{ "id": 351284, "name": "THE VILLAGE OF BLOOMINGDALE, Appellant, v. CDG ENTERPRISES, INC., Appellee", "name_abbreviation": "Village of Bloomingdale v. CDG Enterprises, Inc.", "decision_date": "2001-06-21", "docket_number": "No. 89963", "first_page": "484", "last_page": "510", "citations": [ { "type": "official", "cite": "196 Ill. 2d 484" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "147 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278377 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "14" }, { "page": "6-7", "parenthetical": "declining to insert notice requirement as a \"substantial limitation on the immunity of section 3 - 104 where none exists\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0001-01" ] }, { "cite": "176 Ill. 2d 160", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544916 ], "year": 1997, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0160-01" ] }, { "cite": "314 Ill. App. 3d 210", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140137 ], "weight": 5, "pin_cites": [ { "page": "214-15" }, { "page": "215" }, { "page": "214" }, { "page": "215" }, { "page": "213-14" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/314/0210-01" ] }, { "cite": "186 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243891 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "386" }, { "page": "395" }, { "page": "394-95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0381-01" ] }, { "cite": "18 Ill. 2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328152 ], "year": 1959, "pin_cites": [ { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0011-01" ] }, { "cite": "139 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573900 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "506" }, { "page": "507" }, { "page": "507" }, { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0501-01" ] }, { "cite": "167 Ill. 2d 372", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222754 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "378" }, { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0372-01" ] }, { "cite": "171 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57332 ], "weight": 10, "year": 1996, "pin_cites": [ { "page": "386-88", "parenthetical": "finding that park district owed plaintiff a common law duty of reasonable care" }, { "page": "388" }, { "page": "388" }, { "page": "391" }, { "page": "388, 391-92" }, { "page": "391" }, { "page": "391-92" }, { "page": "393" }, { "page": "388-89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0378-01" ] }, { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "weight": 8, "year": 1997, "pin_cites": [ { "page": "192", "parenthetical": "\"governmental units are liable in tort on the same basis as private tortfeasors unless a tort immunity statute imposes conditions upon that liability\"" }, { "page": "192, 195-97" }, { "page": "196" }, { "page": "196" }, { "page": "193" }, { "page": "193-94" }, { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "145 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5595999 ], "year": 1991, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0404-01" ] }, { "cite": "181 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821401 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "338" }, { "page": "342-43" }, { "page": "347" }, { "page": "346-47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0335-01" ] }, { "cite": "138 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5576867 ], "year": 1990, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/138/0178-01" ] }, { "cite": "191 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 229719 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "508" }, { "page": "522" }, { "page": "519", "parenthetical": "reasoning that the \"legislature has the inherent authority to repeal or change the common law and may do away with all or part of it\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/191/0493-01" ] }, { "cite": "147 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278067 ], "year": 1992, "pin_cites": [ { "page": "475-76", "parenthetical": "\" 'Under the doctrine of separation of powers, courts may not legislate, rewrite or extend legislation. If the statute as enacted seems to operate in certain cases unjustly or inappropriately, the appeal must be to the General Assembly, and not to the court' \"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0467-01" ] }, { "cite": "165 Ill. 371", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3103367 ], "year": 1897, "pin_cites": [ { "page": "377-78" } ], "opinion_index": 0, "case_paths": [ "/ill/165/0371-01" ] }, { "cite": "152 Ill. 2d 533", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5603065 ], "year": 1992, "pin_cites": [ { "page": "541", "parenthetical": "\"a court construing the language of a statute will assume that the legislature did not intend to produce an absurd or unjust result\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0533-01" ] }, { "cite": "281 Ill. App. 3d 154", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150184 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "163" }, { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0154-01" ] }, { "cite": "118 Ill. App. 2d 1", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1585456 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/118/0001-01" ] }, { "cite": "190 Ill. App. 3d 859", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2517924 ], "year": 1989, "pin_cites": [ { "page": "868", "parenthetical": "recognizing corrupt or malicious motives exception to sections 2 - 103, 2 - 201, and 2 - 205" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0859-01" ] }, { "cite": "88 Ill. App. 3d 47", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3175688 ], "year": 1980, "pin_cites": [ { "page": "52", "parenthetical": "recognizing corrupt or malicious motives exception to sections 2 - 201 and 2 - 206 of the Act" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0047-01" ] }, { "cite": "168 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307252 ], "year": 1995, "pin_cites": [ { "page": "335-36, 339", "parenthetical": "Freeman, J., specially concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0312-01" ] }, { "cite": "153 Ill. 2d 473", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4738855 ], "year": 1992, "pin_cites": [ { "page": "497" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0473-01" ] }, { "cite": "69 Ill. 2d 320", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5455758 ], "year": 1977, "pin_cites": [ { "page": "334", "parenthetical": "\"The right to recover on a [quasi-contract], although phrased in contract terminology, is not based on an agreement between parties but is an obligation created by law\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0320-01" ] }, { "cite": "314 Ill. App. 3d 210", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 140137 ], "pin_cites": [ { "page": "214" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/314/0210-01" ] }, { "cite": "186 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243891 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "401-02", "parenthetical": "McMorrow, J., dissenting" }, { "page": "401-02" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/186/0381-01" ] }, { "cite": "171 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57332 ], "weight": 6, "year": 