{ "id": 4267296, "name": "THE VILLAGE OF ROSELLE, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee", "name_abbreviation": "Village of Roselle v. Commonwealth Edison Co.", "decision_date": "2006-11-07", "docket_number": "No. 2\u201406\u20140294", "first_page": "1097", "last_page": "1119", "citations": [ { "type": "official", "cite": "368 Ill. App. 3d 1097" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "194 Ill. App. 3d 303", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498499 ], "year": 1990, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0303-01" ] }, { "cite": "334 Ill. App. 3d 926", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521909 ], "year": 2002, "pin_cites": [ { "page": "929" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0926-01" ] }, { "cite": "309 Ill. App. 3d 707", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349546 ], "year": 1999, "pin_cites": [ { "page": "714-15", "parenthetical": "noting that the plaintiffs complaint alleged that the defendant had a policy of preserving equipment involved in accidents" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0707-01" ] }, { "cite": "213 Ill. 2d 329", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448810 ], "year": 2004, "pin_cites": [ { "page": "338", "parenthetical": "pointing out that the plaintiff never contacted the defendant to ask it to preserve evidence" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0329-01" ] }, { "cite": "341 Ill. App. 3d 212", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5574998 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "215" }, { "page": "215" }, { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0212-01" ] }, { "cite": "294 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35349 ], "weight": 6, "year": 1997, "pin_cites": [ { "page": "9" }, { "page": "11" }, { "page": "11" }, { "page": "11-12", "parenthetical": "remarking that in addition to the plaintiffs request for the X rays, there was evidence that the defendant had placed the X rays in a segregated litigation file" }, { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0001-01" ] }, { "cite": "341 Ill. App. 3d 327", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5575170 ], "year": 2003, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0327-01" ] }, { "cite": "166 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198888 ], "weight": 11, "year": 1995, "pin_cites": [ { "page": "192-93" }, { "page": "194" }, { "page": "194-95" }, { "page": "195" }, { "page": "195" }, { "page": "195" }, { "page": "195" }, { "page": "196" }, { "page": "196" }, { "page": "197" }, { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0188-01" ] }, { "cite": "366 Ill. App. 3d 715", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264420 ], "year": 2006, "pin_cites": [ { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/366/0715-01" ] }, { "cite": "352 Ill. App. 3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5454636 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "853-54" }, { "page": "854" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/352/0847-01" ] }, { "cite": "352 U.S. 59", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159339 ], "weight": 3, "year": 1956, "pin_cites": [ { "page": "64" }, { "page": "132" }, { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/us/352/0059-01" ] }, { "cite": "219 Ill. 2d 182", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3598302 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "343", "parenthetical": "Freeman, J., dissenting upon denial of rehearing, joined by Kilbride, J." }, { "page": "348", "parenthetical": "Freeman, J., dissenting upon denial of rehearing, joined by Kilbride, J." } ], "opinion_index": 0, "case_paths": [ "/ill-2d/219/0182-01" ] }, { "cite": "355 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599911 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0001-01" ] }, { "cite": "106 Ill. 2d 135", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138416 ], "year": 1985, "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0135-01" ] }, { "cite": "213 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448502 ], "year": 2004, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0178-01" ] }, { "cite": "152 Ill. 2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602963 ], "year": 1992, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0082-01" ] }, { "cite": "362 Ill. App. 3d 93", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260535 ], "year": 2005, "pin_cites": [ { "parenthetical": "involving applicability of a statute of repose raised for the first time by the defendant in the reply in support of its motion to dismiss" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/0093-01" ] }, { "cite": "353 Ill. App. 3d 378", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3362731 ], "year": 2004, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0378-01" ] }, { "cite": "307 Ill. App. 3d 233", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173512 ], "year": 1999, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0233-01" ] }, { "cite": "159 Ill. App. 3d 1076", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3612025 ], "year": 1987, "pin_cites": [ { "parenthetical": "involving claim that public utility improperly charged municipality for electricity to streetlights that were out of service" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/1076-01" ] }, { "cite": "52 Ill. App. 3d 167", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3386473 ], "year": 1977, "pin_cites": [ { "parenthetical": "holding that ICC has exclusive jurisdiction over customers' complaints; complaints involved claim of excessive rates in that customers alleged that telephone company was levying municipal utility tax on collect and credit card calls not originating within city limits" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0167-01" ] }, { "cite": "94 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3124492 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0172-01" ] }, { "cite": "363 Ill. App. 3d 543", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5765737 ], "year": 2006, "pin_cites": [ { "page": "548", "parenthetical": "noting that a statute should be construed so as to render no part of the statute meaningless or superfluous" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/0543-01" ] }, { "cite": "44 Ill. App. 3d 665", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2815842 ], "weight": 4, "year": 1976, "pin_cites": [ { "page": "670-71" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0665-01" ] }, { "cite": "351 Ill. App. 3d 583", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083832 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "585" }, { "page": "586" }, { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0583-01" ] }, { "cite": "342 Ill. App. 3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472650 ], "year": 2003, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0666-01" ] }, { "cite": "296 Ill. App. 3d 810", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222614 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "813" }, { "page": "813" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0810-01" ] }, { "cite": "363 Ill. App. 3d 1091", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5766878 ], "year": 2006, "pin_cites": [ { "page": "1094" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/1091-01" ] }, { "cite": "347 Ill. App. 3d 627", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3949709 ], "year": 2004, "pin_cites": [ { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0627-01" ] }, { "cite": "356 Ill. App. 3d 1048", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3748860 ], "year": 2005, "pin_cites": [ { "page": "1052-53" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/1048-01" ] } ], "analysis": { "cardinality": 1616, "char_count": 56289, "ocr_confidence": 0.764, "pagerank": { "raw": 1.3394484397283922e-07, "percentile": 0.6308197891073959 }, "sha256": "2e96aa530e6c8043b233f90b7942986b6b8f6d60ba58eba45da3665f685c0e4e", "simhash": "1:af6ef584e32c55e0", "word_count": 9227 }, "last_updated": "2023-07-14T20:06:43.500571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE VILLAGE OF ROSELLE, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE GEOMETER\ndelivered the opinion of the court:\nPlaintiff, the Village of Roselle (Village), filed a two-count complaint against defendant, Commonwealth Edison Company (ComEd), in the circuit court of Du Page County. Count I of the complaint sought an accounting related to an electric tax imposed by the Village. Count II of the complaint purported to state a cause of action for spoliation of evidence. The circuit court granted ComEd\u2019s motion to dismiss count I, finding that the Illinois Commerce Commission (ICC) had exclusive jurisdiction over the accounting claim. The circuit court also granted ComEd\u2019s motion to dismiss count II, finding that the issue would be more properly resolved by the ICC as a result of its jurisdiction over the underlying accounting claim and that, in any event, the Village failed to sufficiently plead a claim for spoliation of evidence. The Village filed a timely appeal from the trial court order. For the reasons that follow, we reverse the trial court\u2019s dismissal of the Village\u2019s accounting claim. We affirm the trial court\u2019s dismissal of the Village\u2019s claim for spoliation of evidence, but we remand that count to allow the Village to replead.\nI. BACKGROUND\nThe Village and ComEd are parties to a franchise agreement, pursuant to which ComEd provides electrical utility service to the Village. See Roselle Ordinance No. 92 \u2014 2222 (eff. July 29, 1992). Pursuant to section 8 \u2014 11\u20142(3) of the Illinois Municipal Code (Municipal Code) (65 ILCS 5/8 \u2014 11\u20142(3) (West 1998)), the Village adopted an ordinance imposing a tax (electric tax) upon the use or consumption of electricity within its borders. Roselle Code of Ordinances \u00a720 \u2014 38 (eff. April 26, 1999). The tax constitutes a debt owed to the Village by ComEd. 65 ILCS 5/8 \u2014 11\u20142(c) (West 1998); Roselle Code of Ordinances \u00a720 \u2014 42 (eff. April 26, 1999). However, section 9 \u2014 221 of the Public Utilities Act (Act) (220 ILCS 5/9 \u2014 221 (West 1998)) authorizes ComEd to levy upon its customers \u201can additional charge equal to the sum of (1) an amount equal to such municipal tax, or any part thereof (2) 3% of such tax, or any part thereof, as the case may be, to cover costs of accounting, and (3) an amount equal to the increase in taxes and other payments to governmental bodies resulting from the amount of such additional charge.\u201d\nOn September 22, 2005, the Village filed a two-count complaint against ComEd alleging that it was due unpaid electric tax from ComEd. As noted previously, count I purported to state a cause , of action for an accounting, while count II purported to state a cause of action for spoliation of evidence. The following factual allegations are taken from the Village\u2019s complaint.\nOn or about February 11, 2005, the Village\u2019s finance director sent to ComEd a letter requesting \u201ca listing of addresses from [ComEd] where ComEd is collecting electric utility tax on behalf of the Village.\u201d The Village followed up its initial correspondence with a pair of letters dated February 28, 2005. The first letter, signed by the Village administrator, informed ComEd that the Village had retained Azavar Technologies (the auditors) \u201cto assist [the Village] in a full and comprehensive audit of each of [its] utility tax payers.\u201d The second letter, signed by the Village\u2019s director of finance, notified ComEd of the Village\u2019s \u201cintent to perform an audit of the franchise fees/utility tax paid to the Village.\u201d (Emphasis in original.)\nThereafter, the auditors discussed with representatives from ComEd the terms of the audit. Among the conditions imposed by ComEd was that the auditors could view data only while at ComEd\u2019s offices or facilities. ComEd also insisted that the auditors not copy in any manner or remove any data from ComEd\u2019s facilities. As a result of these conditions, ComEd provided the auditors with a ComEd-owned laptop computer, which the auditors were to use to review the electronically-stored data. Moreover, because the auditors were prohibited from copying any data in any manner, the auditors used the ComEd-provided computer to input work product relative to the audit. The Village requested data from 72 months, but ComEd provided partial data from only one of those months. This partial data consisted of three individual \u201csnapshots,\u201d which represented the same fields of data culled at three different points in time and which yielded three distinct compilations of data that could be compared. Based on the partial data, the auditors \u201cwere able to draw certain conclusions regarding fluctuations in taxed accounts, which led the [auditors] to the conclusion that ComEd owed unpaid tax monies to the Village.\u201d The Village further claimed that it has \u201creason to believe that ComEd is not properly designating premises relating to changes in the corporate boundaries of the Village.\u201d\nAt the time the auditors made their conclusions, the audit had been conducted under the auspices of ComEd\u2019s customer marketing systems department. However, responsibility for audit supervision was subsequently shifted to ComEd\u2019s tax department. Sometime later, the auditors sought to review the data at the tax department, but were informed that the laptop they had been using had been lost. Although the laptop was located a few days later, two of the three \u201csnapshots,\u201d as well as the auditors\u2019 work product, had been irretrievably erased at the request of a ComEd executive. On June 23, 2005, the auditors, acting as the Village\u2019s agent, sent to ComEd a letter demanding an accounting. ComEd responded via a letter dated July 13, 2005, refusing to allow the accounting requested by the Village.\nWith respect to count I, the Village prayed for an order compelling ComEd:\n\u201c(a) To account to the Village of Roselle for those dollar amounts billed and subsequent taxes-per-premise within the corporate boundaries of the Village of Roselle ***; to which city the tax is being remitted; how much tax has been remitted on a monthly basis; and when tax began being remitted. This data should be provided on a month-by-month basis per-premise, and include a notation for which accounts are listed as tax exempt and when any exemption began, for the seventy-two (72) months prior to February 11, 2005;\n(b) To account to the Village of Roselle for such other or further or different data and information that becomes necessary for the subsequent investigation or verification of those discrepancies discovered after an audit of the information provided in part (a); and\n(c) To pay the Village of Roselle all sums found due to the accounting.\u201d\nWith respect to count II, the Village alleged that it was the duty of ComEd \u201cto exercise ordinary care and caution to protect and preserve the integrity of the data, information, and work product that was used and created by the Auditors for purposes of the audit by the Village,\u201d especially since ComEd prohibited that the information be copied in any manner and required that the information be reviewed and stored at ComEd facilities. The Village further alleged that ComEd was responsible for one or more \u201ccareless, negligent, willful, or intentional acts and/or omissions\u201d related to the loss of the data and that, as a direct and proximate result of ComEd\u2019s conduct, the Village \u201cis unable to prove the underlying action for Accounting.\u201d\nComEd filed a motion to dismiss both counts. ComEd argued that the Village\u2019s accounting claim should be dismissed pursuant to section 2 \u2014 619(a)(1) of the Code of Civil Procedure (Code) (735 ILCS 5/2\u2014 619(a)(1) (West 2004)) because state law vests the ICC with exclusive jurisdiction to regulate a public utility\u2019s collection of a municipal utility tax, and the Village has not exhausted its administrative remedies. See 220 ILCS 5/9 \u2014 252 (West 2004). ComEd further argued that the Village\u2019s spoliation-of-evidence count should be dismissed pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 2004)) because the Village failed to establish the required elements for such a claim. The Village responded that the ICG\u2019s exclusive jurisdiction is limited to claims that a public utility is charging an excessive rate for its services, and this is not such a claim. The Village also insisted that it pled all elements necessary to state a claim for negligent spoliation of evidence.