                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




              Catom Trucking, Inc. v. City of Chicago, 2011 IL App (1st) 101146




Appellate Court              CATOM TRUCKING, INC., RICHARD MCDONALD, TOM
Caption                      STELLMAN, and CHAD STANKO, Plaintiffs-Appellants, v. THE
                             CITY OF CHICAGO, Defendant-Appellee.



District & No.               First District, Fifth Division
                             Docket No. 1–10–1146


Filed                        June 10, 2011


Held                         The City of Chicago’s department of administrative hearings lacks
(Note: This syllabus         jurisdiction over violations of municipal-ordinance offenses arising
constitutes no part of the   from overweight truck loads, as the provisions of the ordinance are
opinion of the court but     sufficiently similar to provisions of the Motor Vehicle Code to prohibit
has been prepared by the     use of administrative hearings for adjudications under section 1–2.1–2
Reporter of Decisions for    of the Illinois Municipal Code, and although a bond is authorized by the
the convenience of the       city’s ordinance, detention of overweight vehicles in lieu of a bond is
reader.)                     not authorized by city ordinance, but the city may use nonpolice officers
                             to enforce its weight regulations.


Decision Under               Appeal from the Circuit Court of Cook County, No. 07–CH–1228; the
Review                       Hon. LeRoy K. Martin, Jr., Judge, presiding.



Judgment                     Affirmed in part and reversed in part; cause remanded.
Counsel on                  Bernard K. Weiler, of Mickey, Wilson, Weiler, Renzi & Andersson,
Appeal                      P.C., of Chicago, for appellants.

                            Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth
                            Solomon, Myriam Zreczny Kasper, and Kerrie Maloney Laytin,
                            Assistant Corporation Counsel, of counsel), for appellee.


Panel                       JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
                            Presiding Justice Fitzgerald Smith and Justice J. Gordon concurred in
                            the judgment and opinion



                                              OPINION

¶1          Catom Trucking, Inc. (Catom), its owner and principal, Tom Stellman, and two of its
        professional drivers, Richard McDonald and Chad Stanko, challenge in their second
        amended complaint (the Complaint) certain procedures and regulations allegedly adopted by
        the City of Chicago (the City) in furtherance of chapter 9–72 of the City’s Municipal Code
        (the City Code) (Chicago Municipal Code, ch. 9–72). Chapter 9–72 regulates size and weight
        limits on the City’s roadways, and plaintiffs frequently transport overweight loads. The trial
        court dismissed two of plaintiffs’ six claims (counts II and V) and granted the City summary
        judgment on the remainder of the Complaint. Plaintiffs appeal all but the dismissal of count
        V. For the reasons below, we reverse in part, affirm in part, and remand for further
        proceeding.

¶2                                          BACKGROUND
¶3          Catom is a named defendant in two cases involving sections 9–72–070 and 9–72–080 of
        the City Code (Chicago Municipal Code § 9–72–070 (amended Nov. 15, 2006); § 9–72–080
        (amended Dec. 7, 2005)) that were tried by the City’s department of administrative hearings
        (the Department). Section 9–72–070 governs special permits for overweight vehicles and
        9–72–080 addresses weight limitations, violations, and penalties. Catom is charged with
        violations under each section.
¶4          In count I of the Complaint, filed during the pendency of the Department’s proceeding,
        Catom seeks a declaration that the Department lacks jurisdiction over Catom’s claims
        because section 1–2.1–2 of the Illinois Municipal Code (the Administrative Adjudication
        Statute) (65 ILCS 5/1–2.1–2 (West 2008)) allegedly bars administrative adjudication of those
        claims. Count II is a request for a declaration that the City’s permit requirements are invalid.
        Catom alleges that although the City requires a local permit for “trucks on State Route 38
        within the City of Chicago, to the extent that the weight of the vehicle exceed 73,600 lbs,”
        such a permit is not required because Route 38 falls within the jurisdiction of the state and

