{ "id": 680677, "name": "BRUNO J. HALLECK, Plaintiff-Appellant, v. THE COUNTY OF COOK, Defendant-Appellee", "name_abbreviation": "Halleck v. County of Cook", "decision_date": "1994-06-29", "docket_number": "No. 1\u201493\u20140057", "first_page": "887", "last_page": "894", "citations": [ { "type": "official", "cite": "264 Ill. App. 3d 887" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "487 N.E.2d 726", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 719", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3567325 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0719-01" ] }, { "cite": "519 N.E.2d 82", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "165 Ill. 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App. 3d", "case_ids": [ 3543271 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0601-01" ] }, { "cite": "585 N.E.2d 123", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "146 Ill. 2d 61", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597072 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "81" }, { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0061-01" ] }, { "cite": "568 N.E.2d 1359", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "210 Ill. App. 3d 499", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2535575 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0499-01" ] }, { "cite": "590 N.E.2d 490", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 105", "category": "reporters:state", "reporter": "Ill. 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HALLECK, Plaintiff-Appellant, v. THE COUNTY OF COOK, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nIn this action alleging retaliatory discharge by defendant County of Cook, plaintiff Bruno Halleck appeals orders of the trial court which found that the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1 \u2014 101 et seq. (West 1992)) applies to such causes of action; the Act\u2019s one-year statute of limitation (745 ILCS 10/8 \u2014 101 (West 1992)) bars his complaint; and the doctrine of equitable estoppel, as a matter of law, does not apply.\nThe two issues raised on appeal are (1) whether a retaliatory discharge claim against a governmental entity is subject to the one-year limitations period provided in the Act or the five-year statute of limitations provided in the Code of Civil Procedure (735 ILCS 5/13 \u2014 205 (West 1992)) and (2) whether the doctrine of equitable estoppel precludes the defense of the statute of limitations.\nWe affirm.\nOn July 8, 1989, plaintiff sustained injuries in an accident related to his employment as a truck driver for the Department of Highways. Plaintiff had worked in such capacity for approximately nine years. As a result of these injuries, plaintiff received some benefits under the Workers\u2019 Compensation Act (820 ILCS 305/8(a) (West 1992)). However, plaintiff remained temporarily totally incapacitated for work from July 8, 1989, through June 1, 1990, and sought weekly payments in accordance with the Workers\u2019 Compensation Act.\nEffective April 22, 1990, plaintiff was \"separated from the payroll of the Cook County Highway Department\u201d according to written notice provided to plaintiff by defendant on April 15, 1990. Defendant offered no reason for this action. At the time of separation plaintiff was receiving medical care for his injuries and asserting his right to receive weekly compensation for his temporary total incapacity.\nOn June 1, 1990, plaintiff was released by his treating physician to return to work. Defendant, however, refused and has continued to refuse to reinstate plaintiff to employment.\nOn June 13, 1990, an application for adjustment of claim was filed on behalf of plaintiff at the Illinois Industrial Commission. On July 19, 1990, a petition for immediate hearing was filed on behalf of plaintiff. On August 2, 1990, defendant filed a response which declared that temporary total disability benefits had been paid from July 6, 1989, to April 6, 1990, but that such benefits had been terminated because plaintiff \"was observed engaging in manual labor while allegedly temporarily disabled and receiving Workers\u2019 Compensation payments from the County.\u201d In addition, defendant stated that plaintiff was no longer its employee. Trial was scheduled for September 19, 1990.\nAt the September 19, 1990, proceedings before the Industrial Commission, the assistant State\u2019s Attorney (Jean Marie Calcagno) represented defendant, reported that plaintiff was under criminal investigation for allegedly working while receiving temporary benefits and requested that the case be continued so that she could determine the nature of the investigation and evaluate possible settlement of plaintiff\u2019s claim. The trial was continued and plaintiff s workers\u2019 compensation claim was set for hearing on December 13, 1990.\nOn December 13, 1990, Assistant State\u2019s Attorney Calcagno requested that plaintiff \"hold off any action\u201d so that she could attempt to settle plaintiff\u2019s claim including resolution of the question of plaintiff\u2019s return to work with defendant. The trial was again continued and no action was taken regarding plaintiff\u2019s return to work.