source: Caselaw Access Project

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text:
    IN RE C.P., a Minor
    (The People of the State of Illinois, Petitioner-Appellee, v. Davucci C., Respondent-Appellant).
    NO. 4-18-0310
    Appellate Court of Illinois, Fourth District.
    Filed September 21, 2018
   JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 Davucci C., respondent, is the father of C.P. (born November 4, 2017). In April 2018, the trial court found C.P. to be a ward of the court and vested guardianship of him in the Department of Children and Family Services (DCFS).

¶ 2 Respondent appeals, arguing the trial court lacked jurisdiction to enter the dispositional order because respondent is also a minor and the State failed to serve his parents in accordance with section 2-15 of the Juvenile Court Act of 1987 (Act) ( 705 ILCS 405/2-15 (West 2016) ). We disagree and affirm.

¶ 3 I. BACKGROUND

¶ 4 A. The Petition for Adjudication of Wardship and Pretrial Hearing

¶ 5 In January 2018, the State filed a petition for adjudication of wardship, alleging C.P. was neglected because of his mother's mental illness. At the time the petition was filed, respondent was named as the putative father. Throughout these proceedings, respondent was incarcerated in the Illinois Department of Juvenile Justice.

¶ 6 Later in January 2018, the trial court conducted an admonition hearing at which respondent appeared and requested court-appointed counsel. The court appointed the public defender to represent respondent.

¶ 7 In February 2018, the trial court conducted a pretrial hearing. Respondent appeared in person and with counsel and requested genetic testing to establish paternity. The court granted respondent's request.

¶ 8 B. The Adjudication of Wardship

¶ 9 In March 2018, the trial court conducted an adjudication hearing. The respondent mother stipulated that C.P. was a neglected minor whose environment was injurious to his welfare due to her mental illness.

¶ 10 Regarding respondent, the State asked the trial court to take judicial notice of the mother's stipulation. The State also called respondent to testify. Respondent admitted he had been incarcerated in the Department of Juvenile Justice since May 2017 and had a release date in July 2018. On cross-examination, respondent stated that he did not know if he was C.P.'s father and that he was not aware of the results of any genetic testing. Respondent did not offer any evidence on his behalf. The court found C.P. was a neglected minor whose environment was injurious to his welfare.

¶ 11 C. The Dispositional Hearing

¶ 12 In April 2018, the trial court conducted a dispositional hearing at which respondent appeared in person and with counsel. The parties did not offer any evidence other than a written report prepared by DCFS that recommended guardianship of C.P. be placed in the guardianship administrator of DCFS, who would then determine who would be C.P.'s custodian.

¶ 13 The trial court found C.P. was neglected and it was in his best interest that he be made a ward of the court. The court further found the mother and respondent were unfit and unable, for reasons other than financial circumstances alone, to care for, protect, train, or discipline C.P. and the health, safety, and best interest of C.P. would be jeopardized if he remained in the custody of his parents. See id. § 2-27(1). The court also found that appropriate services aimed at preservation and family reunification had been unsuccessful in rectifying the conditions that led to the finding of unfitness and inability to care for, protect, train, or discipline C.P. Id. § 227(1.5)(a). Therefore, the court removed guardianship of C.P. from the parents and placed guardianship in the guardianship administrator of DCFS. The court advised the mother and respondent they were required to fully cooperate with DCFS or they risked a termination of their parental rights.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 Respondent appeals, arguing the trial court lacked jurisdiction to enter the dispositional order because (1) respondent is also a minor and (2) the State failed to serve his parents in accordance with section 2-15(1) of the Act. Id. § 2-15(1). We disagree and affirm.

¶ 17 A. The Applicable Law

¶ 18 Resolution of this case depends upon the interpretation of a statute. The rules governing statutory interpretation are well settled. The cardinal rule of statutory construction is to ascertain and give effect to the legislative intent. In re Jarquan B. , 2017 IL 121483, ¶ 22, 421 Ill.Dec. 901, 102 N.E.3d 182. "The most reliable indicator of that intent is the plain and ordinary meaning of the statutory language itself." Id. When construing the provisions of the Act, the court should read the Act as a whole, construing words and phrases in light of the other relevant portions of the statute and not as isolated provisions. Id. Statutes should be construed to avoid absurd results. Illinois State Treasurer v. Illinois Workers' Compensation Comm'n , 2015 IL 117418, ¶ 39, 391 Ill.Dec. 18, 30 N.E.3d 288. Questions of statutory interpretation present issues of law and are reviewed de novo . In re Jarquan B. , 2017 IL 121483, ¶ 21, 421 Ill.Dec. 901, 102 N.E.3d 182.