\nThe trial court granted ComEd\u2019s motion to dismiss both counts. The court found that the ICC had exclusive jurisdiction over the accounting claim. Having so decided, the court remarked that \u201cit would seem *** that the issue of spoliation, if any there be, should also go to the ICC.\u201d The court later voiced its agreement with ComEd\u2019s contention that the spoliation count was factually insufficient, but reiterated that the spoliation claim was \u201can ancillary matter *** which should be first determined by the [ICC].\u201d The Village appealed.\nII. ANALYSIS\nBefore addressing the merits of this appeal, we point out what we perceive as a gross violation of Supreme Court Rule 341 (210 Ill. 2d R. 341) by ComEd\u2019s counsel. Rule 341 provides that if the appellee opts to include a statement of facts in its brief, the statement of facts shall contain \u201cthe facts necessary to an understanding of the case, stated accurately and fairly without argument or comment, and with appropriate reference to the pages of the record on appeal.\u201d (Emphasis added.) 210 Ill. 2d R. 341(e)(6). Upon review of ComEd\u2019s brief, we conclude that, in violation of Rule 341, its statement of facts contains argument. For example, counsel asserts that ComEd is required'by law to protect confidential customer information. Counsel goes on to quote the statutes that purportedly support ComEd\u2019s position and to argue why the information requested by the Village would run afoul of these statutes. Counsel also vigorously argues in the statement of facts that the electric tax is not governed by the franchise agreement between ComEd and the Village. We disregard these and other portions of ComEd\u2019s statement of facts that violate Rule 341 (see Hamilton v. Conley, 356 Ill. App. 3d 1048, 1052-53 (2005)), and we admonish counsel for ComEd to comply with the supreme court rules in the future.\n1. Accounting Count\nOn appeal, the Village acknowledges that, pursuant to section 9 \u2014 252 of the Act (220 ILCS 5/9 \u2014 252 (West 2004)), the ICC has exclusive jurisdiction over complaints concerning \u201crates\u201d or \u201ccharges\u201d that are \u201cexcessive\u201d or \u201cunjustly discriminatory.\u201d However, according to the Village, its accounting claim does not fall within this category. Rather, the Village insists, its complaint is one for civil damages and is cognizable in the circuit court pursuant to section 5 \u2014 201 of the Act (220 ILCS 5/5 \u2014 201 (West 2004)). ComEd responds that the trial court correctly determined that the ICC should resolve the issue raised in count I of the Village\u2019s complaint. According to ComEd, the electric tax imposed by the Village constitutes a \u201crate\u201d or \u201ccharge,\u201d which is governed by ComEd\u2019s tariffs on file with the ICC. ComEd further asserts that count I of the Village\u2019s complaint constitutes a claim that the \u201ccharge\u201d is \u201cunjustly discriminatory.\u201d Thus, ComEd reasons, the ICC has exclusive jurisdiction over this matter, pursuant to section 9 \u2014 252 of the Act, and the trial court correctly dismissed count I of the Village\u2019s complaint.\nComEd\u2019s motion to dismiss the Village\u2019s accounting claim was brought pursuant to section 2 \u2014 619(a)(1) of the Code (735 ILCS 5/2\u2014 619(a)(1) (West 2004)). A section 2 \u2014 619 motion to dismiss admits the legal sufficiency of the complaint and raises defects, defenses, or other matters that act to defeat the claim. Cohen v. McDonald\u2019s Corp., 347 Ill. App. 3d 627, 632 (2004). In particular, section 2 \u2014 619(a)(1) of the Code provides for the involuntary dismissal of a cause of action, based on the trial court\u2019s lack of subject matter jurisdiction. We review de novo a dismissal based on section 2 \u2014 619(a)(1) of the Code. In re Marriage of Diaz, 363 Ill. App. 3d 1091, 1094 (2006).\nWe begin our analysis with the relevant provisions of the Act. According to ComEd, section 9 \u2014 252 of the Act (220 ILCS 5/9 \u2014 252 (West 2004)) vests the ICC with exclusive jurisdiction over the Village\u2019s accounting action. That provision provides in part:\n\u201cWhen complaint is made to the [ICC] concerning any rate or other charge of any public utility and the [ICC] finds, after a hearing, that the public utility has charged an excessive or unjustly discriminatory amount for its product, commodity or service, the [ICC] may order that the public utility make due reparation to the complainant therefor, with interest at the legal rate from the date of payment of such excessive or unjustly discriminatory amount.\u201d 220 ILCS 5/9 \u2014 252 (West 2004).\nUnder this provision, the ICC has exclusive jurisdiction over complaints that involve rates or other charges of any public utility, when such rates or charges are alleged to be excessive or unjustly discriminatory. Village of Evergreen Park v. Commonwealth Edison Co., 296 Ill. App. 3d 810, 813 (1998). It necessarily follows that a circuit court has jurisdiction only on administrative review of issues involving excessive or unjustly discriminatory rates or charges. Russell v. Kinney Contractors, Inc., 342 Ill. App. 3d 666, 671 (2003); Village of Evergreen Park, 296 Ill. App. 3d at 813.\nSection 9 \u2014 252, however, does not foreclose the circuit court from hearing all claims involving a public utility or arising under the Act. In this regard, section 5 \u2014 201 of the Act, entitled \u201cCivil Damages,\u201d provides in part:\n\u201cIn case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by way of punishment. An action to recover for such loss, damage or injury may be brought in the circuit court by any person or corporation.\u201d (Emphasis added.) 220 ILCS 5/5 \u2014 201 (West 2004).\nFlournoy v. Ameritech, 351 Ill. App. 3d 583 (2004), is the most recent case discussing the interplay between sections 5 \u2014 201 and 9 \u2014 252 of the Act. In Flournoy, the plaintiff was an inmate at a prison at which Ameritech provided telephone service. The plaintiff often made collect calls from the prison but would later reimburse the recipient for the cost of those calls. The plaintiff filed in circuit court a complaint against Ameritech, alleging that Ameritech deliberately cut off his collect calls only minutes after they were accepted. According to the plaintiff, this forced him to make another collect call to the same person, thereby resulting in multiple charges. The trial court granted Ameritech\u2019s motion to dismiss the complaint. On appeal, the reviewing court rejected Ameritech\u2019s contention that the circuit court lacked jurisdiction to hear the complaint, stating:\n\u201cIn determining whether an action falls within the exclusive jurisdiction of the [ICC], courts have consistently focused on the nature of the relief ***. [Citations.] If the plaintiffs action is for reparations, the [ICC] has exclusive jurisdiction. However, if the action is for civil damages, then the circuit court may hear the case. [Citations.]\nA claim is for reparations when the essence of the claim is that a utility has charged too much for a service. [Citations.] In contrast, a claim is for ordinary civil damages when the essence of the claim is not that the utility has excessively charged, but rather that the utility has done something else to wrong the plaintiff. [Citations.]\u201d Flournoy, 351 Ill. App. 3d at 585.\nApplying these definitions, the court ultimately concluded that the plaintiffs claim was one for civil damages. In so holding, the court noted that the plaintiff did not contest the actual rates charged or claim that they were excessive. Flournoy, 351 Ill. App. 3d at 586. Rather, the court determined, the plaintiffs claim involved damages due to alleged fraud and negligence that resulted in multiple charges and fees. Flournoy, 351 111. App. 3d at 586.