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03/03/94 ESTATE LEONARD E. BESINGER v. VILLAGE

March 3, 1994

THE ESTATE OF LEONARD E. BESINGER, UNIMPROVED PROPERTIES PARTNERSHIP BY GREG BESINGER, ITS MANAGING PARTNER, PLAINTIFF-APPELLEE,
v.
THE VILLAGE OF CARPENTERSVILLE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 90-MR-0295. Honorable R. Peter Grometer, Judge, Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

Bowman, Inglis, Geiger

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, the estate of Leonard Besinger Unimproved Properties Partnership (Estate), brought this action seeking, among other things, a declaratory judgment that it owned the rights to connections, without charge, to the sewer and water system of the defendant, the Village of Carpentersville (Village). The Village appeals from an order of the circuit court of Kane County which denied its motion for summary judgment, but granted that of the plaintiff, as to count I of the complaint.

In 1961 Leonard W. Besinger, a real estate developer, owned 100% of the stock and was president of the Meadowdale Corporation (Meadowdale), an Illinois corporation engaged in the public utility business of providing sewer and water. Besinger entered into an agreement with Meadowdale whereby, if he constructed extensions to Meadowdale's existing sewer and water system in order to service any of his property which was annexed to Carpentersville, installed water meters in all buildings erected by him, and guaranteed his work for one year, he would have the right to make 3,000 connections, or tap-ons, to the Meadowdale sewer and water system without charge.

In 1962 Meadowdale agreed to sell its sewer and water system to the Village for $1,275,000. The agreement between Meadowdale and the Village included the following provisions:

"(d) The purchase by the Village of the Water and Sewer System is subject to the terms and provisions of that certain Agreement by and between Meadowdale and Leonard W. Besinger dated September 21, 1961, * * * whereby Meadowdale agrees to permit Leonard W. Besinger, his successors and assigns, to makeconnections to the Water and Sewer System without charge provided that Leonard W. Besinger, his successors and assigns, furnishes and installs water meters for each said water connection. All extensions of the Water and Sewer System and connections shall be made by Leonard W. Besinger or his successors or assigns pursuant to such contract * * *. Such construction shall be guaranteed for one (1) year.

(e) [The Village] shall adopt an ordinance stating that it will make no charges in the nature of tap-on fees, connection charges, or other charges or permit fees for the privilege of connecting to the Water and Sewer System, or any extensions thereof, where such connection is performed in a manner reasonably prescribed by the Village, and where such water and sewer mains are constructed by private parties and dedicated to the Village, and that any charges by the Village for connections performed by the Village shall approximate the cost of the materials and labor necessary to make said connection, but such ordinance, nor any other ordinance, shall in any way obligate Leonard W. Besinger, or his successors and assigns under the aforesaid contract in subparagraph (d) hereof to make any payment for tap-on fees, connection charges or any other charges for the privilege of connecting to the Water and Sewer System or any extension thereof as provided in the aforesaid contract.

The 1961 agreement between Besinger and Meadowdale was attached to the 1962 agreement.

After the Village purchased the sewer and water system, Besinger periodically applied for and received tap-ons without being charged any connection fees. Leonard Besinger died in 1982. In 1989 Greg Besinger, the son and personal representative of Leonard's estate, asked the Village to confirm the existence and number of unused, free water and sewer connections available under the 1962 agreement. The Village responded that it was not obligated to provide tap-ons to the heirs, successors, or assigns of Leonard.

The estate of Leonard Besinger filed a three-count complaint against the Village. Count I prayed for a declaratory judgment that the estate owned the rights to tap-ons without charge. Count II sought the enforcement of a settlement agreement concerning tap-ons for a particular parcel of real estate. In count III the estate requested an accounting. The present plaintiff was subsequently substituted for Leonard Besinger's estate.

During the litigation, the Village's motion to strike count III was granted. Ultimately, the trial court granted the Village's, but denied the plaintiff's, motion for summary judgment as to count II. Conversely, with regard to count I, the trial court granted plaintiff's motion for summary judgment, while denying the Village's identical motion. The Village appeals only the part of the trial court's order relative to count I. Plaintiff has not cross-appealed.

Before we begin our examination of the issues in this case, we feel compelled to address the remarks made by the Village in the "Introduction" to its argument. With considerable consternation we point out that this section of the brief is not a fair introduction to argument at all. On the contrary, it amounts to nothing more than a personal diatribe against members of the Besinger family, both living and deceased. Repeatedly, it attacks these individuals on a personal level. It brims with totally unfounded, unsupported suggestion, innuendo, and, at times, virtual accusations of wrongdoing against the Besingers. No concession is made for the possibility that there may be legitimate differences of opinion on certain of the issues. At some points, the "Introduction" appears to be merely an attempt to place before this court irrelevant, but highly emotional facts or claims. Needless to say, defendant's introductory remarks bear little relevance to the case before us.

Our reaction to the opening portion of defendant's argument is simple and direct: there is no place for such an approach before this court. It is inappropriate, if not irresponsible, and serves only to create or exacerbate hostility and disrespect between the parties, as well as counsel, as witnessed by plaintiff's response in its own "Introduction." While plaintiff's response exhibits considerable restraint, it is regrettable that such a response had to be made at all. That the Village personally attacked its adversary is disturbing, both in and of itself, and in its negative effect on the system. All parties and their counsel, in all cases, do far better when they focus steadfastly on the issues rather than on each other.

We now return to the legal matters before us. The Village appeals the trial court's order granting the Estate's motion for summary judgment as to count I, the count which sought a declaration of the Estate's right to free tap-ons. A motion for summary judgment should be granted when the pleadings, depositions, and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (735 ILCS 5/2-1005 (West 1992)); Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 420-21, 170 Ill. Dec. 418, 592 N.E.2d 1098.) Since it is a drastic remedy, summary judgment should be granted only when the right of the moving party to relief is free from doubt. Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 95 Ill. Dec. 305, 489 N.E.2d 867.

In response to count I of the complaint the Village filed an answer and seven affirmative defenses. Maintaining that Meadowdale fully performed under the 1962 agreement and that the Village accepted the benefits of that agreement the Estate urges us to find that the Village is equitably estopped from asserting its affirmative defenses. The Village counters that it may not be estopped from challenging the tap-on provision in the 1962 agreement because that provision was void from the start for a number of different reasons.

The Village's first voidness argument proceeds as follows: (1) the tap-on rights claimed by the Estate arose solely from the 1961 agreement between Leonard Besinger and Meadowdale; (2) the 1961 agreement, which was incorporated into the 1962 agreement between the Village and Meadowdale, was void at the outset, and the tap-on provision of the later agreement, therefore, was also void; (3) estoppel cannot be invoked to prevent a challenge to the validity of a contract. The Estate, in turn, insists we need not reach questions concerning the validity of the 1961 agreement since the tap-on rights at issue find independent roots in the 1962 agreement. Accordingly, the Estate prompts us to focus only on the later agreement.

The Village asserts that the 1961 agreement was void at the outset because it was contrary to the public policy of the State of Illinois. A party to a contract which is contrary to public policy is not estopped from raising its illegality as a defense. ( O'Hara v. Ahlgren, Blumenfeld & Kempster (1989), 127 Ill. 2d 333, 349, 130 Ill. Dec. 401, 537 N.E.2d 730.) Thus, the Village is correct that equitable estoppel is not effective when a contract is challenged on the ground that it was void ab initio. However, even if the 1961 agreement was void, it would not matter here since such voidness would have no effect on the agreement reached between Meadowdale and the Village in 1962. After careful ...


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