No. 2-15-1084 Opinion filed June 20, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE VILLAGE OF EAST DUNDEE, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellant, ) ) v. ) No. 15-MR-428 ) THE VILLAGE OF CARPENTERSVILLE, ) WAL-MART STORES, INC., and ) WAL-MART REAL ESTATE BUSINESS ) TRUST, ) Honorable ) David R. Akemann, Defendants-Appellees. ) Judge, Presiding. _________________________________________________________________________

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Jorgensen concurred in the judgment and opinion.

OPINION

¶1 This is the Village of East Dundee’s (East Dundee) second lawsuit against the Village of

Carpentersville (Carpentersville) and Wal-Mart Stores, Inc. (Wal-Mart), 1 arising from Wal-

Mart’s decision to close its retail store in East Dundee and open a Wal-Mart Supercenter less

than 10 miles away, in Carpentersville. See Village of East Dundee v. Village of Carpentersville,

, ¶ 2 (East Dundee I). In East Dundee I, East Dundee sought a

1 East Dundee added Wal-Mart Real Estate Business Trust to the second lawsuit. We

refer to the Wal-Mart defendants collectively as “Wal-Mart.” 2016 IL App 2d 151084

declaratory judgment that Carpentersville was required to make certain findings pursuant to

section 11-74.4-3(q)(13) of the Tax Increment Allocation Redevelopment Act (Act) (65 ILCS

5/11-74.4-3(q)(13) (West 2014)), 2 based on documentation submitted by Wal-Mart, before it

could fund any redevelopment project directly related to Wal-Mart’s planned relocation. East

Dundee I,

, ¶ 2. East Dundee also sought a writ of prohibition, a

writ of mandamus, and an injunction. East Dundee I,

, ¶ 2. The first

suit was involuntarily dismissed for lack of ripeness. East Dundee I,

-

U, ¶ 2. We affirmed. East Dundee I,

, ¶ 31. Because

Carpentersville had not yet made any findings pursuant to section 11-74.4-3(q)(13), there was no

way to predict whether defendants would violate that section. East Dundee I,

, ¶ 31.

¶2 On April 6, 2015, East Dundee filed the instant lawsuit, 3 also arising from Wal-Mart’s

planned relocation. East Dundee alleged that the controversy was ripe, because Carpentersville

had made the necessary findings but failed to require evidence from Wal-Mart that its closure of

the East Dundee store was due to circumstances beyond its control. The trial court granted

defendants’ motions for involuntary dismissal on the ground that East Dundee lacked standing.

East Dundee appeals that order, as well as the orders denying its motions for substitution of

2 Section 11-74.4-3(q)(13) requires the municipality’s “reasonable finding” that the

store’s closing is beyond the control of the retailer, in that the store’s location contained

inadequate space, had become economically obsolete, or was no longer a viable location for the

retailer. 65 ILCS 5/11-74.4-3(q)(13) (West 2014). 3 East Dundee initially sued the Wal-Mart entities as respondents in discovery. Wal-Mart

was converted to a named defendant on its own motion.

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judge as of right and for leave to file an amended complaint. We reverse and remand for further

proceedings.

¶3 I. BACKGROUND

¶4 The purpose of the Act is to eradicate municipal blight by redeveloping blighted areas.

People ex rel. City of Canton v. Crouch,

(1980). The Act authorizes the

passage of an ordinance designating a redevelopment project area and approving a

redevelopment plan. Crouch,

. Once such an ordinance is adopted, a

municipality is granted numerous powers to carry the plan into effect, including incurring

redevelopment costs. Crouch,

. Relevant here, section 11-74.4-3(q)(13)

provides that redevelopment costs may not include costs that would provide “direct financial

support” to a retail entity that is commencing operations in the redevelopment project area while

simultaneously terminating operations at another location within 10 miles of the redevelopment

project area but outside the boundaries of the municipality. 65 ILCS 5/11-74.4-3(q)(13) (West

2014). An exception to the 10-mile prohibition exists if closing the operation is for reasons

beyond the retailer’s control, as documented by the retailer. For the exception to apply, the

municipality must make a reasonable finding that the current location contained inadequate

space, had become economically obsolete, or was no longer a viable location for the retailer. 65

ILCS 5/11-74.4-3(q)(13) (West 2014).

¶5 East Dundee’s April 6, 2015, complaint for declaratory and injunctive relief alleged as

follows. East Dundee and Carpentersville share a border. Wal-Mart has operated a retail store in

East Dundee within 1.8 miles of the proposed Carpentersville location. Wal-Mart had

determined that the East Dundee store was not inadequate or economically obsolete, and East

Dundee was willing to assist Wal-Mart in expanding the East Dundee store. On May 1, 2012,

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Carpentersville approved a “Route 25 Redevelopment Plan” in accordance with the Act. The

Carpentersville redevelopment project area is blighted. In August 2012, Wal-Mart informed East

Dundee that it was closing the East Dundee store in order to relocate to the Carpentersville

redevelopment project area. Wal-Mart never documented that closing the East Dundee store was

for reasons beyond its control. Wal-Mart applied to Carpentersville for a $4.3 million

reimbursement related to acquiring land and constructing the new store, indicating that it would

not build the Carpentersville store unless it received the reimbursement. Carpentersville

unreasonably approved Wal-Mart’s application.