\nIn this case, the Village\u2019s accounting claim does not fall within the exclusive jurisdiction of the ICC, because it does not concern a \u201crate or other charge of a public utility\u201d that is alleged to be \u201cexcessive\u201d or \u201cunjustly discriminatory.\u201d The Act defines the term \u201crate\u201d as follows:\n\u201c \u2018Rate\u2019 includes every individual or joint rate, fare, toll, charge, rental or other compensation of any public utility or any two or more such individual or joint rates, fares, tolls, charges, rental or other compensation of any public utility or any schedule or tariff thereof, and any rule, regulation, charge, practice or contract relating thereto.\u201d 220 ILCS 5/3 \u2014 116 (West 2004).\nThe Act does not define the term \u201cother charge.\u201d Clearly, however, the electric tax in this case cannot be characterized as a \u201crate\u201d or \u201cother charge,\u201d as the tax is not imposed by ComEd, the public utility. Authorization for the electric tax is derived not from the Act, but from section 8 \u2014 11\u20142(3) of the Municipal Code (65 ILCS 5/8 \u2014 11\u20142(3) (West 1998)). The Village enacted an ordinance imposing the electric tax in accordance with this provision. Roselle Code of Ordinances \u00a720 \u2014 38 et seq. (eff. April 26, 1999). The Act itself refers to a tax imposed pursuant to section 8 \u2014 11\u20142 of the Municipal Code as \u201ca tax on [a] public utility.\u201d 220 ILCS 5/9 \u2014 221 (West 1998). Moreover, the incidence of the tax rests on the utility (Commonwealth Edison Co. v. Community Unit School District No. 200, 44 Ill. App. 3d 665, 670-71 (1976)) and the tax \u201cconstitute^] a debt owed to the municipality by such person delivering electricity.\u201d 65 ILCS 5/8 \u2014 11\u20142(c) (West 1998). These additional attributes lead us to conclude that the electric tax is not a \u201crate or other charge of a public utility.\u201d\nComEd points out that the Act allows it to seek from its customers reimbursement for the electric tax plus administrative expenses as \u201can additional charge equal to the sum of\u201d the tax and related expenses. 220 ILCS 5/9 \u2014 221 (West 1998). ComEd reasons that because the Act refers to a municipal utility tax as a \u201ccharge\u201d in this context, the electric tax imposed by the Village in this case should also be classified as a charge. ComEd\u2019s position, however, confuses the relationship between a public utility and a municipality with that between a public utility and its customers. Section 9 \u2014 221 governs the relationship between a public utility and its customers. A municipal utility tax may become a \u201ccharge\u201d to a utility\u2019s customers if the utility opts to pass on the tax to the customers. In this case, in fact, ComEd represents that it opted to pass on the electric tax to its customers. Thus, we agree that had this complaint involved a customer\u2019s claim that ComEd was improperly charging it the electric tax, the ICC would be the proper forum in which to resolve the customer\u2019s claim because the dispute would then involve a \u201ccharge\u201d of ComEd. See Community Unit School District No. 200, 44 Ill. App. 3d 665 (addressing whether a utility had wrongly assessed against a customer a municipal utility tas on utilities outside of the municipality\u2019s borders). However, this litigation does not involve the relationship between ComEd and its customers. It involves a wholly distinct relationship, that between the Village and ComEd. Thus, for the purposes of this litigation, we do not find relevant the fact that ComEd passes on the electric tax to its customers as a \u201ccharge,\u201d which is governed by tariffs on file with the ICC.\nComEd also disputes the notion that section 8 \u2014 11\u20142(c) of the Municipal Code (65 ILCS 5/8 \u2014 11\u20142(c) (West 1998)) imposes the incidence of the electric tax on ComEd itself. ComEd notes that several years after this court decided Community Unit School District No. 200, the legislature amended section 8 \u2014 11\u20142 of the Municipal Code to add language providing that \u201c[i]f the person delivering electricity fails to collect the tax from the purchaser, then the purchaser shall be required to pay the tax directly to the municipality in the manner prescribed by the municipality.\u201d Pub. Act 90 \u2014 561, eff. August 1, 1998 (amending 65 ILCS 5/8 \u2014 11\u20142 (West 1998)). According to ComEd, this language shows that the legislature never intended the incidence of the tax to fall upon the public utility. However, we are more persuaded by the Village\u2019s response that this language does nothing to change the fact that the incidence of the tax falls on the public utility, as it necessarily presupposes that the utility has at least attempted to collect the tax from the customer and failed in its attempt to do so. Any other interpretation would render the rest of the statute meaningless. See Gaylor v. Village of Ringwood, 363 Ill. App. 3d 543, 548 (2006) (noting that a statute should be construed so as to render no part of the statute meaningless or superfluous). Moreover, ComEd\u2019s stance is undercut by the facts that (1) the same amendment also added the language providing that an electric tax \u201cconstitute[s] a debt owed to the municipality\u201d by the public utility (Pub. Act 90 \u2014 561, eff. August 1, 1998 (amending 65 ILCS 5/8 \u2014 11\u20142 (West 1998))) and (2) section 9 \u2014 221 of the Act (220 ILCS 5/9 \u2014 221 (West 1998)) expressly refers to the tax authorized by section 8 \u2014 11\u20142 of the Municipal Code as a \u201ctax on [a] public utility.\u201d\nEven if the electric tax imposed by the Village could be categorized as a \u201crate or other charge of a public utility,\u201d we find that count I of the Village\u2019s claim is not premised on the notion that the charge is \u201cexcessive or unjustly discriminatory.\u201d The essence of the Village\u2019s claim is not that ComEd charged too much for a product, commodity, or service. Rather, underlying the Village\u2019s accounting claim is the idea that ComEd owes unpaid electric tax to the Village. In this regard, the Village\u2019s claim is that the electric tax is being underpaid to the Village. ComEd cites to no provision vesting in the ICC exclusive jurisdiction to consider a utility\u2019s underpayment of a rate or other charge.\nComEd\u2019s answer to the idea that the Village\u2019s complaint involves an underpayment of tax is twofold. Initially, ComEd argues that the Village\u2019s claim constitutes a complaint that the electric tax is \u201cunjustly discriminatory.\u201d According to ComEd, the gist of the Village\u2019s complaint is that \u201cComEd has levied the electric tax on some Roselle residents, but not others.\u201d However, we find no such allegation in the Village\u2019s complaint. The Village\u2019s complaint alleges that it \u201chas reason to believe that ComEd is not properly designating premises relating to changes in the corporate boundaries of the Village.\u201d The Village seeks \u201cbilling and correlated utility tax data from ComEd specifically to examine the apparent inconsistencies related to recording annexed premises and verify that ComEd is properly taxing each and every premise within the Village.\u201d We do not interpret these allegations to be that ComEd is levying the electric tax on some residents and not others. Rather, we interpret the allegations to state that because ComEd is not accurately recording all properties annexed into the corporate boundaries of the Village, ComEd is underpaying the amount of electric tax due to the Village. Stated differently, the allegations are of poor record keeping, not of unjust discrimination.\nComEd also asserts that it is unnecessary to determine whether the \u201crate\u201d or \u201cother charge\u201d at issue is \u201cexcessive or unjustly discriminatory.