                                                  -2-
       not the City.
¶5         McDonald and Stanko claim in counts III and VI that they were improperly stopped and
       detained by employees of the City’s department of consumer services. According to
       McDonald:
                   “On August 1, 2006, October 12, 2005, and some other occasions, the City’s
               uniformed truck enforcement agents used vehicles with rotating flashing lights and
               red flags to stop the vehicle driven by McDonald and, upon stopping him, presented
               themselves to him, representing that they had the authority to stop the vehicle and to
               detain him, weigh his vehicle, and hold him until such time as bond was posted and
               until such time as they, in their discretion, advised him that he was free to go.”
       Stanko alleges a similar experience and maintains, along with McDonald, that the City
       cannot use nonpolice officers to make traffic stops or detain overweight vehicles.
¶6         Catom seeks a declaration in count IV that neither the City Code nor the state’s statutes
       authorize the City’s alleged requirement that “trucks which are found to be overweight in
       operation on the streets of the City of Chicago *** post bond in order to remove their
       vehicles.” The trial court rejected all of plaintiffs’ claims, summarily dismissing count II with
       prejudice and granting the City summary judgment on counts I, III, IV, and VI. Plaintiffs
       appeal, contending count II states a claim for relief and that summary judgment should have
       been granted in their favor and against the City on counts I, III, IV, and VI.

¶7                                          ANALYSIS

¶8                     I. Catom Is Entitled to Summary Judgment on Count I
¶9          Summary judgment is intended to determine whether triable issues of fact exist and “is
       appropriate where the pleadings, affidavits, depositions, admissions, and exhibits on file,
       when viewed in the light most favorable to the nonmovant, reveal that there is no genuine
       issue as to any material fact and that the movant is entitled to judgment as a matter of law.”
       Busch v. Graphic Color Corp., 169 Ill. 2d 325, 333 (1996). “When, as in this case, parties
       file cross-motions for summary judgment, they concede the absence of a genuine issue of
       material fact and invite the court to decide the questions presented as a matter of law.”
       Steadfast Insurance Co. v. Caremark Rx, Inc., 359 Ill. App. 3d 749, 755 (2005). “On appeal,
       our standard of review is de novo; and we may affirm the trial court’s grant of summary
       judgment on any ground apparent from the record.” Fan v. Auster Co., 389 Ill. App. 3d 633,
       648 (2009).
¶ 10        “As a general rule, a party who is aggrieved by administrative action cannot seek relief
       in the courts without first pursuing all administrative remedies available to him.” Walker v.
       State Board of Elections, 65 Ill. 2d 543, 551-52 (1976). One exception lies “where the
       agency’s authority or jurisdiction is challenged.” Midland Enterprises, Inc. v. City of
       Elmhurst, 226 Ill. App. 3d 494, 501 (1993). Here, Catom maintains the Administrative
       Adjudication Statute strips the Department of jurisdiction over Catom’s claims. We agree.
¶ 11        The City, as a home rule unit, “possess the same powers as the state government, except


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       where such powers are limited by the General Assembly.” Johnson v. Halloran, 194 Ill. 2d
       493, 496-97 (2000). The City “may exercise and perform concurrently with the State any
       power or function of a home rule unit to the extent that the General Assembly by law does
       not specifically limit the concurrent exercise or specifically declare the State’s exercise to
       be exclusive.” Ill. Const. 1970, art. VII, § 6(i). Catom maintains here that the Administrative
       Adjudication Statute limits the Department’s authority. The statute provides:
               “Any municipality may provide by ordinance for a system of administrative
               adjudication of municipal code violations to the extent permitted by the Illinois
               Constitution. A ‘system of administrative adjudication’ means the adjudication of any
               violation of a municipal ordinance, except for (i) proceedings not within the statutory
               or the home rule authority of municipalities; and (ii) any offense under the Illinois
               Vehicle Code [(625 ILCS 5/1–100 et seq. (West 2008))] or a similar offense that is
               a traffic regulation governing the movement of vehicles and except for any reportable
               offense under Section 6–204 of the Illinois Vehicle Code [(625 ILCS 5/6–204 (West
               2008))].” 65 ILCS 5/1–2.1–2 (West 2008).
       It is undisputed here that Catom’s alleged violations of the City Code are not reportable
       under section 6–204. Nevertheless, Catom maintains those alleged violations fall within
       subsection (ii) of the statute because they are “identical to the offenses defined in the Illinois
       Vehicle Code and *** are traffic regulations governing the movement of vehicles over the
       public roadways.” The City responds that its ordinances differ from the Illinois Vehicle Code
       (Vehicle Code); that Catom is misreading subsection (ii); and that, even if Catom’s
       interpretation is correct, sections 9–72–070 and 9–72–080 “do not govern the movement of
       vehicles.” We will address each in turn.

