United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT U.S. DISTRICT JUDGE
matter comes before the court on Plaintiff's Motion for
Summary Judgment (Doc. 86), and Defendant City of Mounds'
Motion for Summary Judgment (Doc. 88). For the following
reasons, Plaintiff's Motion is GRANTED
and Defendant's Motion is DENIED.
controversy arises from what Westmore Equities
(“Westmore”), a Missouri limited liability
company in the business of developing real estate for Dollar
General Corporation, contends is a breach of contract between
itself and the City of Mounds, (“City”) an
Illinois municipal corporation located in Pulaski County,
Illinois. (Doc. 1).
contract in controversy called for Westmore to develop the
property located on 764 S. Blanche, Mounds, Illinois
(“Property”) into a Dollar General store. In
return for developing the Property, the City agreed to
reimburse Westmore from Tax Increment Finance
(“TIF”) funds, 75% of the annual TIF revenues,
capped to a maximum $350 thousand, over the 23-year life of
the TIF District, as prescribed by the TIF Act
(“Act”)(Doc.1 ¶ 44). There were multiple
resolutions passed by Mounds City Council as it pertained
to both creating the TIF district and inducing Westmore to
build the Dollar General store. One such resolution, an
“Inducement Resolution, ” specifically stated
that it was understood that Westmore would be making
expenditures and redeveloping land that would not be
developed by Westmore, but for the use of TIF financing.
on April 21, 2010, the City and Westmore entered into the
Redevelopment Agreement (“Agreement”), which
acknowledged that a good portion of Westmore's
expenditures would be reimbursed through TIF funds, inter
alia (Doc. 86, ¶ 1). However, the specific budget
amount - as it pertains to Westmore developing the Property
for Dollar General -was not presented for the City
Council's approval. Instead, the mayor entered into an
exclusive contract with Westmore based on the prior
resolutions ratified by the City. Once that Agreement was
executed, Westmore invested $900 thousand in developing the
first payment request of $16, 769.63 was made by Westmore to
the City in July 2013 and the City paid pursuant to the
Agreement. It was not until the following year, on September
2, 2014, that the City, through its agent Municipal
Consulting Group, Ltd., notified Westmore that the Agreement
was void. The City informed Westmore that it was legally
prohibited from paying Westmore from the Special Allocation
Fund because the Agreement did not receive approval from the
City Council. Following the notification from the City,
Westmore filed this instant action. (Doc. 1).
is asking the Court for declaratory judgment pursuant to 28
U.S.C. § 2201 that the Contract is valid and binding, or
in the alternative to find that the theory of estopple
applies in this matter. (Docs. 1 and 86).
City contends that as “non-home rule”
municipality, it possesses a limited grant of powers and that
the Inducement Resolution did not authorize the execution of
the contract at issue. (Doc. 88, ¶ 3). Further, the City
contends that neither estoppel nor ratification apply in this
case because “[a] contract which is prohibited by law
cannot be later rendered valid by estoppel or
ratification.” (Doc. 88, ¶ 10). The City asks the
Court to deny the Plaintiff's Motion for Summary
Judgment,  and find the Agreement between itself, and
Westmore ultra vires, or more simply put, is beyond
its authority as a “non-home rule” Illinois
municipality, and therefore void.
judgment must be granted “if the movant shows that this
is no genuine disputes to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); Celotex Corp. v. Catrett, 477, U.S. 317, 322
(1986); Spath v. Hayes Wheels Int'l-Ind., Inc.,
211 F.3d 392, 396 (7th Cir. 2000). The reviewing
court must construe the evidence in the most favorable light
to the nonmoving party and drawing all reasonable inferences
in favor of that party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Chelios v.
Heavener, 520 F.3d 678, 685 (7th Cir. 2008);
Spath, 211 F.3d at 396.
initial summary judgment burden of production is on the
moving party to show the Court that there is no reason to
have a trial. Celotex, 477 U.S. at 323;
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir.
1992). Where the non-moving party carries the burden of proof
at trial, the moving party may satisfy its burden of
production in one of two ways. It may present evidence that
affirmatively negates an essential element of the non-moving
party's case, Fed.R.Civ.P. 56 (c)(1)(A), or it may point
to an absence of evidence to support an essential element of
the non-moving party's case without actually submitting
any evidence, Fed.R.Civ.P. 56 (c)(1)(B); Celotex,
477 U.S. at 322-25; Modrowski, 712 F.3d at 1169.
Where the moving party fails to meet its strict burden, a
court cannot enter summary judgment for the moving party even
if the opposing party fails to present relevant evidence in
response to the motion. Cooper v. Lane, 969 F.2d
368, 371 (7th Cir. 1992).
responding to a summary judgment motion, the non-moving party
may not simply rest upon the allegations contained in the
pleadings but must present specific facts to show that a
genuine issue of material facts exists. Celotex, 477
U.S. at 322-26; Anderson, 477 U.S. at 256-57;
Modrowski, 712 F.3d at 1168. A genuine issue of
material fact is not demonstrated by the mere existence of
“some alleged factual dispute between the parties,
” Anderson, 477 U.S. at 247, or by “some
metaphysical doubt as to the material facts, ”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rather, a genuine issue of material
fact exists only if “a fair minded jury could return a
verdict for the [nonmoving party] on the evidence
presented.” Anderson, 477 U.S. at 252. As the
Seventh Circuit Court of Appeals has repeatedly stated,
“summary judgment is the ‘put up or shut up'
moment in the life of a case.” AA Sales &
Assocs. v. Coni-Seal, Inc., 550 F.3d 605, 612 (7th Cir.
is no real dispute over the relevant facts in this matter.
The parties agree that a contract was executed and the
contract language speaks for itself. The parties disagree,
however, whether as a matter of law the contract is void and
unenforceable. The Court finds that it can decide these
matters based on the filings alone.
other issues were presented, the primary issue before the
Court is whether, absent approval from the City council, a
binding and enforceable contract existed between the City and
Westmore. In order to arrive to the answer to that question,
the Court must first examine the City's power to enter
into said contract and the procedures involved with those
powers as it relates to TIFs. Second, the Court must resolve
whether it was incumbent on the mayor of the City to receive
approval from the City Council before executing the Agreement
to Illinois law, municipalities that are “non-home
rule” units have limited powers. Vill. Of DePue,
Ill. V. Exxon Mobil Corp., 537 F.3d 775, 787 (7th Cir.
2008); Hawthorne v. Vill. of Olympia Fields, 790
N.E.2d 832, 840 (Ill. 2003). There are six basic powers given
to “non-home rule” municipalities by Article VII,
section 7 of the Illinois Constitution of 1970. Those powers
(1) The power to make local improvements by special
assessments; (2-4) the power, through referendum, to adopt,
alter or repeal their forms of government and to provide for
their officers, manner of selection and terms of office; and
(5-6) the power to incur debt and to levy or impose