\u201d ComEd claims that the ICC has exclusive jurisdiction \u201cover a dispute about whether a particular charge applies,\u201d even if it is not excessive or unjustly discriminatory. In support of this position, ComEd cites Freiderich v. Illinois-American Water Co., 94 Ill. App. 3d 172 (1981). ComEd\u2019s reliance on Freiderich is unpersuasive. In Freiderich, the plaintiff brought suit against a water company, seeking an injunction to have the water company install, at its own expense, a service pipe to connect the plaintiffs property with a nearby water main. The trial court dismissed the plaintiffs action on the basis that the ICC had exclusive jurisdiction over the matter. The appellate court affirmed, finding that the dispute involved the interpretation and application of rules of the ICC \u201cregarding the extension of water service.\u201d Freiderich, 94 Ill. App. 3d at 176. To the extent that language in the Freiderich decision could be interpreted as stating that a claim under section 9 \u2014 252 of the Act (220 ILCS 5/9 \u2014 252 (West 2004)) does not require that a rate or charge be excessive or unjustly discriminatory, such language is dicta. Moreover, that this case does not even involve a \u201crate or other charge of a public utility\u201d provides an additional basis to distinguish Freiderich.\nComEd cites various cases in support of its position that the Village\u2019s complaint rests on allegations that ComEd has imposed a \u201ccharge\u201d in an \u201cunjustly discriminatory\u201d manner. However, none of the cases ComEd cites involves a municipality seeking an accounting of data for the purpose of determining whether a public utility is accurately calculating the amount of a municipal utility tax owed to the municipality. For instance, one of the issues addressed in Community Unit School District No. 200, 44 Ill. App. 3d 665, was whether the ICC had exclusive jurisdiction over a dispute concerning whether a utility had wrongly assessed against a customer a municipal utility tax on utilities outside of the municipality\u2019s borders. The court answered the inquiry in the affirmative on the basis that the customer\u2019s complaint involved excessive rates charged by the public utility. Community Unit School District No. 200, 44 Ill. App. 3d at 672. This case does not involve a customer\u2019s challenge to a charge passed on to it by a public utility. For similar reasons, we also find misplaced ComEd\u2019s reliance on Adler v. Illinois Commerce Comm\u2019n, 52 Ill. App. 3d 167 (1977) (holding that ICC has exclusive jurisdiction over customers\u2019 complaints; complaints involved claim of excessive rates in that customers alleged that telephone company was levying municipal utility tax on collect and credit card calls not originating within city limits), and Thrasher v. Commonwealth Edison Co., 159 Ill. App. 3d 1076 (1987) (involving claim that public utility improperly charged municipality for electricity to streetlights that were out of service).\nHaving determined that the Village\u2019s accounting claim does not concern a \u201crate or other charge of a public utility\u201d that is alleged to be \u201cexcessive or unjustly discriminatory,\u201d we conclude that the ICC does not have exclusive jurisdiction under section 9 \u2014 252 of the Act (220 ILCS 5/9 \u2014 252 (West 2004)). Since the essence of the Village\u2019s claim is not that ComEd has overcharged, it necessarily involves allegations that ComEd \u201chas done something else to wrong the plaintiff.\u201d Flournoy, 351 Ill. App. 3d at 585. Therefore, we conclude that the Village\u2019s claim was properly filed in the circuit court. 220 ILCS 5/5 \u2014 201 (West 2004).\nBefore moving on to the spoliation-of-evidence claim, we address ComEd\u2019s alternate argument that even if the ICC did not have exclusive jurisdiction, it had primary jurisdiction over the accounting claim. Initially, the Village argues that ComEd waived consideration of this issue because it did not raise it before the trial court. As a general rule, arguments for dismissal that are not raised at the trial court level are waived and cannot be raised for the first time on appeal. City of Rockford v. Suski, 307 Ill. App. 3d 233, 243 (1999). However, our review of the record indicates that ComEd did raise this issue in its reply in further support of its motion to dismiss. Under our supreme court rules, arguments raised for the first time in a reply brief on appeal are waived. (Emphasis added.) 210 Ill. 2d R. 341(e)(7); Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 395 (2004). The Village does not cite a corollary to this rule, applicable to proceedings in the trial court on a motion to dismiss. In fact, our research suggests that it is not unusual for a trial court to address an argument raised for the first time in a reply to a motion to dismiss or for a reviewing court to address the merits of the same issue on appeal. See Trogi v. Diabri & Vicari, P.C., 362 Ill. App. 3d 93 (2005) (involving applicability of a statute of repose raised for the first time by the defendant in the reply in support of its motion to dismiss). Therefore, we reject the Village\u2019s waiver argument.\nThe Village also claims that we cannot grant the relief that ComEd requests. The Village notes that in cases where primary jurisdiction is found to exist, our supreme court has stated, the action should be stayed at the trial court level, not dismissed. See People v. N.L. Industries, 152 Ill. 2d 82, 96 (1992). Because the trial court dismissed the Village\u2019s accounting claim, it reasons that upholding the dismissal of its complaint under the doctrine of primary jurisdiction would be improper. As a reviewing court, however, we may uphold a trial court\u2019s dismissal on any basis found in the record regardless of the propriety of the trial court\u2019s reasoning. People v. Cornelius, 213 Ill. 2d 178, 191 (2004), quoting Bell v. Louisville & Nashville R.R. Co., 106 Ill. 2d 135, 148 (1985); Argonaut Insurance Co. v. Safway Steel Products, Inc., 355 Ill. App. 3d 1, 11 n.7 (2004). We also have the authority pursuant to our supreme court rules to \u201center any judgment and make any order that ought to have been given or made, and make any further orders and grant any relief *** that the case may require.\u201d 155 Ill. 2d R. 366(a)(5). As a result, if we find ComEd\u2019s primary-jurisdiction argument well founded, we can order the trial court to reverse the dismissal and enter an order staying the Village\u2019s action, pending a decision by the ICC.\nIn support of its position that primary jurisdiction for this dispute rests with the ICC, ComEd argues that the Village\u2019s complaint requests relief that it is expressly prohibited from providing under section 16 \u2014 122(c) of the Act (220 ILCS 5/16 \u2014 122(c) (West 2004)) and section 2HH of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/2HH (West 2004)). The provision of the Act that ComEd cites requires an electrical utility to \u201cmake available\u201d to units of local government \u201cinformation concerning the usage, load shape curves, and other characteristics of customers by customer classification and location within the boundaries of the unit of local government.\u201d 220 ILCS 5/16 \u2014 122(c) (West 2004). However, the same statute prohibits the electrical utility from providing \u201ccustomer specific billing, usage, or load shape data\u201d without customer authorization. 220 ILCS 5/16 \u2014 122(c) (West 2004). Section 2HH of the Consumer Fraud Act (815 ILCS 505/2HH (West 2004)) requires written customer authorization for the release of customer billing information. According to ComEd, because the Village seeks \u201cdollar amounts billed and subsequent taxes per premise for each and every premise,\u201d it is \u201cunquestionably\u201d seeking \u201ccustomer specific billing\u201d data, which ComEd is precluded from disclosing absent customer consent. ComEd further asserts that, to the extent that the Village seeks information short of customer-specific billing, any such request requires interpretation of technical terms of art and a determination whether such information may be properly disclosed.\nThe doctrine of primary jurisdiction \u201c \u2018applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.