1996, "pin_cites": [ { "page": "402-08", "parenthetical": "McMorrow, J., dissenting" }, { "page": "391-92" }, { "page": "403", "parenthetical": "McMorrow, J., dissenting" }, { "page": "403-04", "parenthetical": "McMorrow, J., dissenting" }, { "page": "404", "parenthetical": "McMorrow, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/171/0378-01" ] }, { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "213-14", "parenthetical": "McMorrow, J., concurring in part and dissenting in part" }, { "page": "213-14", "parenthetical": "McMorrow, J., concurring in part and dissenting in part" }, { "page": "214" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "181 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821401 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "354", "parenthetical": "McMorrow, J., concurring in part and dissenting in part" }, { "page": "354", "parenthetical": "McMorrow, J., concurring in part and dissenting in part" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/181/0335-01" ] }, { "cite": "189 Ill. 2d 200", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1224801 ], "year": 2000, "pin_cites": [ { "page": "206" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/189/0200-01" ] } ], "analysis": { "cardinality": 1362, "char_count": 48019, "ocr_confidence": 0.778, "pagerank": { "raw": 3.922039787545746e-07, "percentile": 0.9026599620286743 }, "sha256": "0e3b7b1d28c2bb08a40c318afd3cebd87a97c4f5253fa66aa18b01f7034f1cd2", "simhash": "1:8f86855b16a454d3", "word_count": 7814 }, "last_updated": "2023-07-14T19:16:53.942400+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE VILLAGE OF BLOOMINGDALE, Appellant, v. CDG ENTERPRISES, INC., Appellee." ], "opinions": [ { "text": "JUSTICE THOMAS\ndelivered the opinion of the court:\nThis case arises from the Village of Bloomingdale\u2019s denial of a zoning petition submitted by CDG Enterprises, Inc., and presents two issues for our review. First, whether the Illinois Constitution permits imposition of the common law \u201ccorrupt or malicious motives\u201d exceptian to certain immunities afforded by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/1 \u2014 101 et seq. (West 1998)). Second, whether a claim for quasi-contract is proper under section 2 \u2014 101(a) of the Act (745 ILCS 10/2 \u2014 101(a) (West 1998)) and whether the counterplaintiff alleged sufficient facts for this court to impose a quasi-contract remedy. For the reasons set forth below, we hold that the Illinois Constitution prohibits the insertion of the common law \u201ccorrupt or malicious motives\u201d exception into the immunities provided by the Act. In addition, we hold that, though section 2 \u2014 101(a) of the Act, which preserves municipal liability for contract, does not contemplate the remedy of quasi-contract, the counter-plaintiff has failed to sufficiently assert a claim for that remedy. Accordingly, we reverse the appellate court.\nBACKGROUND\nPlaintiff, the Village of Bloomingdale (Village), sued CDG Enterprises, Inc. (CDG), in the circuit court of Du Page County, for breach of contract alleging that CDG had not paid for services the Village had provided in reviewing its petition for rezoning and site plan approval. CDG, as counterplaintiff, answered and filed two counterclaims, one for tortious interference with business expectancy and another for recovery under a quasi-contract theory. These counterclaims are at issue in this appeal.\nIn support of both counts, CDG alleged the following facts, which we will take as true for purposes of this appeal on the Village\u2019s motion to dismiss. See Fireman\u2019s Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill. 2d 160, 161 (1997). CDG was the contract purchaser of five parcels of land adjacent to the Village of Bloomingdale. In March 1995, CDG petitioned the Village\u2019s planning commission to annex the five parcels into the Village and rezone them so that CDG could build a subdivision. CDG\u2019s representatives met with the Village\u2019s land planner and other officials, including the Village mayor, who allegedly told CDG that the project would be approved. Between April and October 1995, CDG repeatedly appeared before the Village planning commission for public hearings on its petition.\nCDG further stated that, in June or July 1995, the Village allegedly: secretly formed a \u201ctask force\u201d in order to pursue the acquisition and development of a golf course, which was adjacent to the five parcels; commissioned Planning Resources, Inc., the Village\u2019s consultant in charge of reviewing CDG\u2019s petition, to prepare a plan to redesign the golf course so that some of the holes would be on the property CDG intended to acquire; and secretly met with other individuals to create opposition to CDG\u2019s plan. In August 1995, the Village planning commission voted down CDG\u2019s project, with the chairman allegedly pressuring other members to vote against it. Then, in October 1995, the Village\u2019s board of trustees voted down CDG\u2019s petition at a public hearing. Soon afterward, the Village publicly revealed that it planned to acquire the golf course, and later did so. In addition, one of the parcels was allegedly bought by individuals \u201cclosely aligned with certain of the Village\u2019s officials.\u201d CDG has not claimed that the Village itself acquired any of the five parcels which CDG had intended to purchase.\nCDG further alleged that its petition met all the Village\u2019s requirements for rezoning and annexation; that CDG took all the action the Village required; that CDG had spent heavily in reliance on its meetings with the Village; and that, after the Village denied the petition, CDG had to cancel its purchase contracts and forfeit some of what it had paid. CDG\u2019s projected gross profits from the project were $4.8 million.\nCount I of the counterclaim alleged that the Village deliberately frustrated CDG\u2019s business expectancy by secretly working to force CDG out of the planned development. While ostensibly reviewing CDG\u2019s petition, the Village allegedly planned all along to develop the adjoining golf course and help cronies of certain Village officials purchase one of the five parcels. Count II alleged that, when CDG filed its rezoning petition and paid the required fee, the Village became obligated through quasi-contract to process CDG\u2019s petition reasonably and in good faith, which it failed to do. CDG never stated what the Village or any of its employees gained by their alleged misconduct. Both counts sought in damages the projected gross profits of $4.8 million.\nThe Village moved to dismiss the counterclaims pursuant to section 2 \u2014 619(a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2 \u2014 619(a)(9) (West 1998)). It asserted sovereign immunity based on various provisions of the Tort Immunity Act (see 745 ILCS 10/2 \u2014 103, 2 \u2014 104, 2 \u2014 106, 2 \u2014 109, 2 \u2014 201, 2 \u2014 205 (West 1998)). The trial court dismissed the counterclaims, holding that both were barred by the Village\u2019s sovereign immunity under the Act. The Village then voluntarily dismissed its complaint, and CDG appealed.\nBefore the appellate court, CDG argued that (1) the Tort Immunity Act did not bar its counterclaims because the Act does not immunize governmental actions undertaken for \u201ccorrupt or malicious motives\u201d; and (2) the Act did not bar the second count for quasi-contract because section 2 \u2014 101(a) of the Act (745 ILCS 10/2 \u2014 101(a) (West 1998)) specifically preserves municipal liability based on contract.