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Scutt v. La Salle County Bd.

OPINION FILED JUNE 17, 1981.

ROBERT SCUTT ET AL., PLAINTIFFS-APPELLANTS,

v.

LA SALLE COUNTY BOARD ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of La Salle County; the Hon. ALEXANDER T. BOWER, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Plaintiffs Robert Scutt, Edward R. Adams, Allan Mertz, John Rudnicky, Al Adamcyk, and Roger Urban are sheriff's deputies who filed a complaint alleging breach of an oral employment contract by defendant La Salle County Board, and its agents, defendants Ben Samek, James Callahan, and John Duffy. After defendants moved to strike and dismiss the complaint alleging their immunity from suit and the absence of a cause of action, the circuit court of La Salle County, after considering an amended pleading, dismissed the cause. Plaintiffs then filed a motion to vacate the order of dismissal and a second amended complaint. This appeal is from the trial court's denial of the motion to vacate.

• 1 As the order of dismissal was entered upon allowance of defendants' motion, all facts properly pleaded in the complaint must be taken as true. (Kendall v. Kendall (1978), 71 Ill.2d 374, 375 N.E.2d 1280.) While plaintiffs' second amended complaint was apparently never formally filed, the trial court stated it had considered the "amended complaints," and this third pleading primarily expands upon the same factual base presented in its predecessors. Under these circumstances, and as the second amended complaint has been included in the record on appeal without objection, we shall consider its well-pleaded allegations as true.

On and before December 1, 1978, plaintiffs were employed as deputies by the La Salle County sheriff's department. Their specific status was that of "deputies on probation," and they anticipated being promoted to "deputy/patrolmen." The former officers were paid $10,500; the latter, $12,200.

Prior to the above date, defendant Callahan, then sheriff of La Salle County, announced that $1,000 raises would be granted to all deputies in his department. On December 1, 1978, "deputies on probation" began receiving a salary of $11,500 per year; "deputy/patrolmen," $13,200 per year. As the plaintiff "deputies on probation" were promoted, they were not compensated at the new salary; rather, they received $12,200 per year. This was the annual compensation paid to "deputy/patrolmen" prior to December 1, 1978.

Two questions are presented for our review. Did the trial court err in ruling defendants were immune from suit? Did the court err in ruling the complaints failed to state a cause of action?

• 2 Turning first to the question of immunity, both sides agree that the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, par. 1-101 et seq.) governs this issue. While the Act provides a local public entity is not liable for an injury caused by an employee's oral promise or misrepresentation (Ill. Rev. Stat. 1977, ch. 83, par. 2-106), as well as providing a public employee is not liable for an act or omission in determining policy (Ill. Rev. Stat. 1977, ch. 85, par. 2-201), these provisions are not determinative of the issue at bar. Count I of the plaintiffs' second amended complaint requests money damages and sounds in contract, while count II requests money damages and injunctive relief alleging a denial of due process and equal protection. The Act provides:

"Nothing in this Act affects the right to obtain relief other than damages against a local public entity or public employee. Nothing in this act affects the liability, if any, of a local public entity or public employee, based on:

a) contract;

(Ill. Rev. Stat. 1977, ch. 85, par. 2-101.)

As the alleged liability of defendants is based on contract in count I of the complaint, and relief other than damages is sought in count II, we find the trial court erred in holding defendants immune from this action, except as to the money damages sought in count II.

Turning next to the question of the existence of a cause of action, we shall consider each of the complaint's two counts.

Count I alleges the execution of an oral employment contract between defendant La Salle County Board and the plaintiff deputies. This contract allegedly arose as a result of an announcement that all deputies would receive a $1,000 raise. Breach of the alleged contract allegedly occurred when certain deputies were not compensated at the rate of $13,200 per year. The fact that an initial $1,000 ...


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