                                          2018 IL App (1st) 170357
                                                                                  FIRST DISTRICT,
                                                                                  SECOND DIVISION
                                                                                  September 28, 2018

                                                No. 1-17-0357

     PATRICIA DOYLE and BRIAN DOYLE,                )     Appeal from the
                                                    )     Circuit Court of
                             Plaintiffs-Appellants, )     Cook County, Illinois.
                                                    )
     v.                                             )     No. 11 L 13684
                                                    )
     THE VILLAGE OF TINLEY PARK and MALONE          )     Honorable
     & MOLONEY, INC.,                               )     Eileen O’Neill Burke and
                                                    )     James E. Snyder,
                             Defendants-Appellees.  )     Judges Presiding.
     _____________________________________________________________________________

            PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
            Justices Pucinski and Hyman concurred in the judgment and opinion.

                                                 OPINION

¶1          Plaintiffs Patricia and Brian Doyle purchased a home in a Tinley Park subdivision in

     2004. Several years later, the Doyles began to experience drainage problems on their property

     which allegedly caused structural damage to the home. The Doyles brought a negligence suit

     against the developer of the subdivision, Malone & Moloney, Inc. (Malone), 1 and the Village of

     Tinley Park. The Doyles alleged that Malone failed to install a properly working storm drain

     system, in breach of an annexation agreement entered into by Malone and the village in 1990.

     The Doyles further alleged that the damage was exacerbated by the village’s delay in addressing

     the drainage problem.

¶2          The trial court dismissed the claims against Malone, finding that the Doyles lacked

     standing to sue under the annexation agreement either as successor owners of the property or as


            1
            Although the complaint in this case listed the company as “Malone & Maloney, Inc.,” the
     company’s entry of appearance in this case corrects that spelling to “Malone & Moloney, Inc.”
     No. 1-17-0357


     third-party beneficiaries. The trial court also granted summary judgment to the village, finding

     that it was immune from suit under section 2-201 of the Local Governmental and Governmental

     Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201 (West 2012)), which

     immunizes public employees “serving in a position involving the determination of policy or the

     exercise of discretion” for their actions “in determining policy when acting in the exercise of

     such discretion.” The Doyles now appeal. We agree with the trial court and affirm.

¶3                                           BACKGROUND

¶4          Malone is the developer of the Brookside Glen subdivision in Tinley Park. On January

     11, 1990, Malone entered into an annexation agreement with the village regarding development

     of the subdivision. The agreement defines the property subject to the agreement as follows:

                     “The Subject Property is generally bounded on the north by 191st Street, on the

            east by Harlem Avenue, on the west generally by 88th Avenue but extending as far west

            as 92nd Avenue, and on the south by several different housing developments. The

            Subject Property contains approximately 828 acres and is contiguous with the Village of

            Tinley Park.”

     In relevant part, Malone agreed to design and construct storm sewers so that the subdivision’s

     storm water runoff would be retained within a central detention system.

¶5          In 2004, the Doyles contracted with Malone to build a residence at 7606 Bayfield Drive

     in the Brookside Glen subdivision. The contract contained a limited warranty providing that

     Malone would fix any defects due to faulty construction brought to its attention within a year

     from the date of closing. The sale closed on May 30, 2004, and the Doyles have lived at the

     house since its completion.




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¶6           Sometime in 2007 or 2008, the Doyles began to notice a problem with their sump pump:

     during times of rain or heavy snow, they could hear it ejecting water every few seconds, at a

     higher rate than their neighbors’ pumps. Although the Doyles never had water in their basement,

     they were concerned as to why their pump was overactive. The pump stopped working in July

     2008, and the Doyles replaced it, but the issue persisted.

¶7           Patricia Doyle first contacted the village about the problem in fall 2009, via a phone call

     to the Department of Public Works. She was told to have a plumber check the sump pump and

     sprinkler system for leaks. After two plumbers found no leaks, the Doyles filed a drainage

     complaint with the village on March 23, 2010. At this time, the Doyles had not yet observed any

     structural damage to their home, but there was serious erosion around the storm drain on the west

     side of the house: the surrounding dirt had caved in, and the ground in the area had dropped by

     several feet.

