Appeal from the Circuit Court of Cook County No. 94 CH 3945 Honorable Sidney Jones III, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
Plaintiff William J. Sullivan (Sullivan) brought suit against the defendants, the Board of Commissioners of the Oak Lawn Park District (Park District) and its officers. Sullivan protested the use of funds collected by the Park District under a museum tax levy and sought the refund of the part of his real estate tax that was used for the tax levy; however, he did not protest the tax. Sullivan then brought a motion for class certification seeking to represent all similarly situated taxpayers in Oak Lawn. In denying this motion, the trial court found that Sullivan was an inadequate representative. The Park District then brought a motion for summary judgment which the trial court granted. Ultimately, it found that plaintiff failed to protest the use of the funds and that he was guilty of laches. For the reasons that follow, we affirm.
This action focuses on the imposition and collection of a tax from plaintiff Sullivan by the defendant Park District. From 1977 until the present day, the Park District has imposed a tax on the bills sent to plaintiff in the amount of .03% of the assessed valuation of the property. The authority upon which defendants rely in imposing this tax is the Park District Aquarium and Museum Act (Act) (70 ILCS 1290/0.01 et seq. (West 1998)), which provides in pertinent part:
"The corporate authorities of cities and park districts having the control or supervision of any public park or parks, are hereby authorized to * * * permit the directors or trustees of any corporation or society organized for the construction or maintenance and operation of an aquarium or museum as hereinabove described to erect, enlarge, ornament, build, rebuild, rehabilitate, improve, maintain and operate its aquarium or museum or museums within any public park now or hereafter under the control or supervision of any city or park district * * *." 70 ILCS 1290/1 (West 1998).
Furthermore, the Act allows for levies for the purposes limited solely to establishing, acquiring, completing, erecting, rehabilitating, improving, operating, maintaining and caring for such aquariums and museums and the building and grounds thereof. Any funds collected pursuant to the levy are required to be kept separate from the general operating funds of the district and village. 70 ILCS 1290/2 (West 1998).
Sullivan testified that in approximately 1980 he began to suspect that the funds being collected under the Park District levy were not being properly used and that they were being spent for purposes other than those for which the Act provides. In addition, Sullivan claims that he began to question the validity of the tax levy at board meetings with Park District counsel and was always reassured that the tax was validly imposed and that the Park District needed to accumulate money to buy a museum building.
During the time frame of this litigation, Sullivan held various positions, including a time where he was president of the Oak Lawn Historical Society--an Illinois nonprofit organization. The Historical Society is not a museum, and plaintiff claims that it is not affiliated with Oak Lawn or the Park District in any manner. Occasionally, the Historical Society was hired by the Village of Oak Lawn to assist in community activities and to perform some work for the Park District. At one point, the Historical Society prepared a feasibility study on the possible use of schools as museums. However, plaintiff asserts that at no time did he ever receive any payment directly from nor did he ever bill the Park District. All of Sullivan's salary and expense payments came from the Historical Society, which at one time amounted to approximately 20% of his income. Although the Historical Society did receive some donations, the majority of its funds came from the Park District.
Defendants note that after the plaintiff prepared the feasibility studies on the use of two different schools as possible museum sites and authoring various memoranda regarding site selection and budget framework, he concluded that the Clark grammar school could be used as a museum. Plaintiff also performed other tasks for the Park District on behalf of the Historical Society. This included preparing the history of the Park District, working on the Wabash Centennial Project, and working on the old-fashioned Christmas program. At one point, plaintiff admitted that he had received funds from the Park District's museum fund and that he agreed to assist the Park District with its plans concerning a museum.
Plaintiff also testified that the money paid to the Historical Society from the Park District was deposited in the operating account of the Historical Society. And, when plaintiff was asked whether there were records reflecting the exact amount of money he received from the Park District and from any other sources, he replied, "I hope so." However, plaintiff never retrieved the records.
In May of 1994, Sullivan brought this action seeking various forms of relief. He alleged that no museum was created pursuant to the Act and the funds for the levy were not being properly spent. Initially, he sought an injunction that would stop the Park District from improperly using the funds as well as return the funds already improperly used. Defendants filed a motion to dismiss and alleged that they had a museum and that plaintiff's claims were barred by the "voluntary payment doctrine." Defendants' motion was denied.
On May 26, 1998, plaintiff filed his motion for class certification. The trial court heard various discovery-related motions pertaining to this class certification and entered and continued the motion for class certification. During this phase of the litigation, the cause was transferred to another judge, who completed the class certification discovery. Plaintiff notes, in particular, that he filed a motion to strike conclusory affidavits which defendants offered in opposition of class certification. The newly assigned judge denied the motion and held a hearing on class certification on July 21, 1999.
At the hearing, defendants opposed class certification and argued that plaintiff's claim was barred by the voluntary payment doctrine and that plaintiff was an inadequate representative because the Historical Society did, in fact, work for the Park District. The trial court denied the motion for class certification, reasoning that plaintiff had waited to long to bring it and that he was "guilty of laches, and therefore, an inadequate individual to represent the class."
Defendants then filed a motion for summary judgment and argued that the voluntary payment doctrine and laches barred plaintiff's claim. Defendants did not, however, contest the Park District's inappropriate use of the museum funds, nor did they argue that a properly created museum or aquarium had been created. On September 15, 1999, the trial court conducted a hearing on the summary judgment motion and held that all of plaintiff's claims were barred by laches and his failure to protest when he made his payments of his property tax bills. Plaintiff now appeals.
As this court noted in Abrams v. State Farm Fire & Casualty. Co., 306 Ill. App. 3d 545, 548 (1999), our review of the trial court's decision is de novo:
"Summary judgment is appropriate where the pleadings, depositions, admissions, and affidavits, when taken together and in the light most favorable to the non-movant, show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-- 1005(c) (West 1996); Majca v. Beekil, 183 Ill. 2d 407, 416, 701 N.E.2d 1084 (1998). We review the trial court's granting of a summary judgment de novo. In re Estate of Rennick, 181 Ill. 2d 395, 401, 692 N.E.2d 1150 (1998)."
In ruling on a motion for summary judgment, the court must construe the pleadings, depositions, and affidavits strictly against the movant and in favor of the opposing party. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483 (1998). Where reasonable persons could draw divergent inferences from the undisputed material facts or where reasonable minds could differ as to a material fact, summary judgment should be denied and ...