THE VILLAGE OF CAMPTON HILLS, Plaintiff and Defendant-Appellee and Cross-Appellant,
COMCAST OF ILLINOIS V, INC., Defendant and Plaintiff and Counterdefendant The County of Kane, Defendant and Counterplaintiff-Appellant and Cross-Appellee.
from the Circuit Court of Kane County. Nos. 13-L-134
13-MR-279, Honorable Mark A. Pheanis, Judge, Presiding.
McLAREN JUSTICE delivered the judgment of the court, with
opinion. Justices Jorgensen and Bridges concurred in the
judgment and opinion.
1 This action involves a dispute regarding which government
unit is entitled to certain cable franchise fees from Comcast
of Illinois V, Inc. (Comcast) for 2008 through 2012. The
Village of Campton Hills (Village) filed suit against Comcast
to recover the fees. Comcast filed a declaratory judgment
action against the Village and the County of Kane (County) to
decide the question, as Comcast had paid fees to both the
County and the Village at different times during the
five-year period. The County filed a counterclaim against
Comcast for recovery of unpaid fees and for indemnification.
On cross-motions for summary judgment, the trial court
determined that, because the Village had incorporated in
2007, it was entitled to the fees for the contested five-year
period, and the court ordered Comcast to pay $283, 644.44,
the amount Comcast owed for that period. The trial court also
ordered the County to reimburse Comcast $410, 243.73 for the
fees it paid the County during the five-year period. The
trial court denied the County's claim for indemnification
2 The County appeals, arguing that the trial court exceeded
its authority by reforming the contract between it and
Comcast and that the trial court erred by denying the
County's indemnification claim against Comcast. The
Village cross-appeals, arguing that the trial court erred by
determining that incorporation of a municipality and
annexation have the same meaning pursuant to section 5-1095
of the Counties Code (55 ILCS 5/5-1095 (West 2016)). For the
reasons that follow, we affirm the trial court's judgment
and we dismiss the Village's cross-appeal.
3 I. BACKGROUND
4 In March 1988, the County passed Kane County Ordinance No.
88-31 (eff. Mar. 8, 1988) (Ordinance No. 88-31) establishing
a franchise framework for cable services in unincorporated
areas of the County, which included the unincorporated area
that later became the Village. Comcast is the successor in
interest to the original franchise named in Ordinance No.
5 Section 11(a) of Ordinance No. 88-31 provided in part:
"The payments required under this section shall continue
to the length and extent allowed by law even though all or
part of its designated area becomes incorporated by a
municipality within the effective term of this
ordinance." Kane County Ordinance No. 88-31 (eff. Mar.
13 of Ordinance No. 88-31 provided that "[t]his
ordinance shall remain in full force and effect until
November 2003." Id. Beginning in November 2004,
the Kane County Board passed annual resolutions purporting to
extend Ordinance No. 88-31.
6 In April 2007, the Village was incorporated. On December
31, 2007, the Village and Comcast entered into a franchise
agreement, effective January 1, 2008.
7 In March 2013, the Village filed a complaint against
Comcast for recovery of unpaid franchise fees. Later that same
month, Comcast filed a declaratory judgment action against
the Village and the County to determine which party was
entitled to the franchise fees Comcast had paid to both
parties for the years 2008 through 2012.
8 In May 2013 the County filed a counterclaim against Comcast
for recovery of unpaid franchise fees and for
indemnification. The County alleged the following:
"Comcast has been and is still subject to Ordinance
88-31. It has operated under the Ordinance for many years and
continues to do so today. In fact, Comcast officials
continued to negotiate with the County about entering into a
'franchise agreement' through 2011 and 2012 until the
County learned Comcast failed to pay certain franchise fees
in August 2012. *** Under the terms of the Ordinance, State
law, and custom [and] practice, [Comcast] had an obligation
to [pay franchise fees] for a five year period commencing on
January 16, 2008. It did so, unbeknownst to the County, until
it paid only partial franchise fees in 2011, and [paid] no
franchise fees in 2012 or 2013."
9 The County further alleged that it was entitled to
"expenses including audit expenses, county staff time,
costs and reasonable attorney fees for which Comcast is
responsible [(pursuant to Ordinance 88-31, section 4,
entitled 'OPERATOR LIABILITY AND
INDEMNIFICATION')]." The County sought the
following: (a) the unpaid franchise fees; (b) reasonable
attorney fees, costs, the value of time invested by County
staff, and other out-of-pocket expenses incurred by the
County; (c) prejudgment interest; and (d) other relief as
determined by the court. The County attached Ordinance No.
88-31 and the resolutions purporting to extend Ordinance No.
88-31. The resolutions are listed below:
November 9, 2004
November 30, 2005
November 14, 2006
November 30, 2007
December 11, 2007
November 30, 2008
November 12, 2008
November 30, 2009
November 8, 2011
November 30, 2012
December 11, 2012
November 30, 2013
trial court consolidated the cases.
10 In August 2016, the Village filed a motion for partial
summary judgment, arguing the following. Based on Ordinance
No. 88-31, the County's franchise originally expired in
November 2003 and, although the County extended the
franchise, it expired when the Village granted a franchise to
Comcast on December 31, 2007. Section 5-1095(a) of the
Counties Code (55 ILCS 5/5-1095(a) (West 2016)) limited the
County's franchise authority to the territory outside the
boundaries of the Village, a municipality.
11 Section 5-1095(a) of the Counties Code provides in
"(a) The County Board may license, tax or franchise the
business of operating a community antenna television system
or systems within the County and outside of a municipality,
as defined in Section 1-1-2 of the Illinois Municipal Code.
When an area is annexed to a municipality, the annexing
municipality shall thereby become the franchising authority
with respect to that portion of any community antenna
television system that, immediately before annexation, had
provided cable television services within the annexed area
under a franchise granted by the county, and the owner of
that community antenna television system shall thereby be
authorized to provide cable television services within the
annexed area under the terms and provisions of the existing
franchise. In that instance, the franchise shall remain in
effect until, by its terms, it expires, except that any
franchise fees payable under the franchise shall be payable
only to the county for a period of 5 years or until, by its
terms, the franchise expires, whichever occurs first. After
the 5 year period, any franchise fees payable under the
franchise shall be paid to the annexing municipality."
12 The Village also argued that annexation is not the same as
incorporation and that, thus, the five-year period provided
in section 5-1095 of the Counties Code did not apply. The
Village asked the trial court to order Comcast to pay the
franchise fees that were improperly paid to the County, to be
established based on the gross revenue allocable to