\nThe appellate court reversed the trial court and held that CDG\u2019s tort claim could proceed under the Act. The court rejected the Village\u2019s affirmative defenses and held that the general grants of immunity afforded by the Act are limited by the common law exception for \u201ccorrupt or malicious motives.\u201d 314 Ill. App. 3d 210, 214-15. The appellate court also reversed the trial court as to the second count and held that the Village could be held liable in quasi-contract to process CDG\u2019s petition in good faith and according to its usual procedures, and that that claim fell under section 2 \u2014 101(a) and was, therefore, not barred by the Act. 314 Ill. App. 3d at 215.\nThe Village appealed and we granted review of both issues under Rule 315(a) (177 Ill. 2d R. 315(a)). Since the trial court dismissed CDG\u2019s counterclaim under section 2 \u2014 619(a)(9) of the Code (735 ILCS 5/2 \u2014 619(a)(9) (West 1998)), our review is de nova. Henrich v. Libertyville High School, 186 Ill. 2d 381, 386 (1998).\nANALYSIS\nI. The Tort Immunity Act\nTraditionally, a governmental unit in Illinois was immune from tort liability pursuant to the common law doctrine of sovereign immunity. In 1959, however, this court abolished the doctrine in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 25 (1959). Then, in response to Molitor, the legislature in 1965 enacted the Tort Immunity Act (745 ILCS 10/1 \u2014 101 et seq. (West 1998)). Under the Act, Illinois adopted the general principle that local governmental units are liable in tort, but limited this liability with an extensive list of immunities based on specific government functions. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 506 (1990). Finally, in 1970, the state adopted a new constitution and with it a new provision regarding sovereign immunity. Article XIII, section 4, of the 1970 Constitution states: \u201cExcept as the General Assembly may provide by law, sovereign immunity in this State is abolished.\u201d Ill. Const. 1970, art. XIII, \u00a7 4. Today, therefore, the tort liability of a local public entity or employee is expressly controlled both by the constitutional provision and by legislative prerogative as embodied in the Tort Immunity Act. Burdinie, 139 Ill. 2d at 507.\nThe purpose of the Tort Immunity Act is to protect local public entities and public employees from liability arising from the operation of government. 745 ILCS 10/ 1 \u2014 101.1(a) (West 1998). \u201cBy providing immunity, the legislature sought to prevent the diversion of public funds from their intended purpose to the payment of damage claims.\u201d Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). The Tort Immunity Act grants only immunities and defenses; it does not create duties. 745 ILCS 10/1 \u2014 101.1(a) (West 1998). \u201cRather, the Act merely codifies those duties existing at common law, to which the subsequently delineated immunities apply.\u201d Barnett v. Zion Park District, 171 Ill. 2d 378, 386-88 (1996) (finding that park district owed plaintiff a common law duty of reasonable care); In re Chicago Flood Litigation, 176 Ill. 2d 179, 192 (1997) (\u201cgovernmental units are liable in tort on the same basis as private tortfeasors unless a tort immunity statute imposes conditions upon that liability\u201d); Bubb, 167 Ill. 2d at 378; West v. Kirkham, 147 Ill. 2d 1, 14 (1992); Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 412 (1991). The existence of a duty and the existence of an immunity, therefore, are separate issues. Barnett, 171 Ill. 2d at 388. Once a court determines that a duty exists, it then addresses whether the governmental unit or employee is immune from liability for a breach of that duty. See Barnett, 171 Ill. 2d at 388. In other words, because the Act implicitly recognizes duties which already exist at common law, we may refer to the common law to determine the duties a local public entity holds. But to determine whether that entity is liable for the breach of a duty, we look to the Tort Immunity Act, not the common law.\nII. CDG\u2019s Counterclaim in Tort\nThis court has already established a significant line of precedent regarding the existence of common law exceptions to immunities granted by the Act. The first case relevant to our discussion is Barnett v. Zion Park District, 171 Ill. 2d 378 (1996), where we considered whether the Act afforded immunity to a park district from a claim arising from the drowning of a 10-year-old boy in the district\u2019s pool. The district claimed immunity under section 3 \u2014 108(a), which provides in relevant part that, \u201cneither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.\u201d 745 ILCS 10/3 \u2014 108(a) (West 1992). The plaintiff alleged that the boy drowned in the vicinity of six lifeguards despite requests for help by bystanders and, therefore, the park district was liable for \u201cwillful and wanton misconduct.\u201d Barnett, 171 Ill. 2d at 391.\nIn dismissing the plaintiff\u2019s claim in Barnett, we held that though the district owed the child a common law duty of reasonable care, it was immune under section 3 \u2014 108 from liability for breaching that duty. Barnett, 171 Ill. 2d at 388, 391-92. We observed that when the legislature intended to limit an immunity to cover only negligence and not willful and wanton misconduct, it had \u201cunambiguously done so.\u201d Barnett, 171 Ill. 2d at 391, citing, e.g., 745 ILCS 10/2 \u2014 202, 2 \u2014 210, 3 \u2014 106, 3 \u2014 109(c)(2), 4 \u2014 105, 5 \u2014 103(b), 5 \u2014 106 (West 1992). Unlike those instances, however, the plain language of section 3 \u2014 108 contained no exception for willful and wanton misconduct. We reasoned that \u201c[s]ince the legislature omitted such a limitation from the plain language of section 3 \u2014 108, then the legislature must have intended to immunize liability for both negligence and willful and wanton misconduct.\u201d Barnett, 171 Ill. 2d at 391-92. We concluded, therefore, that \u201cgiven the full immunity provided by the legislature in the unconditional language of section 3 \u2014 108\u201d of the Act, the park district was immune from liability. Barnett, 171 Ill. 2d at 393. See also West v. Kirkham, 147 Ill. 2d 1, 6-7 (1992) (declining to insert notice requirement as a \u201csubstantial limitation on the immunity of section 3 \u2014 104 where none exists\u201d).\nLikewise, in In re Chicago Flood Litigation, 176 Ill. 2d 179 (1997), we held that the City of Chicago was immune under section 2 \u2014 201 of the Act for its alleged failure to supervise the construction work of a contractor on city bridges and for its failure to warn local residents of the resulting water damage and to repair the damage. Chicago Flood, 176 Ill. 2d at 192, 195-97; see 745 ILCS 10/2 \u2014 201 (West 1998). Section 2 \u2014 201, which is at issue in this case, provides that, \u201ca 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.\u201d 745 ILCS 10/2 \u2014 201 (West 1998). In Chicago Flood, we based our holding on the same rationale as set forth in Barnett and reasoned that since the plain language of section 2 \u2014 201 did not contain the common law exception to immunity for \u201cwillful and wanton misconduct,\u201d the employee, and consequently the City, were immune from liability. Chicago Flood, 176 Ill. 2d at 196.