\u2019 \u201d Price v. Philip Morris, Inc., 219 Ill. 2d 182, 343 (2005) (Freeman, J., dissenting upon denial of rehearing, joined by Kilbride, J.), quoting United States v. Western Pacific R.R. Co., 352 U.S. 59, 64, 1 L. Ed. 2d 126, 132, 77 S. Ct. 161, 165 (1956). The doctrine ensures uniformity in the determination of certain types of administrative questions and promotes resort to administrative agency experience and expertise where the court is presented with a question outside its conventional experience. Price, 219 Ill. 2d at 348 (Freeman, J., dissenting upon denial of rehearing, joined by Kilbride, J.). With respect to primary jurisdiction, this court recently stated:\n\u201cNo fixed formula exists for applying the doctrine of primary jurisdiction; rather, in every case the question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application in the particular litigation. [Citation.] When an agency\u2019s technical expertise would help resolve the controversy, or when there is a need for uniform administrative standards, a matter should be referred to an administrative agency. [Citation.] Conversely, when an agency\u2019s technical expertise is not likely to be helpful, or there is no need for uniform administrative standards, courts should not relinquish their authority over a matter to an agency. [Citation.] Where the legal and factual issues involved are standard fare for judges, the issues must be deemed to be within the conventional competence of the courts, and referral to an administrative body is not required.\u201d Village of Itasca v. Village of Lisle, 352 Ill. App. 3d 847, 853-54 (2004).\nCount I of the Village\u2019s complaint alleges a cause of action for an accounting related to ComEd\u2019s remittance of the electric tax. To that end, the Village seeks an order compelling ComEd:\n\u201cTo account to the Village of Roselle for those dollar amounts billed and subsequent taxes-per-premises within the corporate boundaries of the Village of Roselle ***; to which city the tax is being remitted; how much tax has been remitted on a monthly basis; and when tax began being remitted.\u201d\nWe do not agree that the determination of whether the information requested by the Village constitutes \u201ccustomer specific billing\u201d implicates specialized knowledge or terms of art requiring interpretation by the ICC. In its brief, ComEd represents that the data in question is \u201cunquestionably *** \u2018customer specific billing\u2019 data.\u201d The confidence with which ComEd makes this statement enforces the notion that this matter is within the conventional competence of the courts to decide. See Village of Itasca, 352 Ill. App. 3d at 854. Moreover, ComEd admits in its brief that the information that the Village seeks can easily be determined using data that ComEd is permitted by statute to provide. Thus, in deciding the Village\u2019s claim, reference to section 16 \u2014 122(c) of the Act may not even be required. Accordingly, we conclude that the ICC\u2019s special competence is not needed.\n2. Spoliation of Evidence\nThe Village argues that the trial court should not have dismissed count II of its complaint, because it properly pled a cause of action for negligent spoliation of evidence. The trial court offered two reasons for dismissing the spoliation-of-evidence claim. First, the trial court determined that its finding that the ICC had exclusive jurisdiction over the underlying accounting claim required the spoliation issue to also be decided by the ICC. Second, the trial court concluded that count II was deficient in that it failed to state sufficient facts to set forth a cause of action for spoliation of evidence.\nComEd\u2019s motion to dismiss the Village\u2019s spoliation claim was brought pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 2004)). We review de novo a dismissal pursuant to section 2 \u2014 615 of the Code. Lombard Historical Comm\u2019n v. Village of Lombard, 366 Ill. App. 3d 715, 719 (2006). In addressing a section 2 \u2014 615 motion to dismiss, the relevant inquiry is whether the plaintiff has alleged sufficient facts that, if proved, would entitle the plaintiff to relief. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188,192-93 (1995). All well-pleaded facts in the plaintiffs complaint and all reasonable inferences capable of being drawn therefrom must be taken as true, and the allegations must be viewed in the light most favorable to the plaintiff. Board of Education of Indian Prairie School District No. 204 v. Du Page County Election Comm\u2019n, 341 Ill. App. 3d 327, 330 (2003). In addressing the propriety of a trial court order granting a section 2 \u2014 615 motion to dismiss, however, a reviewing court does not assess the merits of the case. Jackson v. Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1, 9 (1997).\nThe trial court decided that the Village\u2019s spoliation claim could not survive the dismissal of the Village\u2019s accounting claim, because the spoliation claim was \u201cancillary\u201d to the accounting claim. Obviously, our conclusion that the Village\u2019s accounting claim was properly filed in the circuit court renders this basis for dismissal invalid. That leaves us to address whether the Village\u2019s spoliation claim states a cause of action upon which relief may be granted. Although the trial court found that count II of the Village\u2019s complaint did not state a cause of action for spoliation, the court did not provide a rationale for its decision. The Village argues that it set forth the necessary elements for negligent spoliation of evidence. An action for negligent spoliation is stated under negligence law. Boyd, 166 Ill. 2d at 194. Accordingly, a plaintiff claiming negligent spoliation must plead the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, an injury proximately caused by the breach, and damages. Boyd, 166 Ill. 2d at 194-95. We address each of these elements in turn, beginning with whether ComEd had a duty to the Village to preserve the \u201csnapshots\u201d and auditor work product at issue.\nAs a general rule, there is no duty to preserve evidence. Boyd, 166 Ill. 2d at 195. However, as the Boyd court found, the existence of two elements will create a duty. First, a duty to preserve evidence may arise through an agreement, a contract, a statute, or another special circumstance, or where a defendant voluntarily assumes a duty by affirmative conduct. Boyd, 166 Ill. 2d at 195. This element is commonly referred to as the \u201crelationship prong.\u201d Andersen v. Mack Trucks, Inc., 341 Ill. App. 3d 212, 215 (2003). Once a plaintiff proves the relationship prong, the plaintiff must establish the \u201cforeseeability prong.\u201d Andersen, 341 Ill. App. 3d at 215. That is, the plaintiff must demonstrate that a reasonable person in the defendant\u2019s position should have foreseen that the evidence was material to a potential civil action, and the pleadings must allege facts describing such circumstances. Boyd, 166 Ill. 2d at 195. In the absence of either the relationship or the foreseeability prong, there is no duty to preserve evidence. Andersen, 341 Ill. App. 3d at 215.\nWith respect to the relationship prong, the Village argues that ComEd\u2019s duty to preserve the material, which it admittedly erased from the laptop computer, arose from various Village ordinances, state statutes, and state regulations. The Village also argues that by imposing the restrictive conditions on the auditors, ComEd assumed a duty to preserve the material.\nInitially, we reject the Village\u2019s claim that any Village ordinance, state statute, or state regulation imposed a duty to preserve the information on the computer. In support of its claim, the Village cites to three distinct sections of the franchise agreement between it and ComEd. Sections 13.1 and 13.2 of the franchise agreement (Roselle Ordinance No. 92 \u2014 2222, \u00a7\u00a713.1, 13.2 (eff. July 29, 1992)) require ComEd to comply with all applicable ordinances, statues, and regulations. However, neither section expressly requires ComEd to retain electronic copies of its books and records or any work product of the auditors. Therefore, the Village\u2019s reliance on those sections is misplaced. The Village also cites section 7.3 of the franchise agreement (Roselle Ordinance No. 92 \u2014 2222, \u00a77.3 (eff. July 29, 1992)), which states that \u201cfrom time-to-time,\u201d ComEd shall:\n\u201c[F]urnish such additional information as the Village may reasonably deem to be necessary to enable it to determine whether the Licensee is complying or has complied with the provisions of this Ordinance, other than those matters subject to the exclusive jurisdiction of a Competent Authority other than the Village. The Licensee shall not be required to provide information as to which it has a legal privilege to refuse to provide.