¶8           On April 9, 2010, a public works crew was dispatched to the Doyles’ house. The crew

     placed stone, soil, and grass seed around the storm drain in the area of the cave-in but did not

     take further measures to remedy the cause of the sinkhole. The crew was sent at the direction of

     Mary Dobyns, a foreman for the village’s Streets Department. Dobyns later explained that

     although she assigns crews to jobs, what they do “is their call once they get there.” If a crew

     believes that a problem is beyond its expertise, it is supposed to call Dobyns. The April 9 crew

     did not call her.

¶9           Over the next several months, Patricia called the Department of Public Works several

     more times to inform them that their sump pump was “not shutting off during rain.” By

     September 30, 2010, Patricia observed that the rim of the storm drain was collapsing, and all of

     the soil and rock added in April had fallen into the bottom of the drain. She called the



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       Department of Public Works again, stating that the sinkhole on her property was dangerous and

       that additional work needed to be done. She was told that Dobyns was on medical leave, but a

       work order would be submitted for the property. On November 15, 2010, a second work crew

       came to the house. Patricia observed them placing more stone around the storm drain as they did

       in April.

¶ 10          Around December 2010, the Doyles first noticed structural damage to their home: the

       floor was slanted on the ground level and in the basement, and the support beams in the

       basement were, in Patricia’s words, “heaving up.”

¶ 11          On February 18, 2011, Patricia sent an e-mail regarding the damage to Kelly Borak, the

       superintendent of the Streets Department. In response, the village sent a third work crew on

       March 2, 2011. The crew performed a dye test by pouring dye into the storm drain. Within 20 to

       30 minutes, the dye appeared in the Doyles’ sump pump pit, evidencing that the storm pipe was

       leaking water. The next day, March 3, the work crew returned to the house and performed a

       camera test by sending a robot with a camera attachment into the storm drain. The camera

       footage confirmed that the pipe was compromised in several locations.

¶ 12          Later that day, Patricia e-mailed Borak to discuss these findings. Borak apologized to

       Patricia for how long it took to identify the cause of the drainage problem, saying, “[T]he list of

       drainage complaints is more than we can accommodate and we do not have the manpower to

       complete the drainage complaints in a timely manner.” She assured Patricia that the village was

       working with the board of trustees to remedy the problem.

¶ 13          After discussing the matter with Dobyns, Borak determined that the village could not fix

       the damaged pipe on its own. Dobyns was in charge of soliciting bids from contractors. On

       March 31, 2011, a contractor hired by the village installed a sleeve into the storm pipe on the



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       west side of the Doyles’ property to repair the leak. After installing the sleeve, the contractor

       dumped excess water into the storm drain down the street and then left. Minutes later, Patricia

       heard her sump pump starting to operate. She called the Department of Public Works and told

       them that the problem was not fixed.

¶ 14          Further tests by the village on April 11 and 12 showed that the storm pipe under the

       street—a different pipe than was repaired on March 31—was also leaking. In an e-mail on April

       25, Borak advised Patricia: “I have been collecting prices to repair the storm pipe in the street.

       After we have 3 comparable quotes then it must be presented to the Village Manager for

       approval. This will take some time.”

¶ 15          On May 2, 2011, Patricia sent an e-mail to Mayor Zabrocki expressing frustration that the

       problem had not yet been fixed. In response, several village officials, including Trustee Thomas

       Staunton, came to the Doyles’ house on July 1 to view the damage and discuss solutions.

       According to Patricia, Staunton said that the village would not repair the storm pipe under the

       street because it was “insignificant and not worth [the village’s] while.” He also told the Doyles,

       “Go ahead and sue us. Tinley Park has no money and we are protected by tort immunity.”

¶ 16          Notwithstanding Staunton’s words, the village hired a second contractor to repair the

       storm pipe under the street on July 27, 2011. This repair was more extensive than the March 31

       repair in that it involved removal and replacement of the pipe. After this repair, the Doyles

       experienced no further problems with their sump pump.