\nNext, in Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335 (1998), we addressed sections 2 \u2014 109 and 2 \u2014 201 of the Act with regard to the liability of the City of Chicago and its employee, a fire marshal. See 745 ILCS 10/2 \u2014 109 (West 1998) (providing that a local public entity is not liable \u201cfor an injury resulting from an act or omission of its employee where the employee is not liable\u201d). The plaintiff in Harinek alleged that the City of Chicago fire marshal negligently conducted a fire drill and that the fire marshal\u2019s conduct was \u201cwillful and wanton.\u201d Harinek, 181 Ill. 2d at 338. We held that the fire marshal\u2019s conduct constituted acts or omissions in determining policy and exercising discretion under section 2 \u2014 201. Harinek, 181 Ill. 2d at 342-43. We further held that section 2 \u2014 201 did not contain an exception for \u201cwillful and wanton misconduct\u201d and, pursuant to Chicago Flood, therefore, such a claim was barred by the City\u2019s immunity under the Act. Harinek, 181 Ill. 2d at 347, citing Chicago Flood, 176 Ill. 2d at 196.\nFinally, in Henrich v. Libertyville High School, 186 Ill. 2d 381 (1998), we again followed the plain language of the Act and declined to recognize the common law exception for \u201cwillful and wanton misconduct\u201d in the immunity afforded to local public entities and employees under section 3\u2014108. Henrich, 186 Ill. 2d at 395; see 745 ILCS 10/3\u2014108 (West 1998).\nWe turn now to the instant case, where CDG asks that we impose the common law exception for \u201ccorrupt or malicious motives\u201d onto certain provisions of the Act. Based on the foregoing precedent, we think it obvious that, just as the Act does not contemplate an exception to immunity for \u201cwillful and wanton misconduct,\u201d unless it expressly provides for such, the Act does not implicitly contemplate the common law exception for \u201ccorrupt or malicious motives.\u201d None of the provisions on which the Village relies expressly recognize an exception for conduct inspired by \u201ccorrupt or malicious motives.\u201d See 745 ILCS 10/2 \u2014 103, 2 \u2014 104, 2 \u2014 106, 2 \u2014 109, 2 \u2014 201, 2 \u2014 205 (West 1998). It is well settled that \u201c[wjhere an enactment is clear and unambiguous a court is not at liberty to depart from the plain language and meaning of the statute by reading into it exceptions, limitations or conditions that the legislature did not express.\u201d Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990). See also Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 508 (2000); Henrich, 186 Ill. 2d at 394-95; Chicago Flood, 176 Ill. 2d at 193; Barnett, 171 Ill. 2d at 388-89. Therefore, because the plain language of these provisions does not contain an exception for \u201ccorrupt or malicious motives,\u201d we will not insert one.\nMoreover, if this court were to recognize an exception for \u201ccorrupt or malicious motives\u201d where none exists at all in the Act, we would be venturing into the province of the legislature and violating the separation of powers. As we explained in Harinek,\n\u201c[W]hen a court finds *** that the General Assembly has granted a public entity immunity from liability, the court may not then negate that statutory immunity by applying a common law exception to a common law rule. Doing so would violate not only the Illinois Constitution\u2019s provision governing sovereign immunity (Ill. Const. 1970, art. XIII, \u00a7 4), but also the Constitution\u2019s separation of powers clause, which provides that no branch of government \u2018shall exercise powers properly belonging to another.\u2019 Ill. Const. 1970, art. II, \u00a7 1.\u201d Harinek, 181 Ill. 2d at 346-47.\nSee also Michigan Avenue, 191 Ill. 2d at 522, quoting People v. Gamer, 147 Ill. 2d 467, 475-76 (1992) (\u201c \u2018Under the doctrine of separation of powers, courts may not legislate, rewrite or extend legislation. If the statute as enacted seems to operate in certain cases unjustly or inappropriately, the appeal must be to the General Assembly, and not to the court\u2019 \u201d). If the legislature had intended to include an exception for \u201ccorrupt or malicious motives,\u201d it would have done so. Indeed, it has recognized exceptions elsewhere. In section 2 \u2014 202, for example, the legislature granted immunity to a public employee for an \u201cact or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.\u201d (Emphases added.) 745 ILCS 10/2 \u2014 202 (West 1998). In section 3 \u2014 106, the legislature again recognized an exception to liability for willful and wanton misconduct. 745 ILCS 10/3 \u2014 106 (West 1998). The legislature has recognized exceptions to its grants of immunity and enumerated these exceptions in the plain language of the Act. See, e.g., 745 ILCS 10/ 2 \u2014 202, 2 \u2014 203, 2 \u2014 208, 3 \u2014 106, 3 \u2014 109(c)(2), 4 \u2014 105, 5 \u2014 103(b), 5 \u2014 106 (West 1998). On the other hand, no provision of the Act contains an exception for \u201ccorrupt or malicious motives.\u201d We will not adopt the legislative prerogative to insert such an exception and, therefore, decline to impose the common law \u201ccorrupt or malicious motives\u201d exception onto the immunities claimed by the Village in the instant case.\nThe appellate court in this case held that the conduct complained of by CDG did not even fall within any of the specific government functions immunized by the Act. It reasoned that CDG was \u201cnot complaining of the denial of its petition per se but, rather, of the Village\u2019s abuse of the governmental process and power to hijack [CDG\u2019s] plans.\u201d 314 Ill. App. 3d at 214. CDG\u2019s claim was really about the \u201ccorrupt misuse of the Village\u2019s power to steal away the expected benefits of [CDG\u2019s] plans to develop the property.\u201d 314 Ill. App. 3d at 215. The \u201cgravamen\u201d of CDG\u2019s claim, in other words, was the \u201cVillage\u2019s theft of [CDG\u2019s] opportunity.\u201d 314 Ill. App. 3d at 213-14.\nThe appellate court\u2019s characterization of CDG\u2019s claim is mistaken because it ignores the plain language of the Act. Under section 2 \u2014 104 of the Act, for example, local public entities are immune from liability for \u201cinjury caused by the *** denial ***, or by the failure or refusal to issue *** any permit, license, certificate, approval, order or similar authorization where the entity or its employee is authorized by enactment to determine whether or not such authorization should be issued [or] denied.\u201d 745 ILCS 10/2 \u2014 104 (West 1998). The Village\u2019s denial of CDG\u2019s rezoning petition is precisely what the legislature intended to immunize such entities from. CDG attempts to avoid this result by claiming that it really challenges the process by which the Village denied its petition, not the mere fact that it was denied. But whether the Village denied the petition through an \u201cabuse of official process and power,\u201d through \u201ccorrupt and malicious misuse of power,\u201d or for \u201ccorrupt or malicious motives,\u201d as CDG claims, is wholly immaterial to CDG\u2019s claim in tort. It is immaterial because section 2 \u2014 104 contains no reference to intent whatsoever and, again, it certainly does not contain an exception for \u201cwillful and wanton misconduct\u201d or \u201ccorrupt or malicious motives.