¶ 12         A. Sections 9–72–070 and 9–72–080 Are Similar to the Vehicle Code
¶ 13      Section 9–72–070 allows the executive director of the City’s Office of Emergency
       Management and Communications to
              “issue a special permit authorizing a vehicle or combination of vehicles not in
              conformity with the size regulations of th[at] chapter or the wheel and axle load and
              gross weight provisions of Section 15–111 of the Illinois Vehicle Code [(625 ILCS
              5/15–112 (West 2008))], to be operated or moved upon any street or highway under
              the jurisdiction of the city.” Chicago Municipal Code § 9–72–070(a)(1).
       Section 9–72–070 mandates, in relevant part:
                   “(e) Every permit issued under this section shall be carried in the vehicle to which
              it refers and shall be produced for inspection upon request by any police officer or
              any other authorized agent of the city. If a permit is not produced upon request, the
              person operating the vehicle shall be deemed as operating the vehicle and its load
              without a permit in violation of this section.
                   (f) It shall be unlawful for any person issued a permit under this section, or any
              employee or agent of such person, to violate any of the terms or conditions of the
              permit.” Id. §§ 9–72–070(e), (f).


                                                  -4-
       These provisions are similar to section 15–301 of the Vehicle Code. It, too, authorizes the
       issuance of special permits and mandates that “[e]very permit shall be *** carried in the
       vehicle or combination of vehicles to which it refers and shall be open to inspection by any
       police officer or authorized agent of any authority granting the permit and no person shall
       violate any of the terms or conditions of such special permit.” 625 ILCS 5/15–301(a), (f)
       (West 2008).
¶ 14       As for section 9–72–80, it provides, in relevant part:
                   “(a) Except as specifically allowed by statute or other ordinance, no person shall
               operate on any public way within the city any motor vehicle whose gross weight
               exceeds the limits described in Section 15–111 of the Illinois Motor Vehicle Code.
               The weight limitations and formulae contained in Section 15–111 of the Illinois
               Motor Vehicle Code are hereby incorporated by reference for purposes of calculating
               permissible weights under this section.
                   (b) Any person who refuses or fails to stop and submit his or her vehicle and load
               after being directed to do so by an authorized agent of the city, or who removes or
               causes the removal of any portion of the load prior to weighing, shall be fined not
               less than $500.00 and not more than $2,000.00.
                   ***
                   (d) Whenever any vehicle is operated in violation of the provisions of this
               section, the owner or driver of the vehicle shall be jointly and severally liable for the
               violation.
                   (e) Penalties for any violation of this section shall be in addition to any penalties
               imposed for the violation of any other section of this chapter.” Chicago Municipal
               Code §§ 09–72–080(a), (b), (d), (e).
       These provisions are similar to section 15–112 of the Vehicle Code, which provides:
               “Any driver of a vehicle who refuses to stop and submit his vehicle and load to
               weighing after being directed to do so by an officer or removes or causes the removal
               of the load or part of it prior to weighing is guilty of a business offense and shall be
               fined not less than $500 nor more than $2,000.” 625 ILCS 5/15–112(g) (West 2008).
       Also similar is section 15–113(a): “Whenever any vehicle is operated in violation of the
       provisions of Section 15–111 or subsection (d) of Section 3–401, the owner or driver of such
       vehicle shall be deemed guilty of such violation and either the owner or the driver of such
       vehicle may be prosecuted for such violation.” 625 ILCS 5/15–113(a) (West 2008). Catom’s
       alleged violations under sections 9–72–70 and 9–72–080 of the City Code are similar, though
       not identical, to offenses under the Vehicle Code.