\nOn March 20, 1991, plaintiff\u2019s workers\u2019 compensation claim was again set for hearing. At this time Assistant State\u2019s Attorney Robert Scott appeared on behalf of defendant, requested that plaintiff\u2019s case be continued again and reported that at the next Cook County Board meeting scheduled for April 5, 1991, he would recommend the settlement of plaintiff\u2019s claim, including reinstatement as an employee with defendant, and that it would be approved.\nOn April 15, 1991, Assistant State\u2019s Attorney Scott advised plaintiff that the Cook County Board would not approve a settlement and referred to a video tape which purported to show plaintiff working.\nOn May 15 and May 24, 1991, plaintiff\u2019s workers\u2019 compensation claim proceeded to hearing.\nOn July 1, 1991, the arbitrator filed a decision with the Industrial Commission finding that defendant terminated plaintiffs employment without any explanation and refused, without good and just cause, the payment of weekly compensation benefits from the period April 6, 1990, through June 1, 1990. The arbitrator also assessed penalties against defendant as authorized by the Workers\u2019 Compensation Act. 820 ILCS 305/19(k), 0) (West 1992).\nSubsequently plaintiff attempted to resolve the matter of his reinstatement. On August 28, 1991, plaintiff, by letter, advised Assistant State\u2019s Attorney Scott that plaintiff was going to seek reinstatement and suggested that a meeting be held to resolve this matter prior to the filing of a civil suit. In his complaint, plaintiff alleged that Scott had always led him to believe that he would be reinstated even after the trial of the workers\u2019 compensation claim.\nOn September 12, 1991, plaintiff, by letter, presented Assistant State\u2019s Attorney John Carreon with a copy of a draft complaint and again requested a meeting to resolve the matter of reinstatement. On October 1, 1991, Carreon telephoned plaintiff and requested information regarding plaintiffs medical release to return to work. On October 3, 1991, plaintiff forwarded the requested material to defendant. On February 12, 1992, plaintiff sent a letter to the administrative assistant of the Cook County Board president and asked for his intercession in resolving the matter of plaintiffs reinstatement. No reply was ever received.\nOn April 6, 1992, plaintiff filed a complaint in equity alleging retaliatory discharge. In response, defendant filed a section 2 \u2014 619(5) motion to dismiss, which provides for the involuntary dismissal of an action \"not commenced within the time limited by law.\u201d (735 ILCS 5/2 \u2014 619(5) (West 1992).) In its motion to dismiss, defendant asserted that plaintiff\u2019s cause of action accrued in April 1990 when he was terminated from his employment, that the one-year limitations period stated in the Act applies to plaintiff\u2019s action and that plaintiff\u2019s complaint was filed two years (April 1992) after the cause of action accrued (April 1990).\nOn July 28, 1992, following a hearing, the trial court found that plaintiff\u2019s action sounded in tort, was governed by the Act and would be time barred except for a question of fact as to equitable estoppel. The trial court denied defendant\u2019s motion to dismiss and granted plaintiff leave to amend his complaint to allege the affirmative allegation of estoppel.\nPlaintiff subsequently filed a first amended complaint and based his estoppel argument upon the representations of defendant\u2019s agents and attorneys that he would be reinstated. Defendant responded with a section 2 \u2014 619(5) motion to dismiss plaintiff\u2019s first amended complaint.\nOn December 7, 1992, following a hearing regarding plaintiff\u2019s first amended complaint, the trial court granted defendant\u2019s motion to dismiss, found that plaintiff\u2019s action was time barred on April 22, 1991, and rejected plaintiff\u2019s estoppel arguments reasoning that there could not be reasonable reliance on the part of plaintiff because the law does not charge the State\u2019s Attorney with the authority to approve a settlement of the workers\u2019 compensation claim and the matters pendant to it. The trial court further found that even if the reliance was reasonable, there was a reasonable period of time, seven days, after plaintiff knew that the Cook County Board would not approve a settlement (April 15, 1991) to filejiis action within the one-year period (April 22, 1991).\nPlaintiff now appeals the orders entered on July 28, 1992, and December 7, 1992.\nPlaintiff first asserts that the trial court incorrectly applied the one-year statute of limitations in the Act to his retaliatory discharge claim. Plaintiff argues that his retaliatory discharge claim arises out of a contractual relationship and thus his cause of action is not an injury within the definition of injury in the Act. Plaintiff submits that he has sought damages which are contractual in nature, i.e., reinstatement and monetary damages for lost wages and fringe benefits, and that where a claim and the elements of damages sound in contract, the five-year statute of limitations for contract actions applies.