\u201d\nAs another twist on the above argument, CDG attempts to frame its attack on the process by which the Village denied its petition by labeling the denial a \u201cministerial task.\u201d CDG alleges that the Village\u2019s course of conduct was a \u201cdeviation from the standard of usual and customary zoning procedures,\u201d and that the Village is not immune for its improper performance of this ministerial task.\nCDG correctly asserts that though a municipality is immune from liability in its performance of discretionary tasks, it cannot claim immunity for the improper performance of ministerial tasks. Chicago Flood, 176 Ill. 2d at 193-94. In fact, the discretionary immunity doctrine is codified in sections 2 \u2014 109 and 2 \u2014 201 of the Act, which provide that \u201ca public employee serving in a position involving the determination of policy or the exercise of discretion [and, thereby, the local public entity,] 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.\u201d 745 ILCS 10/2 \u2014 109, 2 \u2014 201 (West 1998); Chicago Flood, 176 Ill. 2d at 193-94. As this court has previously explained: We have never held, however, that the grant or denial of a zoning petition is a ministerial, as opposed to a discretionary, task under a tort theory of liability. Therefore, CDG\u2019s argument is misplaced. Moreover, section 2 \u2014 104 plainly grants immunity for injury caused by the \u201cdenial [of] any permit\u201d and is, therefore, controlling. (Emphasis added.) 745 ILCS 10/2 \u2014 104 (West 1998).\n\u201c \u2018Official action is judicial where it is the result of judgment or discretion. Official duty is ministerial, when it is absolute, certain and imperative, involving merely the execution of a set task, and when the law which imposes it, prescribes and defines the time, mode and occasion of its performance with such certainty, that nothing remains for judgment or discretion.\u2019 \u201d Chicago Flood, 176 Ill. 2d at 194, quoting City of Chicago v. Seban, 165 Ill. 371, 377-78 (1897).\nIn addition, if there were a \u201ctheft of [CDG\u2019s] opportunity\u201d by the Village, as the appellate court found, that \u201ctheft\u201d came in the form of the denial of CDG\u2019s petition. That the Village denied CDG\u2019s petition is the reason this matter is before us. Such an action by the Village falls squarely within section 2 \u2014 104 of the Act because the Village and its officials were authorized to either grant or deny CDG\u2019s petition for rezoning and site plan approval. Clearly, the legislature did not intend to grant an empty immunity to local public entities when they denied \u201cpermits\u201d such as zoning petitions. See State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 541 (1992) (\u201ca court construing the language of a statute will assume that the legislature did not intend to produce an absurd or unjust result\u201d). CDG alleged that it was injured by the denial of the petition; we hold, therefore, that pursuant to the Act the Village is immune from liability for any injury resulting from that denial.\nLikewise, the Village is immune from liability for any injury resulting from the mayor\u2019s alleged assurance that the project would be approved. Under section 2 \u2014 106 of the Act, the Village is not liable for an injury \u201ccaused by an oral promise or misrepresentation of its employee, whether or not such promise or misrepresentation is negligent or intentional.\u201d (Emphasis added.) 745 ILCS 10/2 \u2014 106 (West 1998). And section 2 \u2014 109 provides that a local public entity is not liable where its employee is not liable. 745 ILCS 10/2 \u2014 109 (West 1998). CDG claims that, in reliance on its meetings with the Village and the mayor, it spent a good deal of money and, when the Village denied the petition, it had to cancel its purchase contracts and forfeit some of what it had paid. Section 2 \u2014 106, however, immunizes the Village from liability for any injury resulting from another\u2019s reliance on an employee\u2019s oral promises or misrepresentations. 745 ILCS 10/2 \u2014 106 (West 1998). In fact, that section expressly immunizes the Village even when the promise or misrepresentation is \u201cintentional.\u201d 745 ILCS 10/2\u2014 106 (West 1998). CDG\u2019s tort claim falls within the purview of sections 2 \u2014 104, 2 \u2014 106, 2 \u2014 109, and 2 \u2014 201 of the Act; therefore, the Village is immune from liability.\nCDG\u2019s heavy reliance on the opinion of the Appellate Court, Second District, in River Park, Inc. v. City of Highland, Park, 281 Ill. App. 3d 154 (1996), is misplaced. In River Park, the appellate court held that a municipality was not shielded from liability for conduct that was \u201ccorrupt, malicious, or otherwise undertaken in bad faith\u201d under the immunity granted by section 2 \u2014 104 of the Act. River Park, 281 Ill. App. 3d at 163. However, not only did the court in River Park not have the benefit of this court\u2019s holdings in Chicago Flood, Harinek, scad Hen-rich, but the rationale of River Park was based on a case that originated before the 1970 Constitution. In that decision, Young v. Hansen, 118 Ill. App. 2d 1 (1969), the Second District adopted the common law exception of \u201ccorrupt or malicious motives\u201d as an exception to the Act. Young held that the \u201cimmunity afforded by section 2 \u2014 201\u2014while not expressly referring to the question of malice \u2014 extends only to those types of acts not resulting from corrupt or malicious motives.\u201d Young, 118 Ill. App. 2d at 8. Since then, the Second District has followed the Young holding to recognize the \u201ccorrupt or malicious motives\u201d exception to other grants of immunity by the Act. See River Park, 281 Ill. App. 3d at 163; Madonna v. Giacobbe, 190 Ill. App. 3d 859, 868 (1989) (recognizing corrupt or malicious motives exception to sections 2 \u2014 103, 2 \u2014 201, and 2 \u2014 205); Idlehour Development Co. v. City of St. Charles, 88 Ill. App. 3d 47, 52 (1980) (recognizing corrupt or malicious motives exception to sections 2 \u2014 201 and 2 \u2014 206 of the Act).\nSince 1970, however, the authority of the General Assembly to legislate with regard to governmental immunity has derived directly from the Illinois Constitution. The Constitution was amended to abolish sovereign immunity \u201c[ejxcept as the General Assembly may provide by law.\u201d (Emphasis added.) Ill. Const. 1970, art. XIII, \u00a7 4. \u201cTherefore, the tort liability of a [local public entity] is expressly controlled by constitutional provision and legislative prerogative as embodied in the [Act].\u201d (Emphasis added.) Burdinie, 139 Ill. 2d at 507. Tort liability of local public entities is no longer controlled by the common law because the adoption of article XIII, section 4, in 1970 wholly displaced the common law doctrines of municipal tort immunity. Calloway v. Kinkelaar, 168 Ill. 2d 312, 335-36, 339 (1995) (Freeman, J., specially concurring). See also Michigan Avenue, 191 Ill. 2d at 519 (reasoning that the \u201clegislature has the inherent authority to repeal or change the common law and may do away with all or part of it\u201d). Governmental tort immunity has become a matter of statute and the \u201cGeneral Assembly [was made] the ultimate authority in determining whether a unit of local government is immune from tort liability ***.