¶ 15    B. Catom’s Interpretation of the Administrative Adjudication Statute Is Correct
                 “The primary rule of statutory construction is to ascertain and give effect to the
             true intent of the legislature. To determine the legislative intent, a court should first
             consider the statutory language, and where the language is clear, it will be given
             effect without resort to other aids for construction. [Citation.] The court must

                                                 -5-
                examine the language of the statute as a whole and consider each part or section in
                connection with every other part or section.” People v. Picou, 260 Ill. App. 3d 692,
                694-95 (1994).
       “We must construe the statute so that each word, clause, or sentence is given reasonable
       meaning and not deemed superfluous or void.” Quad Cities Open, Inc. v. City of Silvis, 208
       Ill. 2d 498, 508 (2004). The statute here prohibits the administrative adjudication of “any
       offense under the Illinois Vehicle Code or a similar offense that is a traffic regulation
       governing the movement of vehicles and except for any reportable offense under Section
       6–204 of the Illinois Vehicle Code.” 65 ILCS 5/1–2.1–2 (West 2008). The City argues that
       “this exclusion prohibits administrative adjudication of citations for municipal offenses that
       are similar to the ones prohibited in the Illinois Vehicle Code and that are both ‘traffic
       regulation[s] governing the movement of vehicles’ and ‘reportable offense[s] under Section
       6–204 of the Illinois Vehicle Code.’ ” This interpretation renders superfluous the words
       “except for any” in the last sentence of subsection (ii). Had the legislature intended the
       meaning advanced by the City, it simply could have stated “any offense under the Illinois
       Vehicle Code or a similar offense that is a traffic regulation governing the movement of
       vehicles and *** reportable *** under Section 6–204 of the Illinois Vehicle Code.” See 65
       ILCS 5/1–2.1–2(ii) (West 2008). It did not.
¶ 16        The proper reading of subsection (ii) is that it excludes “any offense under the Illinois
       Vehicle Code or a similar offense that is a traffic regulation governing the movement of
       vehicles,” as well as “any reportable offense under Section 6–204 of the Illinois Vehicle
       Code.” This reasonably construes all the words in subsection (ii) and it recognizes that not
       every violation of the Vehicle Code or similar ordinance governing the movement of vehicles
       is a reportable offense. See, e.g., 625 ILCS 5/6–204(2) (West 2008) (“Whenever any person
       is convicted of any offense under this Code or similar offenses under a municipal ordinance,
       other than regulations governing standing, parking or weights of vehicles, and excepting the
       following enumerated Sections of this Code: *** 11–1410 (coasting on downgrade), *** and
       also excepting the following enumerated Sections of the Chicago Municipal Code: ***
       27–259 (coasting on downgrade), *** it shall be the duty of the clerk of the court in which
       such conviction is had within 5 days thereafter to forward to the Secretary of State a report
       of the conviction and the court may recommend the suspension of the driver’s license or
       permit of the person so convicted.”).

¶ 17        C. Sections 9–72–070 and 9–72–080 Regulate the Movement of Vehicles
¶ 18       The City maintains that sections 9–72–070 and 9–72–080 “do not in fact regulate ‘the
       movements of vehicles,’ 65 ILCS 5/1–2.1–2, because they specifically prohibit the
       ‘operat[ion],’ not ‘movement,’ of overweight vehicles, Municipal Code of Chicago, Ill.
       §§ 9–72–070(a), –080(a).” This position is not supported, however, by the actual language
       of section 9–72–070:
               “The executive director may, upon application in writing and good cause being
               shown, issue a special permit authorizing a vehicle or combination of vehicles not
               in conformity with the size regulations of this chapter or the wheel and axle load and