¶6 East Dundee asserted that it was entitled to declaratory and injunctive relief, because the

closure of the East Dundee Wal-Mart store would cause “significant economic and social

damages” to East Dundee. Specifically, East Dundee alleged that it would lose sales tax

revenues and property tax receipts.

¶7 The matter was assigned to the same judge who presided in East Dundee I. On April 28,

2015, East Dundee filed a motion for substitution of judge as of right pursuant to section 2-

1001(a)(2)(ii) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2)(ii) (West 2014)).

The motion alleged that the trial court had not ruled on any substantive issue in the case. On

May 1, 2015, Carpentersville 4 filed its opposition to the motion, arguing that the instant

complaint was a refiling of the previous lawsuit. Carpentersville relied on the trial court’s order

that involuntarily dismissed the previous suit, which stated that “the [a]mended [c]omplaint

[was] dismissed subject to being refiled in the event” that the matter became ripe.

Carpentersville contended that the court in the previous suit made substantive rulings when it

4 Wal-Mart had not yet been converted to a defendant.

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denied East Dundee’s request for a temporary restraining order and dismissed the suit. On June

17, 2015, the court denied East Dundee’s motion for substitution of judge.

¶8 On April 29, 2015, Wal-Mart, now a party defendant, filed a motion to dismiss the

complaint pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2014)). Wal-Mart

asserted that the complaint should be dismissed pursuant to section 2-615 of the Code (735 ILCS

5/2-615 (West 2014)), because the Act does not give East Dundee a private right of action. Wal-

Mart also asserted that the complaint should be dismissed pursuant to section 2-619(a)(9) of the

Code (735 ILCS 5/2-619(a)(9) (West 2014)), because East Dundee lacked standing to sue to

invalidate Carpentersville’s approval of Wal-Mart’s reimbursement application. Carpentersville

joined in the section 2-619(a)(9) motion. On September 29, 2015, the court entered a written

order finding that East Dundee lacked standing. The court did not reach the private-right-of-

action issue. East Dundee filed a timely appeal.

¶9 II. ANALYSIS

¶ 10 East Dundee first contends that the court erred in denying its motion for substitution of

judge as a matter of right. Section 2-1001(a)(2)(ii) of the Code provides that a party is entitled to

one substitution of judge without cause, as a matter of right, where it is presented before trial or

hearing begins and before the judge to whom it is presented has ruled on any substantial issue in

the case. 735 ILCS 5/2-1001(a)(2)(ii) (West 2014). The right to a substitution of judge under

this section is absolute. Chicago Transparent Products, Inc. v. American National Bank & Trust

Co. of Chicago,

(2002). The provisions of the statute are to be

liberally construed, and where a party meets the statutory requirements, the trial court has no

discretion to deny the request, unless it is shown that the motion was made to delay or avoid trial.

Sahoury v. Moses,

(1999). Because the trial court has no discretion to

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deny a proper motion for substitution of judge as of right, the appellate court reviews such a

ruling de novo. Rodisch v. Commacho-Esparza,

(1999). Further, our

review should lean toward favoring, rather than defeating, a request for substitution of judge.

Rodisch,

.

¶ 11 East Dundee argues that the motion for substitution was timely and that it was brought

before the court made any substantial ruling in the case. Indeed, defendants 5 do not object that

the motion was untimely. However, they assert that the court made substantial rulings in the

previous case. Defendants view the 2015 complaint as a continuation of the previous litigation

for purposes of the substitution-of-judge statute. They rely on the court’s August 30, 2013, order

that “[t]he amended complaint [was] dismissed subject to being refiled.” Defendants argue that,

because the previous complaint and the 2015 complaint concerned the same cause of action, the

2015 pleading was a refiling, giving the court discretion to deny the motion for substitution of

judge.

¶ 12 The issue is whether Bowman v. Ottney,

, upon which defendants rely, is

dispositive. In Bowman, our supreme court construed section 2-1001(a)(2)(ii) of the Code and

its effect in relation to the voluntary dismissal and refiling provisions of the Code. Bowman,

. In Bowman, the plaintiff voluntarily dismissed her complaint pursuant to

section 2-1009(a) of the Code (735 ILCS 5/2-1009(a) (West 2014)) after the court made

substantial rulings in her medical malpractice case, but before trial. Bowman,

. Four months later, the plaintiff refiled the complaint, asserting the identical claim, in

accordance with section 13-217 of the Code (735 ILCS 5/13-217 (West 2014) (allowing the

refiling of a voluntarily dismissed complaint within one year)). The second complaint was

5 Wal-Mart adopted Carpentersville’s arguments on appeal.

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docketed under a new number but was assigned to the same judge who presided over the first

proceeding. Bowman,

. The plaintiff immediately filed a motion for

substitution of judge as of right, and the defendant objected on the ground that it was untimely

because the judge had made substantial rulings on the prior complaint. Bowman,

. The trial court denied the motion for substitution of judge but certified the question

of whether a trial judge has discretion to deny a motion for substitution of judge as of right where

the case was previously dismissed pursuant to section 2-1009 of the Code and then was refiled.