¶ 17          The Doyles filed suit against Malone and the village on December 27, 2011, seeking

       compensation for the damage to their property. In count V of their third amended complaint, the

       Doyles alleged that Malone breached its 2004 contract with them by failing to build their

       residence “in a good workmanlike manner.” In counts III and IV, the Doyles alleged that Malone



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       breached its duty to install a sewage system that was adequate to properly drain water from

       properties in the subdivision, in violation of the 1990 annexation agreement between Malone and

       the village. The Doyles argued that they had standing to enforce the annexation agreement based

       upon the agreement’s successor liability clause, which provided:

                       “This Agreement shall be binding upon and inure to the benefit of the parties

              hereto, successor owners of record of the Subject Property, assignees, lessees and upon

              any successor municipal authorities of said Village and successor municipalities ***.”

       The Doyles claimed that they could enforce the agreement as successor owners of a residence in

       the Brookside Glen subdivision. Alternately, the Doyles argued that they were third-party

       beneficiaries of the agreement. 2

¶ 18          As for the village, the Doyles alleged that the damage to their home was exacerbated by

       the village’s failure to deal with the drainage problem in a timely or appropriate manner. The

       Doyles filed their drainage complaint with the village on March 23, 2010. Although work crews

       visited the house on April 9 and November 15, they merely filled in the sinkhole without

       attempting to ascertain its cause. By April 12, 2011, the village was aware that the storm pipe

       under the street was compromised, but it did not fix the pipe until July 27.

¶ 19          The Doyles alleged that, due to defendants’ negligence, large quantities of water

       accumulated beneath the base slab of their house, cracking the slab, pushing up the columns, and

       causing other structural damage. The water also created a dangerous sinkhole on the property.

       The Doyles alleged that their property was not salable in its damaged condition.

¶ 20          Malone moved to dismiss counts III and IV pursuant to section 2-619 of the Code of

       Civil Procedure (735 ILCS 5/2-619 (West 2012)), arguing that the Doyles lacked standing to sue

       under the annexation agreement. The trial court granted Malone’s motion on September 9, 2015,
              2
               The Doyles also raised various other claims against Malone that are not relevant to this appeal.
                                                          -6­
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       finding that, although the annexation agreement provided for successor liability, the Doyles were

       successors to Malone and not the village, so they could not sue Malone for its alleged breach of

       the agreement. The court also held there was no evidence that subsequent purchasers of homes,

       such as the Doyles, were intended third-party beneficiaries of the annexation agreement.

¶ 21          Malone then moved for summary judgment on count V, arguing that (i) the defective

       storm pipes that damaged the Doyles’ house were beyond the scope of the 2004 contract between

       Malone and the Doyles; (ii) there was no evidence that Malone’s construction of the house was

       faulty; and (iii) in any event, the Doyles did not notice any damage to their residence until well

       after the expiration of the one-year warranty. The trial court granted Malone’s motion for

       summary judgment, finding that the Doyles’ allegations of faulty construction were “conclusory

       in nature.”

¶ 22          The village also moved for summary judgment, arguing that it was entitled to

       discretionary tort immunity under section 2-201 of the Tort Immunity Act (745 ILCS 10/2-201

       (West 2012)) because the means and methods by which its employees address drainage

       complaints from residents involve the exercise of discretion. The trial court initially denied the

       village’s motion, finding that whether the village’s acts were ministerial or discretionary was a

       question of fact. The village moved for reconsideration, and on September 14, 2016, the trial

       court granted the motion and entered summary judgment for the village “for reasons stated on

       the record.”

¶ 23          The Doyles now appeal (i) the trial court’s dismissal of counts III and IV against Malone

       and (ii) the court’s grant of summary judgment for the village.

¶ 24                                               ANALYSIS

¶ 25                         Standing to Sue to Enforce the Annexation Agreement



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¶ 26          As discussed, the Doyles’ claims against Malone in this appeal are premised on Malone’s

       alleged breach of the annexation agreement that Malone and the village executed in 1990. The

       Doyles argue that they had standing to bring such an action, both as successor owners of the

       property and as intended third-party beneficiaries of the contract. We consider these claims in

       turn, accepting as true all well-pleaded facts in the complaint and construing the pleadings in the

       light most favorable to the Doyles, as is appropriate in reviewing a section 2-619 dismissal.

       Sandholm v. Kuecker, 2012 IL 111443, ¶ 55.