\nDefendant contends that the Illinois Supreme Court has already held that a claim of retaliatory discharge is a tort and the Act applies. Boyles v. Greater Peoria Mass Transit District (1986), 113 Ill. 2d 545, 499 N.E.2d 435.\nUnder the Illinois Code of Civil Procedure, \"all civil actions not otherwise provided for\u201d are subject to a five-year statute of limitations. 735 ILCS 5/13 \u2014 205 (West 1992).\nOn the other hand, the Act imposes a one-year limitation period: \"No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. For purposes of this Article, the term 'civil action\u2019 includes any action, whether based upon the common law or statutes or Constitution of this State.\u201d 745 ILCS 10/8 \u2014 101 (West 1992).\nThe Act defines the term \"injury\u201d as follows:\n\" 'Injury\u2019 means death, injury to a person, or damage to or loss of property. It includes any other injury that a person may suffer to his person, reputation, character or estate which does not result from circumstances in which a privilege is otherwise conferred by law and which is of such a nature that it would be actionable if inflicted by a private person. 'Injury\u2019 includes any injury alleged in a civil action, whether based upon the Constitution of the United States or the Constitution of the State of Illinois, and the statutes or common law of Illinois or of the United States.\u201d 745 ILCS 10/1 \u2014 204 (West 1992).\nPlaintiff directs attention to two cases where the five-year limitations period was applied to retaliatory discharge actions by this court in Henon v. Lever Brothers Co. (1983), 114 Ill. App. 3d 608, 449 N.E.2d 196, and by the Federal district court in Berghoff v. R.J. Frisby Manufacturing Co., a Division of Western Capital Corp. (N.D. Ill. 1989), 720 F. Supp. 649. However, neither the Henon case nor the Berghoff case involved the Act. The defendant employers in both cases were private corporations, not public entities. Accordingly, the Act was neither raised nor applicable.\nRetaliatory discharge claims have consistently been recognized as torts. E.g., Boyles, 113 Ill. 2d 545, 499 N.E.2d 435; Midgett v. Sackett-Chicago, Inc. (1984), 105 Ill. 2d 143, 473 N.E.2d 1280; Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353; Sloan v. Jasper County Community Unit School District No. 1 (1988), 167 Ill. App. 3d 867, 522 N.E.2d 334; Spearman v. Exxon Coal USA, Inc. (7th Cir. 1994), 16 F.3d 722, 723 (\"the Supreme Court of Illinois treats retaliatory discharge as a tort\u201d); Peeler v. Village of Kingston Mines (7th Cir. 1988), 862 F.2d 135.\nIn Boyles, the discharged plaintiff filed a retaliatory discharge action against the employer defendant, a municipal corporation. The plaintiff sought both compensatory and punitive damages. The Illinois Supreme Court followed the express statutory dictate of the Act that \"a local public entity is not liable to pay punitive or exemplary damages.\u201d (745 ILCS 10/2 \u2014 102 (West 1992).) In light of this express prohibition, the supreme court held that the Act precludes the recovery of punitive damages in a retaliatory discharge case. Boyles, 113 Ill. 2d at 554.\nThe Boyles court also considered a second issue, i.e., \"whether a cause of action in tort for retaliatory discharge may exist absent punitive damages as an available remedy.\u201d (Boyles, 113 Ill. 2d at 554.) In addressing this second issue, the supreme court noted its prior decision where it concluded \"that a suit for retaliatory discharge is an action in tort, independent of an employee\u2019s contract or collective-bargaining agreement.\u201d (Boyles, 113 Ill. 2d at 554-55, citing Midgett, 105 Ill. 2d at 149.) The Boyles court held\n\"that the unavailability of punitive damages does not preclude the plaintiff from seeking compensatory damages for what the plaintiff claims was an improper termination of her employment. *** Under our holding, only the damages available are restricted; the cause of action in tort for retaliatory discharge remains unchanged.\u201d Boyles, 113 Ill. 2d at 555-56.\nWe find that plaintiff\u2019s cause of action in the present case is a tort within the meaning and purpose of the Act in light of the Illinois Supreme Court\u2019s determination in Boyles and Midgett.\nPlaintiff next asserts that even if the one-year statute of limitations applies, defendant should be precluded from asserting this defense under the theory of equitable estoppel. Plaintiff argues that defendant\u2019s conduct, when viewed in its totality, raises a reasonable inference sufficient to present questions of fact to be resolved by a trier of fact and to withstand a motion to dismiss. Plaintiff specifically relies on the three occasions where the assistant State\u2019s Attorney requested and received a continuance of plaintiff\u2019s workers\u2019 compensation claim before the Industrial Commission to investigate, evaluate and attempt to settle plaintiff\u2019s claim (September 19, 1990; December 13, 1990; March 20, 1991). Regarding the April 15, 1991, statement made by the assistant State\u2019s Attorney that the Cook County Board would not approve a settlement, plaintiff submits that it was not clear whether the statement referred only to the workers\u2019 compensation matter or solely to the retaliatory discharge claim or to both claims. Plaintiff maintains that defendant\u2019s attorney\u2019s conduct raises a reasonable inference that the issue of reinstatement would be resolved once the workers\u2019 compensation claim was decided.