\u201d Burdinie, 139 Ill. 2d at 510.\nYoung was decided before article XIII, section 4, of the 1970 Constitution; therefore, its rationale of drawing from the common law doctrine of sovereign immunity to interpret the Tort Immunity Act is improper. Moreover, it appears that the constitutional issue was never presented to the appellate court in River Park. Young and its progeny, including River Park, are hereby overruled.\nBased on these considerations, we reverse the appellate court and affirm the trial court\u2019s dismissal of CDG\u2019s counterclaim in tort as barred by the Village\u2019s sovereign immunity under sections 2 \u2014 104, 2 \u2014 106, 2 \u2014 109, and 2 \u2014 201 of the Act.\nIII. CDG\u2019s Counterclaim in Quasi-Contract\nIn count II, CDG claims that when it filed its rezoning petition and paid the required fee, the Village became obligated to process its petition in good faith. CDG frames it as a claim in \u201cquasi-contract\u201d in order to avail itself of section 2 \u2014 101 of the Act, which states that the Act does not affect liability based on contract. See 745 ILCS 10/ 2 \u2014 101(a) (West 1998).\nIn an action for \u201cquasi-contract\u201d (or, contract implied in law), a plaintiff asks the court to remedy the fact that the defendant was \u201cunjustly enriched\u201d by imposing a contract. See People ex rel. Hartigan v. E&E Hauling, Inc., 153 Ill. 2d 473, 497 (1992). A quasi-contract exists independent of any agreement or consent of the parties. Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 334 (1977) (\u201cThe right to recover on a [quasi-contract], although phrased in contract terminology, is not based on an agreement between parties but is an obligation created by law\u201d). In fact, the intention of the parties is entirely disregarded. A quasi-contract, therefore, is \u201cno contract at all,\u201d but a \u201crule of law that requires restitution to the plaintiff of something that came into the defendant\u2019s hands but injustice belongs to the plaintiff.\u201d D. Dobbs, Dobbs Law of Remedies \u00a7 4.2(3), at 580 (2d ed. 1993). Such an action is based on the principle that no one ought to enrich himself unjustly at the expense of another. Liability is based on the principle of unjust enrichment and the contract is the remedy.\nBecause a quasi-contract is \u201cno contract at all\u201d but instead is a remedy based upon the principle of unjust enrichment, it follows that a quasi-contract is not a \u201ccontract\u201d for purposes of section 2 \u2014 101(a) (745 ILCS 10/2 \u2014 101(a) (West 1998)). Consequently, section 2 \u2014 101(a), which preserves municipal liability based upon contract, does not apply to CDG\u2019s second count for quasi-contract. The appellate court, therefore, erred in finding that the second count of CDG\u2019s counterclaim fell within section 2 \u2014 101(a) and in finding that the Village could be held liable in quasi-contract to process CDG\u2019s petition in good faith and according to its usual procedures. Accordingly, we reverse the appellate court and affirm the trial court\u2019s dismissal of count II of CDG\u2019s counterclaim as barred by the Village\u2019s sovereign immunity under sections 2 \u2014 104, 2 \u2014 106, 2 \u2014 109, and 2 \u2014 201 of the Act. Because we find that count II of CDG\u2019s counterclaim was barred by the Village\u2019s sovereign immunity, we need not consider whether CDG properly stated a claim in quasi-contract.\nCONCLUSION\nFor the reasons stated, we reverse the appellate court\u2019s holding that CDG\u2019s count I in tort could proceed against the Village under the Tort Immunity Act. We also reverse the appellate court\u2019s judgment allowing CDG\u2019s count II claim in quasi-contract to proceed. We affirm the trial court\u2019s dismissal of CDG\u2019s counterclaim in tort and quasi-contract.\nAppellate court judgment reversed; circuit court judgment affirmed.", "type": "majority", "author": "JUSTICE THOMAS" }, { "text": "JUSTICE McMORROW,\nconcurring in part and dissenting in part:\nI am in agreement with the conclusion of the majority that section 2 \u2014 101(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/2 \u2014 101(a) (West 1998)), which preserves municipal liability for claims based on \u201ccontract,\u201d does not contemplate actions for quasi-contract. An action in quasi-contract is a theory of recovery which is \u201ctotally unrelated to traditional concepts of contract law.\u201d 42 C.J.S. Implied Contracts \u00a7 4 (1991); see generally 1 D. Dobbs, Remedies \u00a7 4.2(3), at 580 (2d ed. 1993).\nI am also in agreement with the majority\u2019s analysis of section 2 \u2014 106 of the Tort Immunity Act (745 ILCS 10/2 \u2014 106 (West 1998)), which provides that \u201c[a] local public entity is not liable for an injury caused by an oral promise or misrepresentation of its employee, whether or not such promise or misrepresentation is negligent or intentional.\u201d (Emphasis added.) 745 ILCS 10/2 \u2014 106 (West 1998). Because intentional conduct is explicitly immunized in this provision, I concur in the majority\u2019s conclusion that the Village of Bloomingdale (Village) is immune from liability for any alleged injuries claimed by CDG Enterprises, Inc. (CDG), in its counterclaim as a result of the assurances made by the Village\u2019s mayor that CDG\u2019s development project would be approved.\nI respectfully dissent, however, from the majority\u2019s conclusion that intentional misconduct by a local public entity or employee is also shielded by the provisions contained within section 2 \u2014 104 of the Tort Immunity Act (745 ILCS 10/2 \u2014 104 (West 1998)). For the reasons more fully set forth in my separate opinions in Barnett v. Zion Park District, 171 Ill. 2d 378, 402-08 (1996) (McMorrow, J., dissenting), In re Chicago Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J., concurring in part and dissenting in part), Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998) (McMorrow, J., concurring in part and dissenting in part), and Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02 (1998) (McMorrow, J., dissenting), I continue to adhere to the view that where the Tort Immunity Act is silent on the question of whether intentional government misconduct is exempt from immunity, it should not be concluded that such silence translates into a positive intent on the part of the General Assembly to cloak local governmental entities and their employees with unconditional immunity.\nThe genesis of the instant appeal is the March 1995 filing by CDG of a petition with the Village\u2019s planning commission to request the rezoning and annexation of five parcels of property located between the Glendale Golf Course on the west and Medinah Road on the east. CDG had contracted to purchase this land with the intent of developing a residential subdivision consisting of 122 townhomes. In August 1995, the Village\u2019s planning commission voted down the project, and in October 1995, the Village\u2019s board of trustees denied CDG\u2019s rezoning and site plan approval request during a public hearing.