                                                -6-
              gross weight provisions of Section 15–111 of the Illinois Vehicle Code, to be
              operated or moved upon any street or highway under the jurisdiction of the city.”
              (Emphasis added.) Chicago Municipal Code § 9–72–070(a)(1).
       The City’s position is further belied by the fact that its own municipal code defines Catom’s
       alleged violations under sections 9–72–070 and 9–72–080 as “traffic violations”:
                  “ ‘Traffic’ means pedestrians, ridden or herded animals, bicycles, vehicles, and
              other conveyances either singly or together while using any public way for purposes
              of travel.
                                                ***
                  ‘Traffic violation’ means a violation of the provisions of Chapter 9–4 through
              9–100, other than a standing or parking violation.” (Emphasis added.) Chicago
              Municipal Code § 9–4–010 (eff. Feb. 11, 2009).
       The claims here do not involve a parking or standing violation:
                  “ ‘Parking (to park)’ means the standing of an unoccupied vehicle otherwise than
              temporarily for the purpose of and while actually engaged in loading or unloading
              property or passengers.
                                                ***
                  ‘Standing (to stand)’ means the halting of a vehicle, whether occupied or not,
              otherwise than temporarily for the purpose of and while actually engaged in receiving
              or discharging passengers; provided, that, an operator is either in the vehicle or in the
              immediate vicinity, so as to be capable of immediately moving the vehicle at the
              direction of a police officer or traffic control aide.” Id.
       Sections 9–72–070 and 9–72–080 are clearly traffic regulations governing the movement of
       vehicles. See Chicago Municipal Code § 9–4–030 (2006) (“Chapters 9–4 through 9–100 of
       the Municipal Code of Chicago shall be known and may be cited as ‘the traffic code.’ ”).
       That, as the City now argues, stationary vehicles may also violate these ordinances is
       inconsequential. Catom’s alleged violations under sections 9–72–070 and 9–72–080, which
       are moving violations, cannot be administratively adjudicated. We reverse the trial court’s
       summary judgment order on count I. The Department lacks jurisdiction.

¶ 19                     II. Count II States a Claim for Declaratory Relief
¶ 20       In July 2007 the trial court summarily granted the City’s motion to dismiss count II with
       prejudice. While the City originally moved to dismiss count II pursuant to both sections
       2–615 and 2–619 of the Illinois Code of Civil Procedure (735 ILCS 5/2–615, 2–619 (West
       2008)), it subsequently withdrew its section 2–619 arguments, relying only on section 2–615.
                    “A motion to dismiss under section 2–615 attacks only the legal sufficiency of
               the complaint. [Citation.] Such a motion does not raise affirmative factual defenses,
               as does a motion under section 2–619 of the Code, but rather alleges only defects on
               the face of the complaint. [Citation.] The question presented by a motion to dismiss
               under section 2–615 is whether sufficient facts are contained in the pleadings which,
               if proved, would entitle the plaintiff to relief. [Citation.] The only matters to be