¶ 19 Section 2-15 of the Act addresses which persons are to be served in neglect proceedings, as well as how they are to be served, and provides as follows:

"(1) When a petition is filed, the clerk of the court shall issue a summons with a copy of the petition attached. The summons shall be directed to the minor's legal guardian or custodian and to each person named as a respondent in the petition, except that summons need not be directed to a minor respondent under 8 years of age for whom the court appoints a guardian [ad litem ] if the guardian [ad litem ] appears on behalf of the minor in any proceeding under this Act.
* * *
(5) Service of a summons and petition shall be made by: (a) leaving a copy thereof with the person summoned * * *; (b) leaving a copy at his usual place of abode with some person of the family * * *; or (c) leaving a copy thereof with the guardian or custodian of a minor * * *." 705 ILCS 405/2-15(1), (5) (West 2016).

¶ 20 B. The Parties' Arguments

¶ 21 Respondent argues that the trial court lacked personal jurisdiction over him because his parents were not served in accordance with section 2-15(1) of the Act. Respondent concedes that, as used in the statute, "the minor" is most commonly associated with "the minor who is allegedly abused, neglected, or dependent." However, respondent contends that section 1-3(10) of the Act defines the term "minor" to mean "a person under the age of 21 years subject to this Act." Id. § 1-3(10). Because respondent was born in August 2001, he was only 16 at the time of the proceedings in this case. Accordingly, respondent claims that because he was a minor subject to the Act, the court lacked personal jurisdiction over him because his parents were never served.

¶ 22 The State argues that respondent's interpretation of the statute is absurd and contrary to the plain language of the Act. The State contends "the minor" refers to the minor who is the subject of the underlying proceeding and therefore, respondent's parents did not need to be served for the court to obtain personal jurisdiction over him. Additionally, the State asserts respondent forfeited his right to contest personal jurisdiction by participating in the proceedings and failing to object.

¶ 23 C. This Case

¶ 24 1. "The Minor" Does Not Mean a Minor Parent

¶ 25 We conclude that the statute clearly contemplates that "the minor" in section 2-15 refers to the minor who is the subject of the neglect proceeding. We find convincing support for this conclusion in section 1-5 of the Act, which is titled "Rights of parties to proceedings," and provides, as follows:

"the minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative who are parties respondent have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records and * * * to be represented by counsel." (Emphasis added.) Id. § 1-5(1).

"The" is often used "to indicate that a following noun or noun equivalent is definite or has been previously specified by context or by circumstance." Merriam-Webster's Collegiate Dictionary 1217 (10th ed. 2000). When read in context, the term "the minor" is employed in an identical manner as in section 1-5 throughout the Act. We further conclude that the term "the minor" is used throughout the Act with the clear understanding that "the minor" is the minor who is the subject of the underlying proceeding.

¶ 26 Indeed, given the above, respondent's argument that, because the term "minor" is defined by the Act as "a person under the age of 21 years subject to this Act," every minor must be served through their legal guardians irrespective of their role in the underlying proceeding, is particularly unavailing. Section 1-3 provides definitions for specified words "unless the context otherwise requires." 705 ILCS 405/1-3 (West 2016). If we read the term "the minor" to mean "any minor subject to the Act," absurd results would ensue. It is well established we must construe statutes to avoid absurd results. Illinois State Treasurer , 2015 IL 117418, ¶ 39, 391 Ill.Dec. 18, 30 N.E.3d 288.

¶ 27 Moreover, section 2-15(1) states "[w]hen a petition is filed, the clerk of the court shall issue a summons with a copy of the petition attached." 705 ILCS 405/2-15(1) (West 2016). Section 2-13 provides what a "petition" is and what its contents must be. Id. § 2-13. In that section, "the minor" refers to "the minor upon whose behalf the petition is brought." Id. § 2-13(2)(e). Therefore, reading sections 1-5, 2-13, and 2-15 together, the term "the minor," in the context of section 2-15, means "the minor who is the subject of the underlying proceeding" or "the minor upon whose behalf the petition is brought." These phrases are identical in meaning. Subsection (5) of section 2-15 prescribes the methods of service: (1) personal service, (2) abode service, "or [ (3) ] leaving a copy [of the summons and petition] with the guardian or custodian of a minor ." (Emphases added.) Id. § 2-15(5). Accordingly, section 2-15 itself contemplates that a respondent might be a minor and provides three alternative methods of service, each one fully sufficient to confer personal jurisdiction upon the trial court.