\nIn September 1996, the Village filed a complaint for breach of contract against CDG, alleging that CDG had breached a written \u201capplication fee agreement\u201d with the Village in which CDG had promised to pay the costs of the Village\u2019s attorney, land planner, engineer and director of legal affairs in conjunction with CDG\u2019s application for rezoning and site plan approval. The Village\u2019s complaint alleged that CDG had failed to pay the costs owed to the Village pursuant to this written agreement.\nCDG answered the Village\u2019s complaint and filed a counterclaim against the Village. The circuit court granted the Village\u2019s motion to dismiss CDG\u2019s counterclaim pursuant to section 2 \u2014 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619(a)(9) (West 1998)), finding that various provisions of the Tort Immunity Act immunized the Village from CDG\u2019s claims. Because this appeal comes before us on review of a section 2 \u2014 619 dismissal, we must accept as true all well-pleaded facts in CDG\u2019s counterclaim, as well as all inferences that can reasonably be drawn in CDG\u2019s favor. See Chicago Teachers Union, Local 1 v. Board of Education of the City of Chicago, 189 Ill. 2d 200, 206 (2000).\nCDG\u2019s counterclaim alleges that the Village tortiously interfered with CDG\u2019s business expectancy in purchasing the five parcels of land and in developing the intended residential subdivision. According to the counterclaim, prior to negotiating the contracts to acquire the land parcels, representatives of CDG met with the Village\u2019s mayor to determine the feasibility of the subdivision project. According to the counterclaim, the mayor assured CDG that the \u201cproject would be approved\u201d based upon the Village\u2019s desire to encourage further residential development along the Medinah Road corridor. According to CDG, between September 1994 and October 1995, its representatives not only met with various Village officials on numerous occasions to review CDG\u2019s development plans, but also appeared before the Village\u2019s planning commission several times for public hearings regarding CDG\u2019s rezoning and annexation requests. The counterclaim alleges that while the Village was ostensibly reviewing CDG\u2019s proposals, sometime during June or July 1995 the \u201cVillage formed an internal secret \u2018task force\u2019 to pursue the acquisition and financing\u201d of the Glendale Golf Course. The counterclaim further alleges that certain Village officials \u201csecretly met with non-resident property owners along the Medinah Road corridor in an effort to manufacture opposition\u201d to CDG\u2019s development plans, with the goal of \u201csubverting] and manipulating] the public hearing process so as to deprive [CDG] of a fair and impartial hearing so that the Village, or certain developers favored by certain of the Village\u2019s officials, could acquire the parcels for which [CDG] was the contract purchaser.\u201d\nThe counterclaim further relates that the Village retained Planning Resources, Inc., as its consultant for land planning and development. According to the counterclaim, at the same time that Planning Resources was reviewing CDG\u2019s land plans and petition, the Village had surreptitiously commissioned Planning Resources \u201cto prepare a redesign of the Glendale Golf Course so as to reconfigure the lay-out of various holes\u201d onto CDG\u2019s property. CDG alleges that at no time did any representative of Planning Resources or the Village disclose Planning Resource\u2019s dual capacity. The counterclaim further alleges that representatives of Planning Resources \u201csecretly met with the opposition group created by certain of the Village\u2019s officials,\u201d and that one representative of Planning Resources disclosed to CDG that \u201cshe was told by an individual on the Village\u2019s board to kill [CDG\u2019s] project.\u201d\nAccording to CDG\u2019s counterclaim, during the August 15, 1996, meeting of the Village\u2019s planning commission at which time CDG\u2019s petition was declined, one commissioner \u201cvoiced objection over the fact that the chairman of the Village\u2019s planning commission had contacted him at home to discuss [CDG\u2019s] pending petition,\u201d while a second commissioner objected to the fact that \u201cthe chairman, prior to the commencement of the hearing, had circulated a preprinted motion to deny [CDG\u2019s] project.\u201d According to the counterclaim, these two members of the planning commission filed a \u201cminority report\u201d setting forth the improper acts of the chairman of the Village\u2019s planning commission.\nCDG\u2019s counterclaim further alleges that after the October 23, 1995, public hearing during which the Village\u2019s board of trustees voted against CDG\u2019s petition, \u201cthe Village made public its intention to acquire the Glendale Golf Course by public referendum.\u201d Soon thereafter, CDG alleges, the Village successfully acquired the golf course. CDG\u2019s counterclaim further alleges that subsequent to the denial of its proposals, at least one of the five land parcels was \u201cpurchased by individuals closely aligned with certain of the Village\u2019s officials.\u201d\nIn its counterclaim, CDG asserts that its petition met all of the Village\u2019s requirements for rezoning and annexation; that CDG took all the action the Village required; that CDG had incurred costs in reliance on its meetings with the Village while Village officials were \u201csecretly working to sabotage the public hearing process and [CDG\u2019s] development efforts\u201d; and that after the Village denied its petition, CDG was required to cancel the purchase contracts and forfeit some of the monies which had been paid.\nThe counterclaim filed by CDG asserts that, based upon the foregoing facts, the Village \u201cwilfully and with a conscious disregard for the rights of [CDG], purposefully and with the intent to prevent [CDG] from obtaining its rezoning, annexation and development,\u201d engaged in a course of conduct which \u201cwas unreasonable, arbitrary and capricious,\u201d constituted a \u201cdeviation from the standard of usual and customary zoning authority procedures,\u201d and was \u201cdesigned to subvert the public hearing process so as to predetermine the outcome.\u201d CDG contends in its counterclaim that this course of conduct was entered into for \u201cimproper governmental purposes\u201d and \u201cspecifically designed to deprive [CDG] of its reasonable business expectancy.\u201d CDG requested damages in the amount of $4.8 million, the expected amount of gross profits from its development plans.\nThe majority affirms the circuit court\u2019s dismissal of CDG\u2019s counterclaim on the basis that the Village is immunized from CDG\u2019s claims pursuant to several provisions of the Tort Immunity Act. I disagree with the majority\u2019s holding that CDG\u2019s counterclaim is barred by section 2 \u2014 104 of the Act (745 ILCS 10/2 \u2014 104 (West 1998)). The majority arrives at this conclusion based on a rationale first employed by this court in Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). In Barnett, this court held that section 3 \u2014 108(a) of the Act (745 ILCS 10/3\u2014 108(a) (West 1992)) cloaked the defendant park district with absolute immunity against allegations that the defendant\u2019s swimming pool lifeguards knowingly and willfully ignored pleas to help a drowning minor, thereby causing the minor\u2019s death. The Barnett majority reasoned that the absence of an explicit exception for willful and wanton misconduct in section 3 \u2014 108(a) of the Act meant that \u201cthe legislature must have intended to immunize liability for both negligence and willful and wanton misconduct.