{ "id": 1352938, "name": "RAINTREE HOMES, INC., et al., Plaintiffs-Appellants, v. THE VILLAGE OF KILDEER, Defendant-Appellee", "name_abbreviation": "Raintree Homes, Inc. v. Village of Kildeer", "decision_date": "1999-01-22", "docket_number": "No. 2\u201498\u20140176", "first_page": "304", "last_page": "308", "citations": [ { "type": "official", "cite": "302 Ill. App. 3d 304" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "184 Ill. 2d 290", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926988 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-2d/184/0290-01" ] }, { "cite": "295 Ill. App. 3d 90", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45767 ], "year": 1998, "pin_cites": [ { "page": "95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0090-01" ] }, { "cite": "95 Ill. App. 3d 765", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3114517 ], "year": 1981, "pin_cites": [ { "page": "769-70" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0765-01" ] }, { "cite": "19 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2742567 ], "year": 1960, "pin_cites": [ { "page": "453-55" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/19/0448-01" ] }, { "cite": "110 Ill. App. 3d 907", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2997856 ], "year": 1982, "pin_cites": [ { "page": "913" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0907-01" ] }, { "cite": "90 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3158605 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "438" }, { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0435-01" ] }, { "cite": "376 Ill. 80", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2540826 ], "weight": 2, "year": 1941, "pin_cites": [ { "page": "86" }, { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/ill/376/0080-01" ] } ], "analysis": { "cardinality": 476, "char_count": 9212, "ocr_confidence": 0.785, "pagerank": { "raw": 8.668540299397274e-08, "percentile": 0.4920008849936811 }, "sha256": "558400ca373c0d42a030abf6a752b078f955208dcbf166b476709a8de1f9b13d", "simhash": "1:86cfcd204f2c5ada", "word_count": 1502 }, "last_updated": "2023-07-14T17:49:29.885307+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RAINTREE HOMES, INC., et al., Plaintiffs-Appellants, v. THE VILLAGE OF KILDEER, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE RAPP\ndelivered the opinion of the court:\nPlaintiffs, Raintree Homes, Inc., and Raintree Builders, Inc., appeal the judgment of the circuit court of Lake County dismissing their amended complaint for declaratory judgment and other relief against defendant, Village of Kildeer (the Village). The complaint sought as other relief an order requiring defendant to refund certain impact fees. Plaintiffs contend that the trial court erred in holding that their cause of action was barred by the one-year statute of hmitations pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/1\u2014101 et seq. (West 1996)). We reverse and remand.\nThe Village is an Illinois municipality located in Lake County. Plaintiffs are two corporations engaged in building residential homes in the Village. Plaintiffs alleged that prior to December 19, 1995, the Village adopted by ordinance (the original ordinance) a schedule of impact fees required to be paid as a condition of obtaining a building permit for a residential unit.\nIn December 1995, a letter was sent to the Village by a Northern Illinois Homebuilders Association representative who opined that the fees imposed by the original ordinance would not survive a constitutional challenge and offered to discuss this opinion with the Village. On March 4, 1996, the Village amended its fee ordinance, repealing the original ordinance and adopting a different fee schedule (the amended ordinance).\nRaintree Homes, Inc., filed suit against the Village on March 24, 1997, a little more than one year after the repeal of the original ordinance. Its complaint requested a declaratory judgment against the Village\u2019s fees and a refund of unspecified fees paid by Raintree Homes, Inc. The Village filed a motion to dismiss the complaint of Raintree Homes, Inc., which was granted and is not a subject of this appeal.\nThereafter, on August 4, 1997, Raintree Homes, Inc., joined by Raintree Builders, Inc., filed their first amended complaint. Plaintiffs alleged that they paid fees to the Village under one or both of the ordinances in order to obtain building permits from the Village. Plaintiffs alleged that these fees were unconstitutional and beyond the Village\u2019s statutory authority. On January 8, 1998, the trial court found that plaintiffs had pleaded a \u201ctort type action\u201d and that the action was time-barred under the one-year statute of limitations for civil actions filed against a local public entity. The trial court therefore granted the Village\u2019s motion to dismiss plaintiffs\u2019 first amended complaint. Plaintiffs timely appealed.\nThe Village filed a motion to strike certain portions of plaintiffs\u2019 brief. This court ordered the motion taken with the case. Thus, before we consider the merits of the appeal, we will first address the Village\u2019s motion to strike.\nThe Village moves this court, pursuant to Supreme Court Rule 361 (155 Ill. 2d R. 361), to strike from plaintiffs\u2019 brief argument B, relating to the \u201cvoluntary payment doctrine,\u201d and those parts of argument A that refer to the \u201cripeness doctrine\u201d on the ground that these issues are not properly before this court. Plaintiffs have failed to file a response to the Village\u2019s motion to strike.\nIn support of its motion, the Village argues that the trial court\u2019s order, which is the subject of this appeal, ruled only on the statute of limitations under the Tort Immunity Act. The trial court found that the Tort Immunity Act\u2019s one-year statute of limitations was applicable to plaintiffs\u2019 claim. The Village contends that, because the trial court did not specifically address the issues of the \u201cvoluntary payment doctrine\u201d or the \u201cripeness doctrine,\u201d these issues have not been preserved for review. We agree with defendant.