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                                    Appellate Court                            Date: 2016.08.18
                                                                               14:42:26 -05'00'




        Village of East Dundee v. Village of Carpentersville, 2016 IL App (2d) 151084



Appellate Court         THE VILLAGE OF EAST DUNDEE, Plaintiff-Appellant, v. THE
Caption                 VILLAGE OF CARPENTERSVILLE, WAL-MART STORES, INC.,
                        and WAL-MART REAL ESTATE BUSINESS TRUST,
                        Defendants-Appellees.



District & No.          Second District
                        Docket No. 2-15-1084



Filed                   June 20, 2016



Decision Under          Appeal from the Circuit Court of Kane County, No. 15-MR-428; the
Review                  Hon. David R. Akemann, Judge, presiding.



Judgment                Vacated in part and reversed in part; cause remanded with directions.



Counsel on              Richard C. Gleason, Thomas G. Gardiner, and Michelle Lagrotta, all
Appeal                  of Gardiner Koch Weisberg & Wrona, of Chicago, for appellant.

                        Steven M. Elrod, Steven B. Varick, and Hart M. Passman, all of
                        Holland & Knight LLP, of Chicago, for appellee Village of
                        Carpentersville.

                        John A. Simon, of Drinker, Biddle & Reath LLP, of Chicago, for
                        appellees Wal-Mart Stores, Inc., and Wal-Mart Real Estate Business
                        Trust.
     Panel                      JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                                Justices Hutchinson and Jorgensen concurred in the judgment and
                                opinion.
                                                OPINION

¶1         This is the Village of East Dundee’s (East Dundee) second lawsuit against the Village of
       Carpentersville (Carpentersville) and Wal-Mart Stores, Inc. (Wal-Mart), 1 arising from
       Wal-Mart’s decision to close its retail store in East Dundee and open a Wal-Mart Supercenter
       less than 10 miles away, in Carpentersville. See Village of East Dundee v. Village of
       Carpentersville, 2014 IL App (2d) 131006-U, ¶ 2 (East Dundee I). In East Dundee I, East
       Dundee sought a declaratory judgment that Carpentersville was required to make certain
       findings pursuant to section 11-74.4-3(q)(13) of the Tax Increment Allocation Redevelopment
       Act (Act) (65 ILCS 5/11-74.4-3(q)(13) (West 2014)),2 based on documentation submitted by
       Wal-Mart, before it could fund any redevelopment project directly related to Wal-Mart’s
       planned relocation. East Dundee I, 2014 IL App (2d) 131006-U, ¶ 2. East Dundee also sought
       a writ of prohibition, a writ of mandamus, and an injunction. East Dundee I, 2014 IL App (2d)
       131006-U, ¶ 2. The first suit was involuntarily dismissed for lack of ripeness. East Dundee I,
       2014 IL App (2d) 131006-U, ¶ 2. We affirmed. East Dundee I, 2014 IL App (2d) 131006-U,
       ¶ 31. Because Carpentersville had not yet made any findings pursuant to section
       11-74.4-3(q)(13), there was no way to predict whether defendants would violate that section.
       East Dundee I, 2014 IL App (2d) 131006-U, ¶ 31.
¶2         On April 6, 2015, East Dundee filed the instant lawsuit,3 also arising from Wal-Mart’s
       planned relocation. East Dundee alleged that the controversy was ripe, because Carpentersville
       had made the necessary findings but failed to require evidence from Wal-Mart that its closure
       of the East Dundee store was due to circumstances beyond its control. The trial court granted
       defendants’ motions for involuntary dismissal on the ground that East Dundee lacked standing.
       East Dundee appeals that order, as well as the orders denying its motions for substitution of
       judge as of right and for leave to file an amended complaint. We reverse and remand for further
       proceedings.

¶3                                       I. BACKGROUND
¶4         The purpose of the Act is to eradicate municipal blight by redeveloping blighted areas.
       People ex rel. City of Canton v. Crouch, 79 Ill. 2d 356, 360 (1980). The Act authorizes the
       passage of an ordinance designating a redevelopment project area and approving a
       redevelopment plan. Crouch, 79 Ill. 2d at 360. Once such an ordinance is adopted, a
       municipality is granted numerous powers to carry the plan into effect, including incurring

             1
             East Dundee added Wal-Mart Real Estate Business Trust to the second lawsuit. We refer to the
       Wal-Mart defendants collectively as “Wal-Mart.”
           2
             Section 11-74.4-3(q)(13) requires the municipality’s “reasonable finding” that the store’s closing
       is beyond the control of the retailer, in that the store’s location contained inadequate space, had
       become economically obsolete, or was no longer a viable location for the retailer. 65 ILCS
       5/11-74.4-3(q)(13) (West 2014).
           3
             East Dundee initially sued the Wal-Mart entities as respondents in discovery. Wal-Mart was
       converted to a named defendant on its own motion.