¶ 27          Initially, we observe that the Doyles do not appeal the trial court’s grant of summary

       judgment on count V, regarding their 2004 contract with Malone. Nor would any such appeal be

       meritorious. As the trial court found, there was no evidence that Malone’s construction of the

       Doyles’ house was faulty. Rather, the evidence showed that the Doyles’ house was damaged by

       faulty storm drains, which were outside the scope of the 2004 contract. Thus, the Doyles’ claims

       depend on their ability to enforce Malone’s obligations under the annexation agreement.

¶ 28          By definition, an annexation agreement is a contract between a municipality and an

       owner of land in unincorporated territory. 65 ILCS 5/11-15.1-1 (West 2012). The contract

       annexes the land to the municipality, thereby subjecting it to the municipality’s ordinances,

       control, and jurisdiction. Id. § 11-15.1-2. The Illinois Municipal Code provides that any

       annexation agreement “shall be binding upon the successor owners of record of the land which is

       the subject of the agreement and upon successor municipal authorities of the municipality and

       successor municipalities. Any party to such agreement may by civil action *** enforce and

       compel performance of the agreement.” Id. § 11-15.1-4. Additionally, the agreement itself

       provides for successor liability in section 16, “Binding Effect and Term and Covenants Running

       with the Land.” That section provides, in relevant part: “This Agreement shall be binding upon



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        and inure to the benefit of the parties hereto, successor owners of record of the Subject Property,

        assignees, lessees and upon any successor municipal authorities of said Village and successor

        municipalities.”

¶ 29           The Doyles argue that they, as purchasers of an individual lot within the Brookside Glen

        subdivision, are “successor owners of record” of the subdivision, under both the 1990 annexation

        agreement and section 11-15.1-4 of the Illinois Municipal Code (65 ILCS 5/11-15.1-4 (West

        2012)). This assertion underlies both their claim to successor liability and their third-party

        beneficiary claim.

¶ 30           We disagree with this fundamental assertion. In interpreting the annexation agreement,

        our primary goal is to effectuate the parties’ intent by interpreting the contract as a whole. Joyce

        v. DLA Piper Rudnick Gray Cary LLP, 382 Ill. App. 3d 632, 636-37 (2008). Moreover, we will

        construe the contract reasonably to avoid absurd results. Suburban Auto Rebuilders, Inc. v.

        Associated Tile Dealers Warehouse, Inc., 388 Ill. App. 3d 81, 92 (2009). Initially, we do not find

        that the wording of the annexation agreement supports the Doyles’ construction. The agreement

        defines the “Subject Property” as an 828-acre parcel of land contiguous with the village—i.e.,

        the entire subdivision. If the drafters of the agreement intended to confer successor status upon

        each and every purchaser of a lot within the subdivision (as opposed to, say, a developer who

        purchased the entire subdivision property from Malone), the agreement would have said

        “successor owners of record of the Subject Property or any portion thereof.”

¶ 31	          Likewise, the statute refers to “successor owners of record of the land which is the

        subject of the agreement” (65 ILCS 5/11-15.1-4 (West 2012)), but makes no reference to those

        who purchase only a small portion of that land. The Doyles do not cite any cases where




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       homeowners who purchase a single lot from a larger annexed territory are considered “successor

       owners of record” under the statute, nor does our research disclose any.

¶ 32           Moreover, if we adopted the Doyles’ interpretation of the annexation agreement and the

       statute, then each and every homeowner in the subdivision would succeed to Malone’s interest in

       the property. Humphrey Property Group, L.L.C. v. Village of Frankfort, 392 Ill. App. 3d 611,

       614 (2009) (with respect to an annexation agreement, a successive purchaser of land stands in the

       place of the original landowner who made the contract with the municipality). As successors, the

       homeowners would stand in Malone’s shoes and be bound to Malone’s obligations—and, as a

       result, the village could sue the Doyles, or any other homeowners in the subdivision, for failing

       to properly design and construct storm sewers in accordance with the annexation agreement. See

       Village of Orland Park v. First Federal Savings & Loan Ass’n of Chicago, 135 Ill. App. 3d 520,

