The opinion of the court was delivered by: Justice Thomas
Docket No. 89963-Agenda 24-March 2001.
This case arises from the Village of Bloomingdale's denial of a zoning petition submitted by CDG Enterprises, Inc., and presents two issues for our review. First, whether the Illinois Constitution permits imposition of the common law "corrupt or malicious motives" exception to certain immunities afforded by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/1-101 et seq. (West 1998)). Second, whether a claim for quasi- contract is proper under section 2-101(a) of the Act (745 ILCS 10/2-101(a) (West 1998)) and whether the counterplaintiff alleged sufficient facts for this court to impose a quasi-contract remedy. For the reasons set forth below, we hold that the Illinois Constitution prohibits the insertion of the common law "corrupt or malicious motives" exception into the immunities provided by the Act. In addition, we hold that, though section 2-101(a) of the Act, which preserves municipal liability for contract, does not contemplate the remedy of quasi- contract, the counterplaintiff has failed to sufficiently assert a claim for that remedy. Accordingly, we reverse the appellate court.
Plaintiff, the Village of Bloomingdale (Village), sued CDG Enterprises, Inc. (CDG), in the circuit court of Du Page County, for breach of contract alleging that CDG had not paid for services the Village had provided in reviewing its petition for rezoning and site plan approval. CDG, as counterplaintiff, answered and filed two counterclaims, one for tortious interference with business expectancy and another for recovery under a quasi-contract theory. These counterclaims are at issue in this appeal.
In support of both counts, CDG alleged the following facts, which we will take as true for purposes of this appeal on the Village's motion to dismiss. See Fireman's Fund Insurance Co. v. SEC Donohue, Inc., 176 Ill. 2d 160, 161 (1997). CDG was the contract purchaser of five parcels of land adjacent to the Village of Bloomingdale. In March 1995, CDG petitioned the Village's planning commission to annex the five parcels into the Village and rezone them so that CDG could build a subdivision. CDG's representatives met with the Village's land planner and other officials, including the Village mayor, who allegedly told CDG that the project would be approved. Between April and October 1995, CDG repeatedly appeared before the Village planning commission for public hearings on its petition.
CDG further stated that, in June or July 1995, the Village allegedly: secretly formed a "task force" in order to pursue the acquisition and development of a golf course, which was adjacent to the five parcels; commissioned Planning Resources, Inc., the Village's consultant in charge of reviewing CDG's petition, to prepare a plan to redesign the golf course so that some of the holes would be on the property CDG intended to acquire; and secretly met with other individuals to create opposition to CDG's plan. In August 1995, the Village planning commission voted down CDG's project, with the chairman allegedly pressuring other members to vote against it. Then, in October 1995, the Village's board of trustees voted down CDG's petition at a public hearing. Soon afterward, the Village publicly revealed that it planned to acquire the golf course, and later did so. In addition, one of the parcels was allegedly bought by individuals "closely aligned with certain of the Village's officials." CDG has not claimed that the Village itself acquired any of the five parcels which CDG had intended to purchase.
CDG further alleged that its petition met all the Village's requirements for rezoning and annexation; that CDG took all the action the Village required; that CDG had spent heavily in reliance on its meetings with the Village; and that, after the Village denied the petition, CDG had to cancel its purchase contracts and forfeit some of what it had paid. CDG's projected gross profits from the project were $4.8 million.
Count I of the counterclaim alleged that the Village deliberately frustrated CDG's business expectancy by secretly working to force CDG out of the planned development. While ostensibly reviewing CDG's petition, the Village allegedly planned all along to develop the adjoining golf course and help cronies of certain Village officials purchase one of the five parcels. Count II alleged that, when CDG filed its rezoning petition and paid the required fee, the Village became obligated through quasi-contract to process CDG's petition reasonably and in good faith, which it failed to do. CDG never stated what the Village or any of its employees gained by their alleged misconduct. Both counts sought in damages the projected gross profits of $4.8 million.
The Village moved to dismiss the counterclaims pursuant to section 2-619(a)(9) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 1998)). It asserted sovereign immunity based on various provisions of the Tort Immunity Act (see 745 ILCS 10/2-103, 2-104, 2-106, 2-109, 2-201, 2-205 (West 1998)). The trial court dismissed the counterclaims, holding that both were barred by the Village's sovereign immunity under the Act. The Village then voluntarily dismissed its complaint, and CDG appealed.
Before the appellate court, CDG argued that (1) the Tort Immunity Act did not bar its counterclaims because the Act does not immunize governmental actions undertaken for "corrupt or malicious motives"; and (2) the Act did not bar the second count for quasi-contract because section 2-101(a) of the Act (745 ILCS 10/2-101(a) (West 1998)) specifically preserves municipal liability based on contract.
