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01/29/87 Francis Leckrone Et Al., v. the City of Salem

January 29, 1987





503 N.E.2d 1093, 152 Ill. App. 3d 126, 105 Ill. Dec. 87 1987.IL.86

Appeal from the Circuit Court of Marion County; the Hon. Robert F. A. Stocke and the Hon. E. Chris Eberspacher, Judges, presiding.


JUSTICE JONES delivered the opinion of the court. KASSERMAN and HARRISON, JJ., concur.


Plaintiffs appeal a judgment entered upon the granting of defendant's motion to dismiss for failure to state a cause of action as to three counts of their four-count complaint. In its judgment upon the three counts of the complaint, the trial court, sua sponte, made a finding pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) that there was no reason to delay appeal. The defendant did not cross-appeal as to the denial of its motion to dismiss the fourth count of plaintiffs' complaint.

The causes of action the plaintiffs sought to assert in their complaint arose from defendant's ownership and operation of a sanitary landfill and a sewage disposal plant adjacent to real estate owned by plaintiffs. Count I of plaintiffs' complaint was by all plaintiffs. It alleged that plaintiffs were deprived of the peaceable use and enjoyment of their property because defendant permitted refuse to be blown upon their lands and permitted vile odors to emanate from their landfill. The prayer of count I was for damages in excess of $15,000 and an injunction. Count II was by plaintiffs Leckrone alone. In it they alleged that defendant's

Following service of summons, defendant filed its motion to dismiss the complaint. The motion was signed by attorney Michael R. Jones of the law firm of Branson, Jones & Stedlin, city attorneys for defendant, and by James B. Wham of the law firm of Wham & Wham. On the date that argument was to be heard on the motion to dismiss, plaintiff's attorney filed a motion to recuse the law firm of Wham & Wham as attorneys representing defendant upon the ground that Wham & Wham was at that time representing one of the plaintiffs, Doy E. Meador, in a suit then pending in the same court, Meador v. Meador, et al., cause No. 82 -- CH -- 32, and because of such representation a conflict of interest was created and ethical-conduct canons were being violated, all of which required the court to recuse the firm of Wham & Wham from the case. (The term "recuse" is that used by plaintiffs rather than the seemingly more appropriate term "disqualify." We will, however, continue to use the term "recuse.") Defendant filed an objection to the motion to recuse.

Hearing on the motion to dismiss plaintiffs' complaint was suspended pending Disposition of the motion to recuse. Hearing on the motion the recuse was held and evidence taken. Richard Carey of the Wham firm testified that he had filed a partition suit for Doy Meador upon a 40-acre tract of land located many miles from the Salem landfill site and that there was no connection between the tract being partitioned and any of the lands of either the plaintiffs or the defendant in the instant suit. Carey further stated that the partition case was at the point where the court was to appoint a commissioner who would make a determination whether the land would be divided among the parties or sold at public sale. Carey stated also that he had not discussed any aspect of this case with Doy Meador and had received no information from anyone concerning this case. He intended to have the firm of Wham & Wham withdraw from the partition case they were conducting on Meador's behalf, if permitted to do so by the court, and would ask for no fees, only reimbursement of expenses. Michael Jones, city attorney for defendant, testified that the firm of Wham & Wham was currently acting as attorney for defendant in a case pending in Effingham County, had served as attorney for defendant on other occasions, and that it was at his suggestion that Wham & Wham had been retained as defense counsel in this case. James B. Wham, a partner of the firm of Wham & Wham, testified that no information of any kind had come to any member of the firm from Doy Meador. Following the hearing on the motion to recuse, the Wham firm filed its motion to withdraw as attorney for Doy Meador in the partition case. No objection was entered by Meador, and, several days later, an order was entered granting the motion for leave to withdraw. Seven days after that order, an order was entered in this case denying plaintiffs' motion to recuse Wham & Wham as attorney for defendant.

The court then turned its attention to defendant's motion to dismiss all four counts of plaintiffs' complaint. The principal issues raised by defendant's motion were concerned with the application of the Local Government and Governmental Employees Tort Immunity Act (hereinafter Tort Immunity Act or Act) (Ill. Rev. Stat. 1983, ch. 85, par. 1-101 et seq.). Defendant contends that plaintiffs failed to comply with the two-year limitation for commencing an action as provided in section 8-101 of the Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 8-101) and failed to give the one-year notice of injury or cause of action as provided in 8-102 of the Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 8-102). After hearing arguments and considering the briefs submitted by the parties, the trial court prepared its "judgment and order" that included extensive findings of fact and Conclusions of law. The judgment dismissed counts I, II, and III of the complaint with prejudice and in bar of action, denied the motion to dismiss as to count IV of the complaint, and directed defendant to plead thereto within 21

days. Upon its own motion the court made the finding provided by Supreme Court Rule 304(a) that there was no reason to delay enforcement or appeal, and appeal plaintiffs did.

It was plaintiffs' position before the trial court that the Tort Immunity Act was applicable to injuries only, that their actions in counts I and II were based on a common law nuisance theory, in count III of a common law riparian theory, and in count IV upon a common law trespass theory. Plaintiffs also contended that defendant waived the immunity of the Tort Immunity Act by the purchase of insurance as provided by section 9 -- 103 of that Act. Defendant argued that the failure to give the notice required by section 8 -- 102 of the Act and the failure to commence the action within two years as required by section 8 -- 101 of the Act required the dismissal of all four counts of the complaint.

In its judgment the trial court found that the Tort Immunity Act was applicable to plaintiffs' action. Although the several counts of plaintiffs' complaint were based upon common law theories of nuisance, riparian rights, and trespass, the court determined by reference to common law pleading authorities that such theories nevertheless sounded in tort. As a consequence, the court found the Tort Immunity Act necessitated the dismissal of counts I, II, and III of the complaint. As to count IV, the court found that counsel for defendant had admitted during argument on the motion to dismiss that the defendant had purchased insurance against the liability asserted in that count, and, accordingly, thereby waived the immunity provided by the Tort Immunity Act, and defendant's motion to dismiss count IV was denied.

Although the judgment of the trial court was expressly based upon the application of the Tort Immunity Act, it also ruled upon other matters raised by defendant's motion to dismiss. It adJudged that plaintiffs were forever barred by the Tort Immunity Act only as to such acts of the defendant that occurred prior to the filing of plaintiffs' complaint; if the acts complained of were ongoing, a new action could be commenced as to acts transpiring subsequent to the filing of the complaint. The court also found that count I of the complaint was duplicitous since it combined two separate causes of action, but the court noted that because of section 2-1006 of the Code of Civil Procedure (Ill. Rev. Stat. ...

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