\u201d\nWhile this provision imposes a duty upon ComEd to \u201cfurnish\u201d certain information, it does not require ComEd to \u201cpreserve\u201d anything.\nThe Village also cites to the Illinois statute relating to the municipal utility tax and the corresponding Village ordinance. The Village argues as follows. The Village, as a municipality, has been granted the authority by the legislature to impose a municipal utility tax. 65 ILCS 5/8 \u2014 11\u20142(3) (West 1998); Roselle Code of Ordinances \u00a720 \u2014 38 et seq. (eff. April 26, 1999). Pursuant to this authority, ComEd, as the provider of electrical utility service to the Village, has the responsibility of remitting the tax to the Village and the authority to seek reimbursement for the tax from its customers. 65 ILCS 5/8 \u2014 11\u20142(c) (West 1998); Roselle Code of Ordinances \u00a720 \u2014 42 (eff. April 26, 1999). The ordinance imposing the electric tax requires \u201c[ejvery tax collector, and every taxpayer required to pay the tax *** [to] keep accurate books and records of its business or activity, including contemporaneous books and records denoting the transactions that gave rise, or may have given rise, to any tax liability under this chapter.\u201d Roselle Code of Ordinances \u00a720 \u2014 45 (eff. April 26, 1999). Illinois law, in turn, grants the Village \u201call powers necessary to enforce the collection of any tax imposed and collected by such municipality.\u201d 65 ILCS 5/8 \u2014 3\u201415 (West 1998). Again, the Village\u2019s reliance on these statutes and ordinances is misplaced because they contain no language imposing a duty upon ComEd to preserve electronic copies of its books and records or any work product of the auditors.\nThe Village also cites to section 35 of the Local Government Taxpayers\u2019 Bill of Rights Act (50 ILCS 45/35 (West 2004)) and two sections of the Illinois Administrative Code. The Village\u2019s reliance on these authorities is likewise misplaced. Section 35 of the Local Government Taxpayers\u2019 Bill of Rights Act sets forth the procedures for an audit by a municipal taxing authority, including detailing the minimum documentation of books and records to be made available to the auditor. 50 ILCS 45/35 (West 2004). Section 420.30 of Title 83 of the Illinois Administrative Code (83 Ill. Adm. Code \u00a7420.30, eff. September 1, 1962) provides that a public utility shall reasonably safeguard records. Section 250.10 of Title 83 of the Illinois Administrative Code (83 Ill. Adm. Code \u00a7250.10, adopted December 12, 1935) requires public utilities to maintain an office in Illinois for keeping certain records. None of these provisions requires a public utility to preserve electronic copies of books and records or auditor work product.\nIn fact, the Village acknowledges that these laws and regulations imposed no duty upon ComEd to preserve the materials at issue here. The Village states, \u201c[t]he above ordinances, statutes, and regulations all place on ComEd, in varying capacities, an obligation to keep information relative to its collection of municipal utility tax moneys on behalf of the Village. *** [T]he natural corollary *** is that, once ComEd provides data or information to the Village for the purpose of an audit relative to ComEd\u2019s municipal utility tax collection and remission responsibilities, it has a duty to refrain from erasing or destroying the data it has provided.\u201d (Emphasis added.) By the use of the phrase \u201cnatural corollary,\u201d the Village implicitly recognizes what it refuses to expressly acknowledge, i.e., the statutes, ordinances, and regulations upon which it relies do not impose upon a public utility any duty to preserve \u201csnapshots\u201d or auditor work product.\nAlternatively, the Village argues that by imposing conditions for the auditors to access the information, ComEd \u201cassumed unto itself\u2019 a duty to preserve the \u201csnapshots\u201d and auditor work product. These conditions included that the auditors review data only at ComEd\u2019s offices, that they not copy or remove data from ComEd\u2019s facilities, and that they use a ComEd-provided laptop computer (which had to be left at ComEd\u2019s offices) to examine data and create work product. ComEd responds that the Village cites no relevant authority for the proposition that by imposing the restrictions, ComEd assumed a duty to preserve the \u201csnapshots\u201d and auditor work product. ComEd does not otherwise argue that the conditions it imposed do not meet the relationship prong of the Boyd test. ComEd does argue, however, that the Village failed to adequately plead facts to support the foreseeability prong of the duty to preserve evidence. The Village counters that the purpose of the audit was to assess whether ComEd had properly remitted the electric tax. The Village reasons that because ComEd was fully aware of the purpose of the audit, it was reasonably foreseeable to ComEd that the Village would bring a civil action to recover any unpaid taxes. We find that the Village\u2019s complaint fails to plead sufficient facts to support the notion that the \u201csnapshots\u201d and auditor work product were foreseeably material to a potential civil action. Jackson, 294 Ill. App. 3d 1, is instructive on this point.\nJackson concerned a spoliation claim involving the loss of X rays allegedly needed to prove a malpractice claim. Similar to the instant case, the spoliation claim in Jackson was dismissed for failure to state a claim upon which relief could be granted. Although the Jackson court found that the plaintiff failed to establish a duty to preserve evidence, it did note that there was evidence in the record suggesting that the defendant had notice of litigation. Jackson, 294 Ill. App. 3d at 11. Specifically, the Jackson defendant had placed the X rays in a segregated litigation file. Jackson, 294 Ill. App. 3d at 11. The Village does not allege any similar evidence in this case. For instance, the Village does not allege that when the auditors left ComEd\u2019s offices, leaving behind the \u201csnapshots\u201d and auditor work product, it suggested to ComEd that it had found any deficiencies in the electric tax remitted by ComEd.\nThe Village argues that the fact that it requested data to conduct an audit was itself sufficient to put ComEd on notice that if the result of the audit were adverse to ComEd, the Village could potentially bring a civil action to collect the unpaid taxes. However, as we note above, when the Village\u2019s auditors left ComEd\u2019s offices, they gave no indication that the result of the audit was adverse to ComEd. Moreover, case law suggests that more than a request for certain evidence is required to put a party on notice of a potential civil action. Notably, there must be an additional indication that the defendant knew or reasonably should have known of the potential for litigation.