\nIn order to preserve an issue for review, an appellant must first obtain either a ruling on the issue or a refusal to rule thereon from the trial court. See Goodrich v. Sprague, 376 Ill. 80, 86 (1941). As our supreme court held in Goodrich:\n\u201cThe office of Appellate Court is to review rulings, orders, or judgments of the court below, contained in the record, and matters not ruled upon by the inferior court are not subject to the consideration of the Appellate Court unless the lower court\u2019s failure to rule is made the subject of an assignment of error, in which case the propriety of such failure is the question presented to the Appellate Court and not the merits of the matter upon which the trial court refuses to act. In other words, the Appellate Court\u2019s jurisdiction is appellate, and extends only to those matters in controversy which have been ruled upon by the trial court.\u201d Goodrich, 376 Ill. at 86.\nIn the absence of any ruling or decision by the trial court on the applicability of the \u201cvoluntary payment doctrine\u201d or the \u201cripeness doctrine\u201d or the trial court\u2019s refusal to rule on these issues, these issues are not subject to the consideration of this court. Accordingly, we find that the \u201cvoluntary payment doctrine\u201d and the \u201cripeness doctrine\u201d are issues not properly before this court and thus strike from plaintiffs\u2019 brief argument B, relating to the \u201cvoluntary payment doctrine,\u201d and those parts of argument A that refer to the \u201cripeness doctrine.\u201d\nWe now address the merit of plaintiffs\u2019 appeal. Plaintiffs argue that the trial court erroneously determined that their claims were barred by the running of the statute of limitations. The trial court applied the one-year statute of limitations contained in section 8 \u2014 101 of the Tort Immunity Act (745 ILCS 10/8\u2014101 (West 1996)) to determine that plaintiffs\u2019 amended complaint was time-barred. Plaintiffs contend that the Tort Immunity Act applies only to tort claims and is therefore inapplicable to their constitutional claims. Defendant responds that section 8 \u2014 101 extends to any civil action brought against a local public entity.\nWhen considering a motion to dismiss, a reviewing court must accept as true all well-pleaded facts as well as inferences that fairly may be drawn from those facts. Sharps v. Stein, 90 Ill. App. 3d 435, 438 (1980). A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved that would entitle the plaintiff to relief. Sharps, 90 Ill. App. 3d at 438. A pleading need show only the possibility of recovering, not an absolute certainty, and it should not be dismissed unless it appears that the pleader in no event would be permitted to recover. Neuman v. City of Chicago, 110 Ill. App. 3d 907, 913 (1982).\nPlaintiffs\u2019 amended complaint alleges that the required payment of impact fees prior to the issuance of building permits by the Village is beyond the Village\u2019s statutory authority and unconstitutional. Plaintiff argues that its claim is not based upon tort but rather is a constitutional challenge.\nA developer is entitled to a refund of impact fees paid that are not specifically and uniquely attributable to his activity. See Rosen v. Village of Downers Grove, 19 Ill. 2d 448, 453-55 (1960); see also La Salle National Bank v. Village of Brookfield, 95 Ill. App. 3d 765, 769-70 (1981). Such a claim is based upon an abuse of governmental authority and is not a tort action. River Park, Inc. v. City of Highland Park, 295 Ill. App. 3d 90, 95 (1998), rev\u2019d, 184 Ill. 2d 290 (1998). Our supreme court reversed River Park on grounds of res judicata but specifically declined to address this court\u2019s holding that section 8 \u2014 101 did not apply to a claim of abuse of governmental power. We decline to revisit our holding and reject defendant\u2019s argument that the Tort Immunity Act\u2019s one-year statute of limitations applies to nontortious civil actions.\nSection 13 \u2014 205 of the Code of Civil Procedure provides that \u201call civil actions not otherwise provided for[ ] shall be commenced within 5 years next after the cause of action accrued.\u201d 735 ILCS 5/13\u2014205 (West 1996). Raintree Homes, Inc., filed its complaint on March 24, 1997. The amended complaint challenged the constitutionality of ordinances that were in effect within five years from the filing of the original complaint. It is clear that the original complaint was filed within the five-year period of limitations under section 13 \u2014 205 of the Code of Civil Procedure (see 735 ILCS 5/2\u2014616(b) (West 1996) (\u201can amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended\u201d)). Accordingly, we hold that the trial court erred in dismissing plaintiffs\u2019 amended complaint as untimely.\nFor the foregoing reasons, the judgment of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nGEIGER and McLAREN, JJ., concur.", "type": "majority", "author": "JUSTICE RAPP" } ], "attorneys": [ "Margaret M. Borcia, of Morrison & Morrison, P.C., of Waukegan, and Michael McGurn, of McGurn & Associates, Ltd., of Naperville, for appellants.", "Patrick A. Lucansky, Gerard E. Dempsey and Rinda Y. Allison, all of Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "RAINTREE HOMES, INC., et al., Plaintiffs-Appellants, v. THE VILLAGE OF KILDEER, Defendant-Appellee.\nSecond District\nNo. 2\u201498\u20140176\nOpinion filed January 22, 1999.\nMargaret M. Borcia, of Morrison & Morrison, P.C., of Waukegan, and Michael McGurn, of McGurn & Associates, Ltd., of Naperville, for appellants.\nPatrick A. Lucansky, Gerard E. Dempsey and Rinda Y. Allison, all of Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellee." }, "file_name": "0304-01", "first_page_order": 322, "last_page_order": 326 }