¶ 28 We also note the legislative history of the Act supports our reading. When the legislature amended section 2-15(1) to provide for service upon the minor's custodians or guardians, it expressly stated it was not "limiting the service requirement" but was merely providing for an additional method by which service could be achieved. 84th Ill. Gen. Assem., House Proceedings, May 15, 1986, at 43-44 (statements of Representative Bowman). Respondent does not cite to any authority to suggest service on a minor's legal guardians is the only method of serving a minor.

¶ 29 2. Waiver of Service

¶ 30 In the alternative, it is well settled that "[w]here a juvenile appears before the court and participates in juvenile proceedings, he voluntarily submits to the jurisdiction of the court."

In re H.G. , 322 Ill. App. 3d 727, 736, 255 Ill.Dec. 666, 750 N.E.2d 247, 254 (2001) ; see also In re Shawn B. , 218 Ill. App. 3d 374, 379, 161 Ill.Dec. 142, 578 N.E.2d 269, 273 (1991) ; In re T.O. , 187 Ill. App. 3d 970, 973-74, 135 Ill.Dec. 401, 543 N.E.2d 969, 972 (1989). Indeed, section 2-15(7) provides that "[t]he appearance of * * * a person named as a respondent in a petition, in any proceeding under this Act shall constitute a waiver of service of summons and submission to the jurisdiction of the court." 705 ILCS 405/2-15(7) (West 2016).

¶ 31 Here, respondent appeared, requested and received counsel, requested and received genetic testing, and participated in the proceedings. Though he was incarcerated at the time he appeared, this court has held that an incarcerated defendant may still submit to the jurisdiction of the court through participation. See People v. Rainey , 325 Ill. App. 3d 573, 581, 259 Ill.Dec. 369, 758 N.E.2d 492, 499 (2001) (recognizing incarcerated defendant "had little choice but to appear in court" but acknowledging his submission to court's jurisdiction by his participation and his counsel's express waiver of personal service). Additionally, respondent does not argue, much less demonstrate, that any substantial interests have been prejudiced by the failure to serve his parents. See In re Pronger , 118 Ill. 2d 512, 524-25, 115 Ill.Dec. 390, 517 N.E.2d 1076, 1080-81 (1987) (noting minor respondent was not prejudiced by the lack of personal service). Accordingly, the trial court had personal jurisdiction over respondent.

¶ 32 D. Failure To Join a Necessary Party

¶ 33 Though not argued as such in his brief, the real issue respondent raises is whether his parents, C.P.'s grandparents, should have been joined as necessary parties. However, "a grandparent must be made a party to the proceeding only if: (1) the grandparent is the person having custody and control of the grandchild; or (2) if the grandparent is the nearest known relative and the parent or guardian cannot be found." In re R.M.B. , 146 Ill. App. 3d 523, 529, 100 Ill.Dec. 183, 496 N.E.2d 1248, 1252 (1986) (citing In re Jennings , 68 Ill. 2d 125, 11 Ill.Dec. 256, 368 N.E.2d 864 (1977) ).

¶ 34 Nothing in the record suggests respondent's parents meet any of these qualifications. In fact, the record suggests respondent has never met C.P. It is unclear what interest, if any, respondent's parents have in this case. Accordingly, we conclude respondent's parents were not necessary parties.

¶ 35 III. CONCLUSION

¶ 36 For the reasons stated, we affirm the trial court's judgment.

¶ 37 Affirmed.

Justice Cavanagh concurred in the judgment and opinion.

Justice Holder White specially concurred, with opinion.

¶ 38 JUSTICE HOLDER WHITE, specially concurring:

¶ 39 While I agree with the majority's resolution of this matter, I specially concur to point out paragraphs 32 through 34 (supra ¶¶ 32-34) are unnecessary. Neither party asks us to address whether the parents of respondent father are necessary parties. Given neither party raises this issue, the majority deprives the parties of the opportunity to weigh in on this issue and also robs this court of the benefit of considering briefing on this issue. By raising and resolving this issue sua sponte , the majority provides an advisory opinion on an issue not before the court. See People v. Hampton , 225 Ill. 2d 238, 244, 310 Ill.Dec. 906, 867 N.E.2d 957 (2007).