                                                 -7-
                considered in ruling on such a motion are the allegations of the pleadings
                themselves.” Urbaitis v. Commonwealth Edison, 143 Ill. 2d 458, 475 (1991).
       “A dismissal under either section 2–615 or section 2–619 is reviewed de novo.” Zahl v.
       Krupa, 365 Ill. App. 3d 653, 658 (2006).
¶ 21        Catom maintains in count II that the City may not mandate city permits for overweight
       vehicles traveling on State Route 38 because Route 38 is within the jurisdiction of the state
       and not the City. The City responds that it need not have jurisdiction over State Route 38
       because the state has not preempted the City’s “home-rule authority to regulate the weight
       of vehicles on state roads within the City’s borders,” and “if the City needed specific
       authority to regulate overweight vehicles traveling over state roads, it is conferred by a
       regulation of the Illinois Department of Transportation.” We need not address these
       contentions, however, for the City’s permit ordinance, section 9–72–070, is not that broad.
                    “In construing an ordinance, the same rules employed in statutory construction
                apply. [Citation.] Effect should be given to the drafter’s intention as evidenced by the
                terminology used, the goals and purposes, the natural import of the words used in
                common and accepted usage, and the general, structure of the ordinance. [Citation.]
                Finally, a court should not adopt a construction that renders words or phrases
                superfluous.” County of Montgomery v. Deer Creek, Inc., 294 Ill. App. 3d 851, 856
                (1998).
       Here, section 9–72–070 provides, in relevant part:
                    “(a)(1) The executive director may, upon application in writing and good cause
                being shown, issue a special permit authorizing a vehicle or combination of vehicles
                not in conformity with the size regulations of this chapter or the wheel and axle load
                and gross weight provisions of Section 15–111 of the Illinois Vehicle Code, to be
                operated or moved upon any street or highway under the jurisdiction of the city. ***
                    (2) The executive director may, upon application in writing and good cause being
                shown, issue a special annual permit authorizing a vehicle or combination of vehicles
                not in conformity with the size regulations of this chapter or the wheel and axle load
                and gross weight provisions of Section 15–111 of the Illinois Vehicle Code to
                operate in the following designated industrial truck corridor *** [not including Route
                38].
                    The permit shall authorize the operation of a vehicle, whose total gross weight
                is equal to or less than 160,000 pounds, within the designated industrial truck
                corridor for the purpose of delivery or pick up of materials. The movement and
                operation of any vehicle within the designated truck corridor whose: (i) total gross
                weight is greater than 160,000 pounds; or (ii) movement and operation is for
                purposes other than for delivery [or] pick up of materials or merchandise within the
                designated industrial truck corridor shall be subject to the provisions of subsection
                (a)(1) of this section.” (Emphasis added.) Chicago Municipal Code § 9–72–070(a).
       As subsection (1) of section 9–72–070(a) is unambiguously limited to roadways within the
       City’s jurisdiction, and Route 38 is not within the roadways enumerated under subsection (2),
       it is irrelevant, at least for purposes of plaintiff’s claim in count II, whether, as the City

                                                 -8-
       argues, it has authority to regulate roadways outside its jurisdiction. Count II states a claim
       for declaratory relief. See Young v. Mory, 294 Ill. App. 3d 839, 845 (1998) (“In order to state
       a cause of action for declaratory judgment, a plaintiff must allege (1) that he has a tangible
       legal interest with regard to the claim, (2) that the defendant’s conduct is opposed to that
       interest, and (3) that there is an ongoing controversy between the parties that is likely to be
       prevented or resolved if the court decides the case.”). We reverse the trial court’s dismissal
       of count II. The issue of who actually has jurisdiction over Route 38, while addressed in
       plaintiffs’ brief here, is outside the scope of section 2–615.

¶ 22    III. The Trial Court’s Summary Judgment Order on Counts III and VI Is Affirmed
¶ 23        Stanko and McDonald claim in counts III and VI that the City cannot use nonpolice
       officers to enforce its weight regulations because “[t]he authority to make traffic stops and
       to detain drivers of vehicles is exclusively vested in sworn police officers” by section 15–112
       of the Vehicle Code. We disagree.
¶ 24        Again, the City, as a home rule unit, “possess[es] the same powers as the state
       government, except where such powers are limited by the General Assembly.” Johnson, 194
       Ill. 2d at 496-97. Such a limitation will not be inferred, however; the “legislation must
       contain express language that the area covered by the legislation is to be exclusively
       controlled by the State.” Village of Bolingbrook v. Citizens Utilities Co. of Illinois, 158 Ill.
       2d 133, 138 (1994). “It not enough that the State comprehensively regulates an area which
       otherwise would fall into home rule power.” Id. Here, section 15–112 provides, in relevant
       part:
                “Officers to weigh vehicles and require removal of excess loads.
                    (a) Any police officer having reason to believe that the weight of a vehicle and
                load is unlawful shall require the driver to stop and submit to a weighing of the same
                either by means of a portable or stationary scales that have been tested and approved
                at a frequency prescribed by the Illinois Department of Agriculture, or for those
                scales operated by the State, when such tests are requested by the Department of State
                Police, whichever is more frequent.” 625 ILCS 5/15–112(a) (West 2008).
       This provision does not expressly bar the City from regulating overweight vehicles on its
       roadways nor does it preclude the City from authorizing nonpolicers officers to enforce the
       City’s weight ordinances. People v. Industrial Salvage, Inc., 136 Ill. App. 3d 1068, 1072
       (1985), cited by plaintiff in support of a contrary conclusion, is inapposite. There, this court
       held that although a stop “as contemplated under section 15–112(a) of the Illinois Vehicle
       Code is not *** an arrest,” our “legislature has limited stops for temporary questioning to
       police officers and that it was not a power that the legislature intended to put into the hands
       of a private citizen. Ill. Rev. Stat. 1983, ch. 38, par. 107–14 [(now 725 ILCS 5/107–14 (West
       2008))].” 136 Ill. App. 3d at 1072. Industrial Salvage is distinguishable, however, because
       it involved a violation of the Vehicle Code not a municipal ordinance. Id. at 1069. Moreover,
       there, unlike in this case, the government actor did not purport to be exercising municipal
       authority. Here, plaintiffs acknowledge the City’s agents claimed such authority and that “[a]t
       no time *** [were Stanko and] McDonald ever investigated for the violation of any law,