\u201d Barnett, 171 Ill. 2d at 391-92. In the course of my dissent from the majority\u2019s holding in Barnett, I observed that there \u201care strong reasons why the policies underlying grants of immunity for simple negligence should not be impliedly expanded to reach willful and wanton or intentional misconduct.\u201d Barnett, 171 Ill. 2d at 403 (McMorrow, J., dissenting).\nMore specifically, I explained that \u201c[t]he general rationale for granting public entities the protection of immunities not enjoyed by private entities is the significant expense and burdens placed upon the government\u201d when negligence on the part of local public entities or officials carrying out their government duties results in injuries to the public and such negligence lawsuits \u201care permitted to flourish unchecked.\u201d Barnett, 171 Ill. 2d at 403-04 (McMorrow, J., dissenting). It was my view, however, that the \u201crationale underlying a grant of immunity for simple negligence is different in kind from any justification for immunizing tortious conduct that is intentionally harmful or willful and wanton,\u201d and if the legislature actually intended to bestow absolute immunity for willful and wanton misconduct, the immunity statute should positively and unequivocally state such an intention. Barnett, 171 Ill. 2d at 404 (McMorrow, J., dissenting).\nSince Barnett, I have adhered to my belief that the policies underlying grants of immunity for simple negligence are distinguishable from any justification for blanketing deliberate governmental misconduct with immunity. See In re Chicago Flood Litigation, 176 Ill. 2d 179, 213-14 (1997) (McMorrow, J., concurring in part and dissenting in part); Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d 335, 354 (1998) (McMorrow, J., concurring in part and dissenting in part); Henrich v. Libertyville High School, 186 Ill. 2d 381, 401-02 (McMorrow, J., dissenting). I note that my conclusion in Barnett that the legislature did not intend to immunize willful and wanton misconduct in the immunity provisions of section 3 \u2014 108 was validated when the General Assembly passed Public Act 90 \u2014 805 (Pub. Act 90 \u2014 805, eff. December 2, 1998), which amended section 3 \u2014 108 to exclude willful and wanton conduct from the immunity granted by the statute. My conviction remains strong that deliberate acts of governmental misconduct, such as those alleged by CDG in the instant cause, are not shielded under the Tort Immunity Act by provisions which remain silent with respect to an express exemption for such intentional bad acts.\nIn the matter at bar, the majority, based upon the Barnett rationale, interprets section 2 \u2014 104 of the Act (745 ILCS 10/2 \u2014 104 (West 1998)) as affording a local governmental entity absolute immunity against liability for an \u201cinjury\u201d caused by a denial of \u201cany permit\u201d because this section does not contain an express exemption for willful and wanton misconduct or for corrupt and malicious motives. In order to fit CDG\u2019s counterclaim within the purview of section 2 \u2014 104, the majority narrowly construes CDG\u2019s allegations as a complaint against the Village\u2019s denial of its rezoning, annexation and site development petition. As the appellate court correctly held below, CDG\u2019s counterclaim complains of more than the mere denial of its petition by the Village. 314 Ill. App. 3d at 214. CDG alleges that the Village deliberately, maliciously and willfully pursued a course of conduct and abused its governmental powers in an effort to deprive CDG of expected benefits and appropriate those benefits to itself and its favored developers. Specific allegations in the counterclaim, which must be taken as true, state that while the Village and its officials gave the appearance that CDG\u2019s development and annexation requests were being validly processed, the Village secretly formed opposition groups against CDG\u2019s plans and had commissioned the Village\u2019s own land planning consultant to work in a dual capacity with respect to CDG. In addition, CDG alleged that the chairman of the Village\u2019s land planning commission had attempted to improperly influence the votes of the land planning commissioners against CDG. Blanket immunity should not be afforded to acts, such as those alleged by CDG, which are performed by local governmental entities or government officials in bad faith or out of corrupt and malicious motives.\nIn support of its conclusion that the Village is afforded absolute immunity against the allegations of CDG, the majority asserts that \u201c[c]learly, the legislature did not intend to grant an empty immunity to local public entities when they denied \u2018permits\u2019 such as zoning petitions,\u201d and that construing section 2 \u2014 104 in a contrary manner would lead to an absurd result. 196 Ill. 2d at 497. I disagree. It is evident to me that the blanket, unlimited immunity bestowed upon the Village in this case is unnecessary to protect public entities from liability arising from \u201cthe operation of government,\u201d which is the stated purpose of the Tort Immunity Act (745 ILCS 10/1 \u2014 101.1 (West 1998)). Construing section 2 \u2014 104 of the Act to immunize only negligent conduct would completely fulfill this legislative objective.\nFor the reasons stated, I dissent in part from the opinion of the majority.\nIn passing, the majority opinion also indicates that the allegations of CDG\u2019s counterclaim are barred by section 2 \u2014 201 of the Act (745 ILCS 10/2 \u2014 201(West 1998)), which provides, inter alla, that a public official serving in a position involving the exercise of discretion is not liable for injuries resulting from an exercise of that discretion. However, in the instant cause, the majority never actually applies section 2 \u2014 201 as part of its analysis, instead characterizing as \u201cmisplaced\u201d CDG\u2019s argument that the process of considering a zoning petition is ministerial. Nevertheless, I reiterate my view, explained in my dissent in In re Chicago Flood Litigation, 176 Ill. 2d 179, 214 (McMorrow, J., concurring in part and dissenting in part), that because \u201cgood faith is a component of discretionary immunity,\u201d section 2 \u2014 201 does not immunize willful and wanton misconduct.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE McMORROW," } ], "attorneys": [ "Richard T. Ryan and Mark F. Smolens, of Ryan, Smolens & Jones, of Chicago, for appellant.", "Michael J. Morrisroe and Teresa L. Einarson, of Bloomingdale, for appellee." ], "corrections": "", "head_matter": "(No. 89963.\nTHE VILLAGE OF BLOOMINGDALE, Appellant, v. CDG ENTERPRISES, INC., Appellee.\nOpinion filed June 21, 2001.\nMcMORROW J-> concurring in part and dissenting in part.\nRichard T. Ryan and Mark F. Smolens, of Ryan, Smolens & Jones, of Chicago, for appellant.\nMichael J. Morrisroe and Teresa L. Einarson, of Bloomingdale, for appellee." }, "file_name": "0484-01", "first_page_order": 494, "last_page_order": 520 }