The appellate court reversed the trial court and held that CDG's tort claim could proceed under the Act. The court rejected the Village's affirmative defenses and held that the general grants of immunity afforded by the Act are limited by the common law exception for "corrupt or malicious motives." 314 Ill. App. 3d 210, 214-15. The appellate court also reversed the trial court as to the second count and held that the Village could be held liable in quasi-contract to process CDG's petition in good faith and according to its usual procedures, and that that claim fell under section 2-101(a) and was, therefore, not barred by the Act. 314 Ill. App. 3d at 215.
The Village appealed and we granted review of both issues under Rule 315(a) (177 Ill. 2d R. 315(a)). Since the trial court dismissed CDG's counterclaim under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1998)), our review is de novo. Henrich v. Libertyville High School, 186 Ill. 2d 381, 386 (1998).
Traditionally, a governmental unit in Illinois was immune from tort liability pursuant to the common law doctrine of sovereign immunity. In 1959, however, this court abolished the doctrine in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11, 25 (1959). Then, in response to Molitor, the legislature in 1965 enacted the Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1998)). Under the Act, Illinois adopted the general principle that local governmental units are liable in tort, but limited this liability with an extensive list of immunities based on specific government functions. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 506 (1990). Finally, in 1970, the state adopted a new constitution and with it a new provision regarding sovereign immunity. Article XIII, section 4, of the 1970 Constitution states: "Except as the General Assembly may provide by law, sovereign immunity in this State is abolished." Ill. Const. 1970, art. XIII, §4. Today, therefore, the tort liability of a local public entity or employee is expressly controlled both by the constitutional provision and by legislative prerogative as embodied in the Tort Immunity Act. Burdinie, 139 Ill. 2d at 507.
The purpose of the Tort Immunity Act is to protect local public entities and public employees from liability arising from the operation of government. 745 ILCS 10/1-101.1(a) (West 1998). "By providing immunity, the legislature sought to prevent the diversion of public funds from their intended purpose to the payment of damage claims." Bubb v. Springfield School District 186, 167 Ill. 2d 372, 378 (1995). The Tort Immunity Act grants only immunities and defenses; it does not create duties. 745 ILCS 10/1-101.1(a) (West 1998). "Rather, the Act merely codifies those duties existing at common law, to which the subsequently delineated immunities apply." Barnett v. Zion Park District, 171 Ill. 2d 378, 386-88 (1996) (finding that park district owed plaintiff a common law duty of reasonable care); In re Chicago Flood Litigation, 176 Ill. 2d 179, 192 (1997) ("governmental units are liable in tort on the same basis as private tortfeasors unless a tort immunity statute imposes conditions upon that liability"); Bubb, 167 Ill. 2d at 378; West v. Kirkham, 147 Ill. 2d 1, 14 (1992); Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 412 (1991). The existence of a duty and the existence of an immunity, therefore, are separate issues. Barnett, 171 Ill. 2d at 388. Once a court determines that a duty exists, it then addresses whether the governmental unit or employee is immune from liability for a breach of that duty. See Barnett, 171 Ill. 2d at 388. In other words, because the Act implicitly recognizes duties which already exist at common law, we may refer to the common law to determine the duties a local public entity holds. But to determine whether that entity is liable for the breach of a duty, we look to the Tort Immunity Act, not the common law.
II. CDG's Counterclaim in Tort
This court has already established a significant line of precedent regarding the existence of common law exceptions to immunities granted by the Act. The first case relevant to our discussion is Barnett v. Zion Park District, 171 Ill. 2d 378 (1996), where we considered whether the Act afforded immunity to a park district from a claim arising from the drowning of a 10-year-old boy in the district's pool. The district claimed immunity under section 3-108(a), which provides in relevant part that, "neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property." 745 ILCS 10/3-108(a) (West 1992). The plaintiff alleged that the boy drowned in the vicinity of six lifeguards despite requests for help by bystanders and, therefore, the park district was liable for "willful and wanton misconduct." Barnett, 171 Ill. 2d at 391.
In dismissing the plaintiff's claim in Barnett, we held that though the district owed the child a common law duty of reasonable care, it was immune under section 3-108 from liability for breaching that duty. Barnett, 171 Ill. 2d at 388, 391-92. We observed that when the legislature intended to limit an immunity to cover only negligence and not willful and wanton misconduct, it had "unambiguously done so." Barnett, 171 Ill. 2d at 391, citing e.g., 745 ILCS 10/2-202, 2-210, 3-106, 3-109(c)(2), 4-105, 5-103(b), 5-106 (West 1992). Unlike those instances, however, the plain language of section 3-108 contained no exception for willful and wanton misconduct. We reasoned that "[s]ince the legislature omitted such a limitation from the plain language of section 3-108, then the legislature must have intended to immunize liability for both negligence and willful and wanton misconduct." Barnett, 171 Ill. 2d at 391-92. We concluded, therefore, that "given the full immunity provided by the legislature in the unconditional language of section ...