                                                 -9-
       other than the violation of the City of Chicago ordinance as it pertained to the operation of
       trucks on the streets of the City of Chicago.” Industrial Salvage is inapposite.
¶ 25       According to plaintiffs, however, the City may not use nonpolice officers to enforce its
       ordinances because such use allegedly violates the Illinois Police Training Act (50 ILCS
       705/1 et seq. (West 2008)), as well as section 107–3 of the Illinois Code of Criminal
       Procedure of 1963 (725 ILCS 5/107–3 (West 2008)). We need not address these contentions,
       however, for plaintiffs have not pled either statute in the Complaint. “A plaintiff fixes the
       issues in controversy and the theories upon which recovery is sought by the allegations in her
       complaint. [Citation.] It is a fundamental rule, with no exceptions, that a party must recover
       on and according to the case she has made for herself by her pleadings.” Kincaid v. Ames
       Department Stores, Inc., 283 Ill. App. 3d 555, 568 (1996). “A party cannot seek summary
       judgment on a theory that was never pled in the complaint.” Steadfast Insurance Co. v.
       Caremark Rx, Inc., 373 Ill. App. 3d 895, 900 (2007); Gold Realty Group Corp. v. Kismet
       Café, Inc., 358 Ill. App. 3d 675, 680 (2005) (“In deciding a motion for summary judgment,
       the court considers the pleadings to determine what the issues are and in so doing it
       presupposes that the pleadings join the issue.”). The only properly pled claim in count III is
       that section 15–112 precludes the City from authorizing nonpolice officers to stop and/or
       detain drivers of overweight vehicles. As it does not, we affirm the trial court’s summary
       judgment order on counts III and VI. This is not to say, however, that the City’s agents acted
       properly. We simply hold that the basis relied on by plaintiffs in counts III and VI to
       challenge the agents’ conduct is unavailing.

¶ 26               IV. The Trial Court’s Summary Judgment Order on Count IV
                              Is Affirmed in Part and Reversed in Part
¶ 27       Catom maintains in count IV that neither the City’s ordinances nor the state’s statutes
       “authorize[ ] the detention of overweight vehicles after weighing or requir[e] the owners of
       trucks to post bond when found to be overweight.” The City argues, as an initial matter, that
       the court lacks subject matter jurisdiction to address Catom’s claims in count IV. While the
       City did not raise this issue below, we will nevertheless address it for subject matter
       jurisdiction may be challenged “at any time and may even be raised sua sponte by a
       reviewing court.” Ruff v. Splice, Inc., 398 Ill. App. 3d 431, 435 (2010). The City maintains
       this court lacks jurisdiction because “Count 4 of [plaintiffs’] second amended complaint
       alleges that the incidents at issue were set for trial before DOAH [the Department].”
       According to the City:
               “DOAH has rendered its decision, and plaintiffs have sought review in the circuit
               court[, in a separate action,] pursuant to the Administrative Review Law. [Citation.]
               That action allows plaintiffs to make their claim that the actions of City investigators
               exceeded their authority under the City’s ordinances and that they agency’s ruling is
               contrary to the law. [Citation]. It is well settled that when the Administrative Review
               law is applicable and provides a remedy, the circuit courts have no authority to hear
               the claim through any other type of action.”
       This arguments fails, however, for Catom has not alleged in count IV that it challenged, or