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     redevelopment costs. Crouch, 79 Ill. 2d at 360. Relevant here, section 11-74.4-3(q)(13)
     provides that redevelopment costs may not include costs that would provide “direct financial
     support” to a retail entity that is commencing operations in the redevelopment project area
     while simultaneously terminating operations at another location within 10 miles of the
     redevelopment project area but outside the boundaries of the municipality. 65 ILCS
     5/11-74.4-3(q)(13) (West 2014). An exception to the 10-mile prohibition exists if closing the
     operation is for reasons beyond the retailer’s control, as documented by the retailer. For the
     exception to apply, the municipality must make a reasonable finding that the current location
     contained inadequate space, had become economically obsolete, or was no longer a viable
     location for the retailer. 65 ILCS 5/11-74.4-3(q)(13) (West 2014).
¶5       East Dundee’s April 6, 2015, complaint for declaratory and injunctive relief alleged as
     follows. East Dundee and Carpentersville share a border. Wal-Mart has operated a retail store
     in East Dundee within 1.8 miles of the proposed Carpentersville location. Wal-Mart had
     determined that the East Dundee store was not inadequate or economically obsolete, and East
     Dundee was willing to assist Wal-Mart in expanding the East Dundee store. On May 1, 2012,
     Carpentersville approved a “Route 25 Redevelopment Plan” in accordance with the Act. The
     Carpentersville redevelopment project area is blighted. In August 2012, Wal-Mart informed
     East Dundee that it was closing the East Dundee store in order to relocate to the Carpentersville
     redevelopment project area. Wal-Mart never documented that closing the East Dundee store
     was for reasons beyond its control. Wal-Mart applied to Carpentersville for a $4.3 million
     reimbursement related to acquiring land and constructing the new store, indicating that it
     would not build the Carpentersville store unless it received the reimbursement. Carpentersville
     unreasonably approved Wal-Mart’s application.
¶6       East Dundee asserted that it was entitled to declaratory and injunctive relief, because the
     closure of the East Dundee Wal-Mart store would cause “significant economic and social
     damages” to East Dundee. Specifically, East Dundee alleged that it would lose sales tax
     revenues and property tax receipts.
¶7       The matter was assigned to the same judge who presided in East Dundee I. On April 28,
     2015, East Dundee filed a motion for substitution of judge as of right pursuant to section
     2-1001(a)(2)(ii) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2)(ii) (West
     2014)). The motion alleged that the trial court had not ruled on any substantive issue in the
     case. On May 1, 2015, Carpentersville4 filed its opposition to the motion, arguing that the
     instant complaint was a refiling of the previous lawsuit. Carpentersville relied on the trial
     court’s order that involuntarily dismissed the previous suit, which stated that “the [a]mended
     [c]omplaint [was] dismissed subject to being refiled in the event” that the matter became ripe.
     Carpentersville contended that the court in the previous suit made substantive rulings when it
     denied East Dundee’s request for a temporary restraining order and dismissed the suit. On June
     17, 2015, the court denied East Dundee’s motion for substitution of judge.
¶8       On April 29, 2015, Wal-Mart, now a party defendant, filed a motion to dismiss the
     complaint pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2014)).
     Wal-Mart asserted that the complaint should be dismissed pursuant to section 2-615 of the
     Code (735 ILCS 5/2-615 (West 2014)), because the Act does not give East Dundee a private
     right of action. Wal-Mart also asserted that the complaint should be dismissed pursuant to

        4
         Wal-Mart had not yet been converted to a defendant.

                                                 -3-
       section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2014)), because East Dundee
       lacked standing to sue to invalidate Carpentersville’s approval of Wal-Mart’s reimbursement
       application. Carpentersville joined in the section 2-619(a)(9) motion. On September 29, 2015,
       the court entered a written order finding that East Dundee lacked standing. The court did not
       reach the private-right-of-action issue. East Dundee filed a timely appeal.