Bowman,

. The appellate court answered that question in the affirmative.

Bowman,

(citing Bowman v. Ottney,

).

¶ 13 In Bowman, our supreme court emphasized that it was considering only the narrow

question that was certified to the appellate court, namely, the effect of section 2-1001(a)(2)(ii) in

relation to the voluntary dismissal and refiling provisions of the Code. Bowman,

. The court held that the voluntary dismissal and refiling of a cause of action does

not “reset the clock” with respect to the substitution of a judge who previously made substantive

rulings in the prior proceeding. Bowman,

. The court pointed out that the

plaintiff had an absolute right to a substitution of judge in the first proceeding but failed to use it

before the judge made a substantive ruling. Bowman,

. The court stated

that the plaintiff could not use the voluntary dismissal and refiling provisions to accomplish in

the second suit what she was precluded from doing in the earlier suit. Bowman,

.

¶ 14 Our supreme court had not decided Bowman when Carpentersville argued the issue to the

court below. However, Carpentersville relied, inter alia, on the appellate court’s decision in

Bowman. In this appeal, defendants note that our supreme court affirmed the appellate court in

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Bowman, and they argue that this case is indistinguishable because East Dundee’s 2015

complaint embodied the same cause of action as its earlier complaint.

¶ 15 Bowman is inapplicable to the facts in the present case. As noted above, our supreme

court decided a narrow issue involving the relationship between section 2-1001(a)(2)(ii) and the

sections of the Code governing voluntary dismissals and refiling. The holding in Bowman is

necessarily confined to its facts, because the scope of review was limited to the question certified

by the trial court. See Hudkins v. Egan,

(2006) (the scope of review in

an interlocutory appeal under Rule 308 is ordinarily limited to the question certified by the trial

court).

¶ 16 Furthermore, in Bowman, the court’s decision hinged on the fact that the plaintiff had

control over the procedural posture of the case. “[The plaintiff] cannot use the voluntary

dismissal and refiling provisions to accomplish in the 2013 suit what she was precluded from

doing in the 2009 suit.” Bowman,

. The supreme court all but accused the

plaintiff of gamesmanship, where she voluntarily dismissed her complaint after four years of

rulings by the trial court only to refile the same complaint four months later. The court observed:

“This is precisely the type of procedural maneuvering that section 2-1001 is designed to

prevent.” Bowman,

.

¶ 17 In contrast, East Dundee’s previous complaint was involuntarily dismissed. East Dundee

could not, and did not, use the refiling provisions of the Code. Section 13-217 gives a plaintiff

who has taken a voluntary dismissal the right to refile the cause of action within one year.

Fiorito v. Bellocchio,

. Section 13-217 revives a plaintiff’s

previously filed complaint, where no adjudication on the merits has been obtained. Fiorito,

. Here, East Dundee’s previous complaint was dismissed as a result of

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a substantive legal deficiency. East Dundee I,

, ¶ 24. The dismissal

of a complaint for failure to state a cause of action is an adjudication on the merits. Doe v.

Gleicher,

(2009). Accordingly, East Dundee was entitled to a

substitution of judge as of right.

¶ 18 East Dundee cites the heretofore well-established rule that an order is void if it is entered

after a motion for substitution of judge is improperly denied. See Aussieker v. City of

Bloomington,

(2005). However, the voidness of such orders is

called into question by LVNV Funding, LLC v. Trice,

, where our supreme

court stated that a judgment is void only if the court lacks jurisdiction. Where the court

possesses jurisdiction, the failure to comply with a statutory requirement or prerequisite does not

result in a void order. LVNV Funding, LLC,

, ¶ 37. Nevertheless, such an order

is unauthorized and must be vacated.

¶ 19 Defendants posit that we can affirm the dismissal of the complaint under Illinois Supreme

Court Rule 366(a)(5) (eff. Feb. 1, 1994), which gives the appellate court authority to “enter any

judgment and make any order that ought to have been given or made.” Defendants do not

elaborate on how Rule 366(a)(5) enables us to affirm an order that was entered without authority,

and we find no such power in the rule. Accordingly, we vacate the order dismissing the

complaint, reverse the order denying East Dundee’s motion for substitution of judge as of right,

and remand this matter with directions to grant the motion for substitution of judge.

¶ 20 Vacated in part and reversed in part; cause remanded with directions.

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