       526 (1985) (because annexation agreement was binding upon successor owner of property,

       village could sue successor owner to enforce its provisions). We decline to find that either the

       parties to the contract or the legislature intended such an absurd result. Accordingly, we find that

       the Doyles lack standing to bring an action against Malone as successor owners of the property. 3

¶ 33           Because the Doyles cannot be considered “successor owners of record” of the subject

       property, their third-party beneficiary argument fails as well. Under Illinois law, not every third

       party who benefits from a contract can sue for its breach. Carlson v. Rehabilitation Institute of

       Chicago, 2016 IL App (1st) 143853, ¶ 14. Third parties have rights under a contract only if they

       are intended beneficiaries; that is, the contracting parties must have intended to directly benefit

       the third parties by the performance of the contract. Id.; F.H. Paschen/S.N. Nielsen, Inc. v.


               3
                We additionally observe that even if the Doyles could be considered successor owners of the
       property, they would succeed to Malone’s interest in the annexation agreement, not to the village’s. See
       Humphrey Property Group, 392 Ill. App. 3d at 614. As such, the Doyles could not sue Malone (in whose
       shoes they would be standing) for breach of the annexation agreement.
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       Burnham Station, L.L.C, 372 Ill. App. 3d 89, 96 (2007). By contrast, an incidental beneficiary

       has no rights under a contract and lacks standing to sue to enforce its terms. Carlson, 2016 IL

       App (1st) 143853, ¶¶ 14-15. In determining whether a third-party beneficiary is intended or

       incidental, courts consider the language of the contract and the circumstances surrounding its

       execution. Id. ¶ 14. Because parties typically enter into contracts to benefit themselves rather

       than third parties, there is a presumption against intended beneficiary status that “can only be

       overcome by an implication so strong as to be practically an express declaration.” Estate of

       Willis v. Kiferbaum Construction Corp., 357 Ill. App. 3d 1002, 1008 (2005); see also Carlson,

       2016 IL App (1st) 143853, ¶ 16.

¶ 34          No such implication is present in the annexation agreement. As discussed, individual

       homeowners such as the Doyles are not “successor owners of record of the Subject Property”

       within the meaning of the annexation agreement. Thus, there is no expressed intent to benefit

       such individual homeowners. Although there is no question that the parties were aware that the

       storm drainage system would benefit homeowners, this is insufficient under Illinois law to afford

       homeowners intended third-party beneficiary status. See Altevogt v. Brinkoetter, 85 Ill. 2d 44, 56

       (1981) (builder’s knowledge that a third party would occupy the house did not establish that

       occupants were intended beneficiaries); 155 Harbor Drive Condominium Ass’n v. Harbor Point

       Inc., 209 Ill. App. 3d 631, 647 (1991) (individual unit owners were not intended beneficiaries of

       construction contracts even though “[t]here is no question that the parties *** were aware that

       the building was being built for subsequent purchasers”).

¶ 35          Accordingly, we affirm the trial court’s dismissal of counts III and IV of the Doyles’

       complaint.

¶ 36                                             Tort Immunity



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¶ 37             The Doyles next argue that the trial court erred in granting summary judgment to the

       village on the basis of discretionary tort immunity. We review the grant of summary judgment

       de novo (Williams v. Manchester, 228 Ill. 2d 404, 417 (2008)), keeping in mind that summary

       judgment is appropriate only where “there is no genuine issue as to any material fact and *** the

       moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2016).

       In order to prevail, the nonmoving parties must present some evidence that would arguably

       entitle them to recover at trial. Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456, 472

       (2010).

¶ 38             Section 2-201 of the Tort Immunity Act provides: “Except as otherwise provided by

       Statute, a public employee serving in a position involving the determination of policy or the

       exercise of discretion is not liable for an injury resulting from his act or omission in determining

       policy when acting in the exercise of such discretion even though abused.” 745 ILCS 10/2-201

       (West 2012). For an employee to enjoy immunity under this section, the employee’s allegedly

       tortious action must result from both “the determination of policy” and “the exercise of

       discretion.” Id.; see Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 341

       (1998); Albers v. Breen, 346 Ill. App. 3d 799, 808 (2004). The Doyles argue that the village’s

       failure to remedy the sinkhole in a timely manner did not meet either of these criteria.