¶9                                             II. ANALYSIS
¶ 10        East Dundee first contends that the court erred in denying its motion for substitution of
       judge as a matter of right. Section 2-1001(a)(2)(ii) of the Code provides that a party is entitled
       to one substitution of judge without cause, as a matter of right, where it is presented before trial
       or hearing begins and before the judge to whom it is presented has ruled on any substantial
       issue in the case. 735 ILCS 5/2-1001(a)(2)(ii) (West 2014). The right to a substitution of judge
       under this section is absolute. Chicago Transparent Products, Inc. v. American National Bank
       & Trust Co. of Chicago, 337 Ill. App. 3d 931, 942-43 (2002). The provisions of the statute are
       to be liberally construed, and where a party meets the statutory requirements, the trial court has
       no discretion to deny the request, unless it is shown that the motion was made to delay or avoid
       trial. Sahoury v. Moses, 308 Ill. App. 3d 413, 414 (1999). Because the trial court has no
       discretion to deny a proper motion for substitution of judge as of right, the appellate court
       reviews such a ruling de novo. Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 350
       (1999). Further, our review should lean toward favoring, rather than defeating, a request for
       substitution of judge. Rodisch, 309 Ill. App. 3d at 350.
¶ 11        East Dundee argues that the motion for substitution was timely and that it was brought
       before the court made any substantial ruling in the case. Indeed, defendants5 do not object that
       the motion was untimely. However, they assert that the court made substantial rulings in the
       previous case. Defendants view the 2015 complaint as a continuation of the previous litigation
       for purposes of the substitution-of-judge statute. They rely on the court’s August 30, 2013,
       order that “[t]he amended complaint [was] dismissed subject to being refiled.” Defendants
       argue that, because the previous complaint and the 2015 complaint concerned the same cause
       of action, the 2015 pleading was a refiling, giving the court discretion to deny the motion for
       substitution of judge.
¶ 12        The issue is whether Bowman v. Ottney, 2015 IL 119000, upon which defendants rely, is
       dispositive. In Bowman, our supreme court construed section 2-1001(a)(2)(ii) of the Code and
       its effect in relation to the voluntary dismissal and refiling provisions of the Code. Bowman,
       2015 IL 119000, ¶ 8. In Bowman, the plaintiff voluntarily dismissed her complaint pursuant to
       section 2-1009(a) of the Code (735 ILCS 5/2-1009(a) (West 2014)) after the court made
       substantial rulings in her medical malpractice case, but before trial. Bowman, 2015 IL 119000,
       ¶ 3. Four months later, the plaintiff refiled the complaint, asserting the identical claim, in
       accordance with section 13-217 of the Code (735 ILCS 5/13-217 (West 2014) (allowing the
       refiling of a voluntarily dismissed complaint within one year)). The second complaint was
       docketed under a new number but was assigned to the same judge who presided over the first
       proceeding. Bowman, 2015 IL 119000, ¶ 3. The plaintiff immediately filed a motion for
       substitution of judge as of right, and the defendant objected on the ground that it was untimely
       because the judge had made substantial rulings on the prior complaint. Bowman, 2015 IL