                                                -10-
       could challenge, the detention of its vehicle(s) before the Department. There is no allegation
       in count IV that Catom’s citations in the pending administrative review cases arose from the
       removal of a detained vehicle, as opposed to, for example, an alleged failure to post the
       requisite monetary bond under the ordinance. To the contrary, Catom has alleged that in each
       of the actions before the circuit court, “the vehicles of Catom had been stopped by employees
       of the City of Chicago Department of Consumer Services and retained until such time as
       Catom posted bond for the release of said vehicles.” The City has not demonstrated that
       Catom’s claim regarding the detention of its vehicles is a matter pending in the
       administrative proceeding.
¶ 28       As for the merits of count IV, the City argued before the trial court that it is entitled to
       summary judgment because “[t]he sole question raised by Count IV is whether the City has
       legal authority to require drivers who are cited for violating the City’s overweight vehicle
       ordinances to post a bond in an amount equal to the amount of the citation before
       department” (emphasis in original), and section 9–72–090(a) expressly authorizes a bond:
               “A person issued a notice for a violation of any weight limitations imposed by this
               chapter, or any term or condition of a permit issued under Section 9–72–070, shall,
               upon issuance of the citation, deposit with the city a bond in the form of a money
               order *** in an amount equal to the minimum fine established for such violation.”
               Chicago Municipal Code § 9–72–090(a) (amended Nov. 19, 2008).
       Catom responded by conceding the City’s authority to require a bond, but reasserted that the
       City’s requirement “that a vehicle not be moved until a bond is posted” was invalid.
       According to Catom, “nothing in the City’s statutes authorize[s] the City to impound a
       vehicle or to prohibit an owner from recovering it. *** The ordinances do not permit the City
       to confiscate property of another and to hold it ransom for that bond.” While the City
       challenged Catom’s use of the term “impounded,” it did not address the merits of Catom’s
       claim. The trial court nevertheless granted the City summary judgment on count IV, in its
       entirety, denying Catom’s cross-motion. We reverse in part. While the City’s ordinance
       clearly authorizes a bond, it does not authorize the City to detain overweight vehicles in lieu
       of a bond. The City did not even make such a claim in its submissions for summary
       judgment.
                   “[A] party moving for summary judgment need not prove its case or disprove the
               nonmovant’s case. [Citation.] Rather, the movant is entitled to summary judgment
               where it can demonstrate the absence of a genuine issue of material fact. [Citation.]
               The nonmoving party may defeat a claim for summary judgment by demonstrating
               that such a question of material fact exists. [Citation.] Although the nonmoving party
               also need not prove his case at the summary judgment stage, he must come forth with
               some evidence that arguably would entitle him to recover at trial.” Keating v. 68th
               & Paxton, L.L.C., 401 Ill. App. 3d 456, 472 (2010).
       While it is undisputed here that the City’s agents informed plaintiffs they could not depart
       without posting a bond, the City proffers no statute or ordinance authorizing such conduct.
       Catom is entitled to summary judgment on that portion of count IV. We reverse the trial
       court’s contrary ruling and affirm the bond requirement.


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¶ 29                                      CONCLUSION
¶ 30       We reverse the trial court’s orders on counts I and II. The Department lacks jurisdiction
       to adjudicate Catom’s alleged violations under sections 9–72–070 and 9–72–080. Count II
       states a claim for relief. We affirm the trial court’s summary judgment orders on counts III
       and VI. Section 15–112 of the Vehicle Code does not preclude the City from authorizing
       nonpolice officers to stop or detain overweight vehicles. As for count IV, we affirm in part
       and reverse in part. While the City Code requires a bond, there is no evidence of a statute or
       ordinance authorizing city employees to detain overweight vehicles in lieu of a bond. We
       remand with directions to vacate the summary judgment order on count I and part of count
       IV, to enter partial summary judgment in Catom’s favor on count IV, to vacate the order
       dismissing count II, and to conduct further proceedings on count II not inconsistent with this
       opinion.
¶ 31       Affirmed in part and reversed in part; cause remanded.




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