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01/13/98 KEN DEWITT v. MCHENRY COUNTY

January 13, 1998

KEN DEWITT, PLAINTIFF-APPELLANT,
v.
MCHENRY COUNTY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of McHenry County. No. 96--LA--51. Honorable James C. Franz, Judge, Presiding.

The Honorable Justice Rathje delivered the opinion of the court. Geiger, P.j., and Inglis, J., concur.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

Plaintiff, Ken Dewitt, appeals the judgment of the circuit court of McHenry County dismissing his complaint against defendant, McHenry County, for breach of an employment contract. Plaintiff contends that the court erred in holding that his cause of action was barred by the one-year statute of limitations in the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1--101 et seq. (West 1994)).

Plaintiff's complaint alleges that defendant hired him as a data processing manager in February 1989. By December 8, 1993, he held the position of senior systems manager. Plaintiff alleges that he was given a copy of the "McHenry County Government Personnel Policy Handbook." The handbook stated that defendant would not discharge plaintiff without good cause and listed various acts that constituted cause for disciplinary action or termination. The handbook also provided for a pretermination hearing. Plaintiff never committed any of the acts proscribed by the handbook, and no one ever told him that his performance was unsatisfactory. Nevertheless, on December 8, 1993, defendant terminated plaintiff's employment without providing him with a pretermination hearing.

Counts I and II of the complaint allege breach of contract. Count III alleges retaliatory discharge. Count IV is titled "Denial of Constitutional Right to Counsel."

Defendant removed the case to the federal district court, which remanded it to the state court. Defendant filed a combined motion to dismiss the complaint pursuant to sections 2--615 and 2--619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2--615, 2--619(a)(5) (West 1994)).

The section 2--615 portion of the motion argued in pertinent part that the complaint did not adequately allege various elements of a breach-of-contract cause of action, including offer, acceptance, and consideration. Defendant further contended that the copy of the handbook attached to the complaint contained an explicit disclaimer of any intention to create an enforceable contract. The section 2--619 portion of the motion contended that all of plaintiff's causes of action were barred by the one-year limitations period provided in the Act. See 745 ILCS 10/8--101 (West 1994). In response, plaintiff argued that the copy of the handbook attached to the complaint was not the one he actually received, but a later revision, and that the one-year limitations period did not apply to his contract counts.

At the hearing on the motion, the parties first argued the issues of the complaint's factual sufficiency. The trial court demonstrated a willingness to dismiss the complaint on that basis, but also to allow plaintiff leave to amend. The parties then asked to address the limitations issue. The court ruled that section 8--101 barred all of plaintiff's causes of action. The court's order states the court's finding that plaintiff's complaint is time-barred and grants plaintiff 28 days to file an amended complaint.

Plaintiff then filed a notice of his intention to stand on his complaint. The trial court dismissed the complaint with prejudice, and plaintiff filed a timely notice of appeal.

Plaintiff contends that the trial court erred in dismissing his breach of contract counts on the basis of the one-year limitations period in section 8--101. He argues that the Act relates only to tort liability and expressly disclaims any intention to affect liability based on contract. Instead, plaintiff contends, the court should have applied either the 5-year limitations period governing actions for breach of oral contracts (735 ILCS 5/13--205 (West 1994)) or the 10-year period governing actions on written contracts (735 ILCS 5/13--206 (West 1994)).

Defendant responds that the plain language of section 8--101 applies to any civil action "for any injury" and broadly defines "civil action" as "any action, whether based upon the common law or statutes or Constitution of this State." 745 ILCS 10/8--101 (West 1994). Because an "injury" may include an injury to a property right such as a contractual right to employment, defendant argues that that section bars plaintiff's cause of action.

The primary purpose of a section 2--619 motion is to dispose of issues of law or easily proved issues of fact. A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243 Ill. App. 3d 905, 912-13, 183 Ill. Dec. 356, 611 N.E.2d 619 (1993). We review de novo the granting of a motion to dismiss. M.E.H. v. L.H., 283 Ill. App. 3d 241, 246, 218 Ill. Dec. 702, 669 N.E.2d 1228 (1996), aff'd, 177 Ill. 2d 207, 226 Ill. Dec. 232, 685 N.E.2d 335 (1997).

Previous cases have held that the five-year limitations period applies to an action against a governmental entity for the breach of an unwritten employment contract. Burris v. School Board District No. 189, 70 Ill. App. 3d 572, 577, 26 Ill. Dec. 872, 388 N.E.2d 873 (1979); Wilson v. Board of Education of Limestone-Walters School District No. 316, 127 Ill. App. 3d 433, 436, 82 Ill. Dec. 341, 468 N.E.2d 995 (1984). Because it does not appear that the applicability of section 8--101 was specifically raised, those cases have limited precedential value in this case ...


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