¶ 39             For purposes of section 2-201, policy determinations are decisions that require a

       governmental employee “ ‘to balance competing interests and to make a judgment call as to what

       solution will best serve each of those interests.’ ” Harinek, 181 Ill. 2d at 342 (quoting West v.

       Kirkham, 147 Ill. 2d 1, 11 (1992)). Discretionary acts “involve the exercise of personal

       deliberation and judgment in deciding whether to perform a particular act, or how and in what

       manner that act should be performed.” Wrobel v. City of Chicago, 318 Ill. App. 3d 390, 395



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       (2000). By contrast, ministerial acts (which do not enjoy immunity) are performed in a

       prescribed manner without reference to the official’s discretion. Id. at 396; see also In re

       Chicago Flood Litigation, 176 Ill. 2d 179, 194 (1997) (ministerial acts are “absolute, certain and

       imperative, involving merely the execution of a set task” (internal quotation marks omitted)).

¶ 40           The Doyles concede that the village’s initial decision to repair the sinkhole, made in

       response to the Doyles’ drainage complaint on March 23, 2010, was both an exercise of

       discretion and a determination of policy. But they argue that all of the village’s actions thereafter

       were “merely the execution of a set task” (internal quotation marks omitted) (Chicago Flood

       Litigation, 176 Ill. 2d at 194) and not entitled to immunity. We disagree.

¶ 41           The record shows that the village sent work crews to the Doyles’ house on April 9, 2010,

       and on November 15, 2010. On both of those occasions, the crew placed stone and soil around

       the storm drain but, according to Patricia, did not test the integrity of the storm pipes by

       conducting a dye test or a camera test. These remedial measures were discretionary in nature:

       Dobyns explained that the workers’ actions to address the problem were “their call once they get

       there.” Here, the workers decided that it was sufficient to fill in the sinkhole. The Doyles argue

       that they should have performed tests to determine the cause of the problem. But by criticizing

       the workers’ judgment—effectively arguing that they made the “wrong call”—the Doyles

       inadvertently highlight the discretionary nature of the remedial actions.

¶ 42           In this regard, this case is analogous to Wrobel, 318 Ill. App. 3d 390, in which the court

       held that city workers’ conduct in repairing potholes involved the exercise of discretion. A driver

       struck a pothole, lost control of his vehicle, and veered into traffic, injuring plaintiffs. Plaintiffs

       sued the city for negligent maintenance of the road. It was undisputed that four days before the

       accident, city workers had repaired potholes on that block. Wrobel held that the city was immune



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       from suit. The court explained that workers repairing potholes “enjoy discretion in determining

       how much asphalt and moisture should be actually extracted [from each pothole] and whether

       that amount is indeed adequate to ensure a durable patch.” Id. at 395. Likewise, the record in this

       case shows that the work crews sent to the Doyles’ house had discretion in determining how best

       to deal with the drainage problem.

¶ 43          In response to the Doyles’ continued concerns, the village sent a third work crew to their

       house on March 2 and 3, 2011, and testing determined that the storm pipe on their property was

       leaking in several locations. The record shows that fixing the pipe was not “merely the execution

       of a set task” (internal quotation marks omitted) (Chicago Flood Litigation, 176 Ill. 2d at 194),

       but required “the exercise of personal deliberation and judgment” (Wrobel, 318 Ill. App. 3d at

       395) by village officials. Borak discussed the problem with Dobyns and determined that the

       village did not have the resources to fix the pipe on its own. Dobyns then began the process of

       soliciting bids from outside contractors. Eventually a contractor was hired to fix the pipe on the

       Doyles’ property—but it was discovered that the pipe under the street was also leaking,

       necessitating a new round of decisionmaking and bidding from contractors. Borak stated as much

       in her April 25, 2011, e-mail to Patricia: “I have been collecting prices to repair the storm pipe in

       the street. After we have 3 comparable quotes then it must be presented to the Village Manager

       for approval. This will take some time.”

¶ 44          We find that the village employed discretion at every step of the repair process, from the

       first work crew that visited the Doyles’ house and had to decide what to do about the sinkhole, to

       the village manager who decided to approve the street pipe repair.

