum, which can be “binding in the absence of a contrary decision of that
       court.” (Internal quotation marks omitted.) Exelon Corp. v. Department of Revenue, 234 Ill. 2d
       266, 278-82 (2009). So we are surely not at liberty to simply disregard our supreme court’s
       statements in Raintree Homes about section 2-101 creating an exclusion from the Act.
¶ 21        Even if we are not bound by Raintree Homes to reject the old distinction between
       procedure and substance, our own examination of the statutory language in section 2-101
       confirms that the distinction is not supported. The relevant language of the statute is: “Nothing
       in this Act affects the liability, if any, of a local public entity or public employee, based on: ***
       (e). Section 1-4-7 of the ‘Illinois Municipal Code’, approved May 29, 1961, as heretofore or
       hereafter amended.” (Emphases added.) 745 ILCS 10/2-101 (West 2010). The language is
       broad. The legislature used the words “nothing” and “affects,” where it might have simply said

                                                     -5-
       that the Tort Immunity Act “does not determine the liability, if any, of a local public entity or
       public employee” for claims of the types listed. If employed by the legislature, this more
       limited language might have suggested that section 2-101 provides a limited exemption,
       affecting only substantive rights and duties. The broad language the legislature instead chose
       suggests that its intent was to ensure that “nothing” in the Act—including the Act’s shorter
       limitations period—could “affect” those types of claims. A plaintiff’s claim is certainly
       “affected” if it is barred as untimely.
¶ 22       Finally, the law is well-settled that the Act “is in derogation of the common law and must
       be strictly construed against the local government entity.” (Internal quotation marks omitted.)
       Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158 (1995). So to the extent that section
       2-101 is unclear, we must construe it against the City and in favor of allowing claimants the
       longer limitations period that the legislature has provided for claims outside of the protections
       of the Act.
¶ 23       The City makes two statutory construction arguments, both of which we reject. First, the
       City argues that subsection (b) of section 2-101 supports a distinction between substance and
       procedure because it reflects the language that the legislature used when it wanted to create the
       complete exemption from the Tort Immunity Act that Ms. Madison argues for here. The
       second part of subsection (b) provides: “and this Act does not apply to any entity organized
       under or subject to the ‘Metropolitan Transit Authority Act’, approved April 12, 1945, as
       amended.” The City’s argument, based on the analysis in Slaughter, is that this blanket
       exception is an example of “the precise terms the General Assembly uses when it means to
       exempt a claim from all the provisions of the Tort Immunity Act.” According to the City, the
       fact that this blanket exemption appears only in subsection (b) means that there is no “blanket
       exception” for the other claims listed in section 2-101, including the one in subsection (e) for
       wrongful demolition claims.
¶ 24       This argument reads too much into the language used in subsection (b). Subsection (b)
       contains two exemptions. The first is for “liability” “based on” “operation as a common
       carrier” and the second is for “any entity organized or subject to the Metropolitan Transit
       Authority Act.” As our supreme court has recognized, the language in the second clause is a
       “specific exclusion of the CTA from the Tort Immunity Act.” (Emphasis added.) Fujimura v.
       Chicago Transit Authority, 67 Ill. 2d 506, 514 (1977). Unlike the exemptions for types of
       claims listed in section 2-101, the exemption in the second part of subsection (b) is for a
       specific defendant. We do not find that the differences in the language used to articulate those
       exemptions compels the conclusion that one exemption is broader than the other or that, except
       for the CTA exemption, only the substantive protections afforded by the Act are referenced in
       section 2-101.
¶ 25       The City’s second argument is that section 8-101 of the Tort Immunity Act, which sets out
       the one-year statute of limitations (745 ILCS 10/8-101 (West 2010)), was amended in 2003 in
       a manner consistent with the existence of a distinction between substance and procedure. This
       argument has no merit, once we consider the reason for that 2003 amendment.
¶ 26       The amended provision that the City relies on is subsection (b) of section 8-101, relating to
       claims arising out of patient care, and states as follows:
                    “(b) No action for damages for injury or death against any local public entity or
               public employee, whether based upon tort, or breach of contract, or otherwise, arising
               out of patient care shall be brought more than 2 years after the date on which the