\nFor instance, in Boyd, the plaintiff was injured when a heater he brought to work exploded. The plaintiff sought workers\u2019 compensation benefits from his employer. Two days after the accident, the defendant took possession of the heater, telling the plaintiffs wife that it needed the heater to investigate the workers\u2019 compensation claim and that it would test the heater to determine the cause of the explosion. When the plaintiff requested the return of the heater, he was told that it had been lost. Based on these facts, the supreme court concluded that the duty to preserve had been established. Boyd, 166 Ill. 2d at 195. The supreme court\u2019s analysis in Boyd suggests that it was not solely the plaintiffs request for the heater that established the duty to preserve. Instead, the supreme court emphasized that the defendant was aware that the heater was potentially defective, that the plaintiff had been seriously injured by the heater, and that the cause of the explosion had not been determined. Compare Dardeen v. Kuehling, 213 Ill. 2d 329, 338 (2004) (pointing out that the plaintiff never contacted the defendant to ask it to preserve evidence), with Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707, 714-15 (1999) (noting that the plaintiffs complaint alleged that the defendant had a policy of preserving equipment involved in accidents), and Jackson, 294 Ill. App. 3d at 11-12 (remarking that in addition to the plaintiffs request for the X rays, there was evidence that the defendant had placed the X rays in a segregated litigation file). In this case, ComEd provided the auditors some of the data the Village requested. The auditors captured the data on a laptop computer provided by ComEd. According to the Village\u2019s complaint, the data examined allowed the auditors \u201cto draw certain conclusions regarding fluctuations in taxed accounts, which led the [auditors] to the conclusion that ComEd owed unpaid monies to the Village.\u201d We reiterate, however, that the Village does not allege that when the auditors returned the computer to ComEd, they informed ComEd of their findings. Accordingly, we conclude that the Village has failed to show that ComEd had a duty to preserve the \u201csnapshots\u201d or the auditor work product.\nAlthough we conclude that the Village\u2019s complaint did not adequately plead a duty to preserve evidence, we do note that, when viewed in a light most favorable to the Village, its allegation that ComEd failed to take reasonable and necessary precautions to ensure that the computer and data stored on it were protected and preserved was sufficient to establish the breach-of-duty element of a spoliation claim. See Jackson, 294 Ill. App. 3d at 13. Nevertheless, the Village\u2019s complaint is also deficient with respect to the issues of causation and damages.\nWith respect to causation, a plaintiff must allege that an injury proximately resulted from a breach of duty. Boyd, 166 Ill. 2d at 196. Applying this notion to a spoliation-of-evidence claim, a plaintiff must allege sufficient facts to support a claim that the loss or destruction of the evidence caused the plaintiff to be unable to prove an underlying lawsuit. Boyd, 166 Ill. 2d at 196. Stated differently, a plaintiff must demonstrate that but for the defendant\u2019s loss or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in the underlying lawsuit. Boyd, 166 111. 2d at 196 n.2. The Village claims that, when viewed in a light most favorable to it, its allegations establish that ComEd\u2019s destruction of the \u201csnapshots\u201d and auditor work product proximately caused it injury. The Village relies on the conditions ComEd placed on the audit, the fact that ComEd erased the data on the computer it provided to the Village, that the \u201csnapshots\u201d and work product cannot accurately be recreated, and that before the data had been erased, the auditors were able to draw the conclusion that ComEd owed unpaid electric tax. The Village further states that its complaint alleges that it was injured in that it was unable to conduct its audit of ComEd and enforce its legal rights against ComEd.\nThe problem we see with the Village\u2019s argument is the lack of adequate evidence that the lost audit data, in particular what the Village refers to as \u201csnapshots,\u201d cannot be recreated. The Village describes a \u201csnapshot\u201d as \u201ca still image of the dynamic, ever-changing field of data about ComEd\u2019s accounts, taken at one exact point in time,\u201d which yields a compilation of data that could be compared with other \u201csnapshots.\u201d This description necessarily implies that the \u201csnapshots\u201d are electronic copies of specific tax data existing in ComEd\u2019s records. There is no allegation that the data underlying these \u201csnapshots\u201d no longer exists. Indeed, as the Village itself notes, ComEd has an independent duty under various statutes, ordinances, and regulations to maintain accurate books and records of its business activities, including taxes. There is no allegation that ComEd violated any of these statutes, ordinances, or regulations with respect to the maintenance of its business records. Moreover, the Village\u2019s description of the \u201csnapshots\u201d as \u201cdynamic\u201d and \u201cever-changing\u201d and its accompanying claim that the \u201csnapshots\u201d cannot be recreated are conclusions that are not supported by specific factual allegations. While we must accept as true all well-pleaded facts in the Village\u2019s complaint in a light most favorable to it, we are not required to accept as true conclusions of law or fact contained in the complaint that are not supported by specific factual allegations. Veazey v. LaSalle Telecommunications, Inc., 334 Ill. App. 3d 926, 929 (2002); Universal Outdoor, Inc. v. Village of Elk Grove, 194 Ill. App. 3d 303, 305 (1990). The Village does not allege that the data underlying the \u201csnapshots\u201d was lost. Moreover, the Village does not allege that it asked ComEd to recreate these \u201csnapshots\u201d or even asked whether the \u201csnapshots\u201d can be recreated. As a result the Village failed to adequately plead the element of causation.\nTurning to the issue of damages, our supreme court has stated that actual damages must be alleged in an action for negligent spoliation of evidence. Boyd, 166 Ill. 2d at 197. To allege the element of damages, a plaintiff is required to allege that a defendant\u2019s loss or destruction of the evidence caused the plaintiff to be unable to prove an otherwise valid, underlying cause of action. Boyd, 166 Ill. 2d at 197. In other words, there must be a nexus between the defendant\u2019s loss or destruction of the evidence and the plaintiffs ability to prove his underlying suit. It is evident from our discussion of causation that no such relationship has been established in this case.\nFinally, we agree with the Village that, on remand, it should be allowed to replead its negligent-spoliation-of-evidence claim. As we stated in Andersen, \u201c[a] complaint should be dismissed with prejudice under section 2 \u2014 615 only if it is clearly apparent that no set of facts can be proven that will entitle the plaintiff to recover.\u201d Based on the record before us, we cannot say that it is clearly apparent that no set of facts can be proven that will entitle the Village to recover.\nIII. CONCLUSION\nFor the reasons stated above, we reverse the judgment of the circuit court of Du Page County dismissing count I of the Village\u2019s complaint, and we remand count I for further proceedings. We affirm the judgment of the circuit court dismissing count II of the complaint, but we remand that count with instructions to allow the Village to replead the negligent-spoliation-of-evidence claim.\nAffirmed in part and reversed in part; cause remanded with directions.\nBOWMAN and CALLUM, JJ., concur.\nAs we discuss later in this opinion, the Village\u2019s description of what the \u201csnapshots\u201d represent leads us to believe that they are electronic copies of tax data existing in ComEd\u2019s business records.", "type": "majority", "author": "PRESIDING JUSTICE GEOMETER" } ], "attorneys": [ "James H. Knippen and Adam C. Kruse, both of Walsh, Knippen, Knight & Pollock, Chtrd., of Wheaton, for appellant.", "Stephen C. Carlson, Dale E. Thomas, Brian A. McAleenan, and Charles K. Schafer, all of Sidley Austin, LLEJ and Jessica M. Aspen, of Exelon Business Services Company, both of Chicago, for appellee." ], "corrections": "", "head_matter": "THE VILLAGE OF ROSELLE, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.\nSecond District\nNo. 2\u201406\u20140294\nOpinion filed November 7, 2006.\nJames H. Knippen and Adam C. Kruse, both of Walsh, Knippen, Knight & Pollock, Chtrd., of Wheaton, for appellant.\nStephen C. Carlson, Dale E. Thomas, Brian A. McAleenan, and Charles K. Schafer, all of Sidley Austin, LLEJ and Jessica M. Aspen, of Exelon Business Services Company, both of Chicago, for appellee." }, "file_name": "1097-01", "first_page_order": 1115, "last_page_order": 1137 }