¶ 45          Moreover, the record demonstrates that village officials were engaged in ongoing policy

       determinations regarding the allocation of village funds and resources. In an e-mail to Patricia,



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       Borak stated, “[T]he list of drainage complaints is more than we can accommodate and we do

       not have the manpower to complete the drainage complaints in a timely manner.” In a similar

       vein, Staunton, one of the village’s trustees, told the Doyles that the village “has no money” and

       opined that fixing the leaking street pipe was “not worth [the village’s] while.” It is well

       established that deciding how best to spend limited resources is a policy determination.

¶ 46          For instance, in Nichols v. City of Chicago Heights, 2015 IL App (1st) 122994, plaintiffs’

       homes were damaged in flooding during a two-day rainstorm. They sued the city, alleging

       operational negligence of the storm sewer system. Nichols held that immunity applied to the

       city’s decisions regarding the maintenance and improvement of its sewer system. Id. ¶ 33.

       Evidence showed that the city had an ongoing sewer rehabilitation program, including dye

       testing of “ ‘high priority’ ” locations and discussion of cost-effective solutions to stay within

       budgetary constraints. Id. ¶¶ 34-38. The court concluded that “the mayor and the City were

       balancing competing interests and making continued and ongoing judgment calls as to what set

       of action would best serve those competing interests”—i.e., they were both exercising discretion

       and determining policy. Id. ¶ 39. The court further stated:

                       “We understand plaintiffs’ frustration that their homes were flooded with waste

              and we, like the trial court below, recognize that this flooding may have been avoided

              had the City’s sewers been better maintained. However, a municipality must function

              while balancing many interests, including a limited budget. Here, the City had a plan and

              was moving forward on that plan, balancing, as a municipality must, many interests.

              Even if its conduct were negligent, we would still find that it was immune from suit

              under section 2-201.” Id. ¶ 41.




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        Likewise, we are not unsympathetic to the Doyles’ frustration regarding the length of time it took


        to fix the drainage problem and the resultant damage to their home. But village officials


        exercised their judgment in utilizing the village’s limited manpower and budget, and, as a result, 


        their actions are immune from liability.


¶ 47           The Doyles nevertheless argue that the present case is analogous to Gutstein v. City of

        Evanston, 402 Ill. App. 3d 610 (2010), in which the city’s failure to perform scheduled repairs

        was held to be ministerial rather than discretionary. Gutstein tripped and fell in an unpaved alley

        abutting her property. Id. at 612. She sued the city for negligent maintenance of the alley. The

        city’s policy was to annually regrade each of its unpaved alleys, but there was no evidence the

        city did any work in the alley before Gutstein’s fall. Id. at 612, 626. Under these facts, Gutstein

        held that discretionary tort immunity did not apply. The court explained that the city’s decision

        to implement a program of repairs (the annual regrading of alleys) involved the exercise of

        discretion, but once the program was implemented, carrying out that program was a ministerial

        act, in that it was “ ‘absolute, certain and imperative, involving merely the execution of a set

        task.’ ” Id. at 625 (quoting Chicago Flood Litigation, 176 Ill. 2d at 194). The court also

        distinguished Wrobel, since there was no evidence that the regrading process required any

        “complex, location-specific determinations,” unlike the pothole repair process in Wrobel. Id. at

        627.

¶ 48	          Gutstein is readily distinguishable. Unlike the city in Gutstein, which failed to perform

        any repairs on the alley in question, the village engaged in extensive repair efforts that involved

        many complex determinations and did eventually solve the Doyles’ drainage problem. The

        Doyles criticize the manner in which these repair efforts were conducted, but, as discussed,




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       deciding how to perform the repairs involved both the exercise of discretion and the

       determination of policy, and the village is therefore immune from suit under section 2-201.

¶ 49                                            CONCLUSION

¶ 50          Because the Doyles lacked standing to enforce the annexation agreement between

       Malone and the village, we affirm the trial court’s dismissal of counts III and IV against Malone.

       We also affirm the trial court’s grant of summary judgment for the village on grounds of

       discretionary tort immunity.

¶ 51          Affirmed.




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