          5
           Wal-Mart adopted Carpentersville’s arguments on appeal.

                                                    -4-
       119000, ¶ 3. The trial court denied the motion for substitution of judge but certified the
       question of whether a trial judge has discretion to deny a motion for substitution of judge as of
       right where the case was previously dismissed pursuant to section 2-1009 of the Code and then
       was refiled. Bowman, 2015 IL 119000, ¶ 4. The appellate court answered that question in the
       affirmative. Bowman, 2015 IL 119000, ¶ 5 (citing Bowman v. Ottney, 2015 IL App (5th)
       140215).
¶ 13       In Bowman, our supreme court emphasized that it was considering only the narrow
       question that was certified to the appellate court, namely, the effect of section 2-1001(a)(2)(ii)
       in relation to the voluntary dismissal and refiling provisions of the Code. Bowman, 2015 IL
       119000, ¶ 8. The court held that the voluntary dismissal and refiling of a cause of action does
       not “reset the clock” with respect to the substitution of a judge who previously made
       substantive rulings in the prior proceeding. Bowman, 2015 IL 119000, ¶ 21. The court pointed
       out that the plaintiff had an absolute right to a substitution of judge in the first proceeding but
       failed to use it before the judge made a substantive ruling. Bowman, 2015 IL 119000, ¶ 25. The
       court stated that the plaintiff could not use the voluntary dismissal and refiling provisions to
       accomplish in the second suit what she was precluded from doing in the earlier suit. Bowman,
       2015 IL 119000, ¶ 25.
¶ 14       Our supreme court had not decided Bowman when Carpentersville argued the issue to the
       court below. However, Carpentersville relied, inter alia, on the appellate court’s decision in
       Bowman. In this appeal, defendants note that our supreme court affirmed the appellate court in
       Bowman, and they argue that this case is indistinguishable because East Dundee’s 2015
       complaint embodied the same cause of action as its earlier complaint.
¶ 15       Bowman is inapplicable to the facts in the present case. As noted above, our supreme court
       decided a narrow issue involving the relationship between section 2-1001(a)(2)(ii) and the
       sections of the Code governing voluntary dismissals and refiling. The holding in Bowman is
       necessarily confined to its facts, because the scope of review was limited to the question
       certified by the trial court. See Hudkins v. Egan, 364 Ill. App. 3d 587, 590 (2006) (the scope of
       review in an interlocutory appeal under Rule 308 is ordinarily limited to the question certified
       by the trial court).
¶ 16       Furthermore, in Bowman, the court’s decision hinged on the fact that the plaintiff had
       control over the procedural posture of the case. “[The plaintiff] cannot use the voluntary
       dismissal and refiling provisions to accomplish in the 2013 suit what she was precluded from
       doing in the 2009 suit.” Bowman, 2015 IL 119000, ¶ 25. The supreme court all but accused the
       plaintiff of gamesmanship, where she voluntarily dismissed her complaint after four years of
       rulings by the trial court only to refile the same complaint four months later. The court
       observed: “This is precisely the type of procedural maneuvering that section 2-1001 is
       designed to prevent.” Bowman, 2015 IL 119000, ¶ 25.
¶ 17       In contrast, East Dundee’s previous complaint was involuntarily dismissed. East Dundee
       could not, and did not, use the refiling provisions of the Code. Section 13-217 gives a plaintiff
       who has taken a voluntary dismissal the right to refile the cause of action within one year.
       Fiorito v. Bellocchio, 2013 IL App (1st) 121505, ¶ 10. Section 13-217 revives a plaintiff’s
       previously filed complaint, where no adjudication on the merits has been obtained. Fiorito,
       2013 IL App (1st) 121505, ¶ 10. Here, East Dundee’s previous complaint was dismissed as a
       result of a substantive legal deficiency. East Dundee I, 2014 IL App (2d) 131006-U, ¶ 24. The
       dismissal of a complaint for failure to state a cause of action is an adjudication on the merits.

                                                    -5-
       Doe v. Gleicher, 393 Ill. App. 3d 31, 36 (2009). Accordingly, East Dundee was entitled to a
       substitution of judge as of right.
¶ 18       East Dundee cites the heretofore well-established rule that an order is void if it is entered
       after a motion for substitution of judge is improperly denied. See Aussieker v. City of
       Bloomington, 355 Ill. App. 3d 498, 500-01 (2005). However, the voidness of such orders is
       called into question by LVNV Funding, LLC v. Trice, 2015 IL 116129, ¶ 27, where our
       supreme court stated that a judgment is void only if the court lacks jurisdiction. Where the
       court possesses jurisdiction, the failure to comply with a statutory requirement or prerequisite
       does not result in a void order. LVNV Funding, LLC, 2015 IL 116129, ¶ 37. Nevertheless, such
       an order is unauthorized and must be vacated.
¶ 19       Defendants posit that we can affirm the dismissal of the complaint under Illinois Supreme
       Court Rule 366(a)(5) (eff. Feb. 1, 1994), which gives the appellate court authority to “enter any
       judgment and make any order that ought to have been given or made.” Defendants do not
       elaborate on how Rule 366(a)(5) enables us to affirm an order that was entered without
       authority, and we find no such power in the rule. Accordingly, we vacate the order dismissing
       the complaint, reverse the order denying East Dundee’s motion for substitution of judge as of
       right, and remand this matter with directions to grant the motion for substitution of judge.

¶ 20      Vacated in part and reversed in part; cause remanded with directions.




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