\nDefendant contends that the doctrine of equitable estoppel does not apply in the present case because the allegations in the amended complaint refer to settlement negotiations concerning plaintiff\u2019s workers\u2019 compensation claim, not the retaliatory discharge cause of action. Assuming that the conversations alleged in the amended complaint are related to plaintiff\u2019s retaliatory discharge cause of action, defendant contends that the allegations are so insufficient that, as a matter of law, estoppel does not apply to the present case because defendant\u2019s conduct cannot be said to have caused in plaintiff a reasonable reliance that the case would be settled.\nEstoppel against public bodies is generally not favored and is allowed in only rare and unusual circumstances. (Miller v. Town of Cicero (1992), 225 Ill. App. 3d 105, 590 N.E.2d 490; Central Transport, Inc. v. Village of Hillside (1991), 210 Ill. App. 3d 499, 568 N.E.2d 1359 (the defendant village could not deny the validity of its own ordinance).) The doctrine of estoppel is invoked against a public body only when it is necessary to prevent fraud and injustice. Jack Bradley, Inc. v. Department of Employment Security (1991), 146 Ill. 2d 61, 81, 585 N.E.2d 123; Beverly Bank v. County of Cook (1987), 157 Ill. App. 3d 601, 510 N.E.2d 941.\nMoreover, estoppel against a public body is especially prohibited when public revenues are involved. (Jack Bradley, 146 Ill. 2d at 81.) A county pays its employees from public revenues. (Rose v. Rosewell (1987), 163 Ill. App. 3d 646, 652, 516 N.E.2d 885.) As a decrease or increase in a county employee\u2019s salary was held to relate to the public revenue in Rose, so also would the elimination or reinstatement of the salary of plaintiff relate to the public revenue in the present case.\nTo invoke equitable estoppel against a municipality there must be an affirmative act on the part of the municipality and the inducement of substantial reliance by the affirmative act. Lindahl v. City of Des Plaines (1991), 210 Ill. App. 3d 281, 295, 568 N.E.2d 1306; Chicago Food Management, Inc. v. City of Chicago (1987), 163 Ill. App. 3d 638, 516 N.E.2d 880.\nThe affirmative act which prompts a party\u2019s reliance must be an act of the public body itself such as a legislative enactment rather than the unauthorized acts of a ministerial officer or a ministerial misinterpretation. (Lindahl, 210 Ill. App. 3d at 295; American National Bank & Trust Co. v. Village of Arlington Heights (1983), 115 Ill. App. 3d 342, 347-48, 450 N.E.2d 898.) A municipality cannot be estopped by an act of its agent beyond the authority expressly conferred upon that official. (Lindahl, 210 Ill. App. 3d at 295; Rose, 163 Ill. App. 3d at 651-52.) If a municipality were held bound through equitable estoppel by an unauthorized act of a governmental employee, then the municipality would remain helpless to remedy errors and forced to permit violations \"to remain in perpetuity.\u201d City of Chicago v. Unit One Corp. (1991), 218 Ill. App. 3d 242, 246, 578 N.E.2d 194, citing Lake Shore Riding Academy, Inc, v. Daley (1976), 38 Ill. App. 3d 1000, 1003, 350 N.E.2d 17.\nRepresentations advanced by an attorney have been held insufficient to bind a municipality under the doctrine of estoppel. Marx v. State (1988), 165 Ill. App. 3d 332, 519 N.E.2d 82 (assistant Attorney General); In re Application of Critton (1985), 139 Ill. App. 3d 719, 487 N.E.2d 726 (private attorney).\nIn light of the above principles, we find that plaintiffs amended complaint fails, as a matter of law, to establish an estoppel because the statements made by assistant State\u2019s Attorneys cannot be considered affirmative acts on the part of defendant, especially when the assistant State\u2019s Attorneys\u2019 involvement concerned the workers\u2019 compensation claim, not the separate matter of the retaliatory discharge claim. Moreover, the Cook County Board, not the assistant State\u2019s Attorneys, had the authority to resolve plaintiffs claims. In addition, estoppel is particularly inappropriate where public revenues are involved. The equities in this case simply do not support the application of estoppel.\nAffirmed.\nRIZZI and CERDA, JJ., concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Patrick B. Nicholson, of Cullen, Haskins, Nicholson & Menchetti, P.C., of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Karen Covey and John J. Murphy, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "BRUNO J. HALLECK, Plaintiff-Appellant, v. THE COUNTY OF COOK, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 1\u201493\u20140057\nOpinion filed June 29, 1994.\nPatrick B. Nicholson, of Cullen, Haskins, Nicholson & Menchetti, P.C., of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Karen Covey and John J. Murphy, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0887-01", "first_page_order": 905, "last_page_order": 912 }