                                                   -6-
                claimant knew, or through the use of reasonable diligence should have known, or
                received notice in writing of the existence of the injury or death for which damages are
                sought in the action, whichever of those dates occurs first, but in no event shall such an
                action be brought more than 4 years after the date on which occurred the act or
                omission or occurrence alleged in the action to have been the cause of the injury or
                death.” 745 ILCS 10/8-101(b) (West 2010).
¶ 27        The City’s argument is that the mention in this amended provision of “breach of contract”
       actions “demonstrates an understanding that such actions are still subject to section 8-101’s
       limitations provisions, even though section 2-101(a) renders the substantive provisions of the
       Act inapplicable to them.” However, the legislative history reveals that the stated purpose for
       this amendment was to make the limitations period applicable to claims for medical
       malpractice against hospitals and doctors uniform, regardless of whether a plaintiff was treated
       at a private or a public facility. See 93d Ill. Gen. Assem., House Proceedings, Apr. 15, 2003, at
       4 (statements of Representative Hultgren) (“And what this does is it address[es] iniquity [sic]
       … inequity in the law right now where if someone goes to a … receives medical care from a
       public institution, they only have a one-year statute of limitations ***. If they go to a private
       institution it’d be a two year. What this is doing is making that all uniform.”).
¶ 28        The 2003 amendment was a direct response to our supreme court’s decision in Tosado v.
       Miller, 188 Ill. 2d 186, 196 (1999), holding that medical malpractice actions against a county
       hospital and its physician were subject to the one-year limitations period of the Act, rather than
       the two-year limitations period that applied generally to medical malpractice. See 93d Ill. Gen.
       Assem., Senate Proceedings, Mar. 20, 2003, at 54 (statements of Senator Righter) (noting that
       the amendment arose from a recent supreme court case). The amendment was “designed to
       level the playing field for patients in Illinois regardless of whether they may be in a public or
       private hospital. [The amendment] would make it two years across the board.” Id. at 53-54. To
       accomplish this, the 2003 amendment used the identical language used in section 13-212(a) of
       the Code, establishing a two-year limitations period for medical malpractice claims against
       physicians or hospitals generally. See 735 ILCS 5/13-212(a) (West 2002). That provision also
       states that it applies to actions arising out of patient care, “whether based upon tort, or breach
       of contract, or otherwise.” Id. The City offers us no reason to believe that the inclusion of that
       established language in the 2003 amendment to section 8-101(b) of the Act was in any way an
       endorsement by the legislature of the distinction between substance and procedure that the City
       wants us to recognize. Rather, it was plainly the result of the legislature’s desire to ensure that
       the identical limitations period would apply to all claims arising out of patient care, regardless
       of whether the defendant hospital was a public or private institution.
¶ 29        Finally, the City argues that, even if the demolition claim was timely, Ms. Madison’s other
       three claims are not. We agree. Ms. Madison suggests, with no citation to authority, that her
       claims for unlawful taking or inverse condemnation, negligence, and conversion fall outside of
       the scope of the Tort Immunity Act because they are “derivative” of the demolition claim and
       therefore also exempted by section 2-101. Ms. Madison provided no basis, in either her brief or
       when specifically asked about this at oral argument, for treating claims that are not listed in
       2-101 as outside of the Tort Immunity Act because they are “derivative” of claims that are
       listed. We affirm the dismissal of these claims.




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¶ 30                                          CONCLUSION
¶ 31       For the foregoing reasons, we reverse the dismissal of count I for wrongful demolition,
       affirm the dismissal of counts II through IV, and remand for further proceedings in accordance
       with this opinion.

¶ 32      Affirmed in part and reversed in part.




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