¶ 40 Thus, I would adopt the majority's resolution after removing paragraphs 32 through 34 (supra ¶¶ 32-34).


text:
    Eddie JOHNSON, in His Official Capacity as Superintendent of the City of Chicago Police Department, and the City of Chicago, Petitioners-Appellees, v. Edward O'CONNOR and the Human Resources Board of the City of Chicago, Respondents
    (Edward O'Connor, Respondent-Appellant).
    No. 1-17-1930
    Appellate Court of Illinois, First District, SECOND DIVISION.
    September 28, 2018
    Christopher Cooper, of Law Office of Christopher Cooper, Inc., of Chicago, for appellant.
    Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth Solomon, Myriam Zreczny Kasper, and Julian N. Henriques Jr., Assistant Corporation Counsel, of counsel), for appellees.
   PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Respondent-appellant Edward O'Connor was removed from a list of eligible candidates for a position as a Chicago police officer based on his admission that he had twice been arrested for domestic battery in 2003 and 2014. Following a hearing on his removal, he was reinstated to the eligibility list by respondent Human Resources Board of the City of Chicago (Board). Petitioners-appellees Eddie Johnson, the Chicago Police Department (CPD) superintendent, and the City of Chicago (petitioners) petitioned for a common law writ of certiorari in the circuit court to review the Board's decision. The court reversed the decision of the Board, and O'Connor appeals. For the reasons that follow, we affirm and remand with directions.

¶ 2 BACKGROUND

¶ 3 In 2014, O'Connor applied for a position as a probationary police officer with the CPD. Part of the application process required completing a personal history questionnaire, in which O'Connor admitted that he had been arrested for domestic battery against his mother in 2003, when he was 18, and against his roommate and ex-girlfriend in 2014.

¶ 4 O'Connor wrote that in 2003 he was living with his mother, a retired police officer. One morning, his mother woke him up and asked him to do chores, but he said no because he had to leave for work and told her he would do them when he returned. According to O'Connor, his mother yelled at him, and he repeated his refusal to do the chores and slammed the door in her face, whereupon his mother had him arrested for domestic violence. O'Connor's narrative with regard to the 2014 incident indicated that his roommate "became enraged" after he declined to take her to the grocery store and threatened to ruin his life by hitting herself and telling the police that he did it. O'Connor laughed and walked away, and his roommate then called the police saying O'Connor hit her, when in fact she hit herself with an object she found next to the parking lot of O'Connor's apartment. The police arrived and arrested O'Connor, disbelieving his claim that his roommate injured herself.

¶ 5 An administrative special order (Special Order) by the CPD provides that "[a]ny conduct demonstrating a propensity for violence may be grounds for disqualification." Such conduct includes battery and domestic violence. Based on this Special Order, and following a background investigation in which the CPD obtained police reports of the arrests, Investigator Stanley Golucki recommended that O'Connor be disqualified for the position of police officer. The CPD accepted the recommendation and advised the Department of Human Resources (DHR) to remove O'Connor from the list of eligible candidates.

¶ 6 On June 26, 2015, DHR notified O'Connor of his removal from the list but informed him that he could challenge the removal by requesting a hearing with the Board, which he did. At the hearing, which was held on December 16, 2015, Golucki, O'Connor, O'Connor's mother, Karen O'Connor, and O'Connor's girlfriend, Tanya Dovichi, all testified. Golucki testified to the contents of the arrest report of the 2003 incident, which was also made part of the record. The 2003 arrest report indicated that when police arrived at Karen's house, she told them that she and O'Connor engaged in a verbal dispute after she asked him for help around the house. O'Connor grabbed Karen by the neck and threw her to the kitchen floor, causing her injury. Karen declined treatment and to have photos taken of her neck, which the report described as "reddened." O'Connor "freely stated" that he "didn't grab [Karen] that hard." The officers took O'Connor into custody and advised Karen of the upcoming court date. O'Connor was charged with domestic battery, but the charge was ultimately stricken with leave to reinstate.

¶ 7 Karen testified that one morning when O'Connor was about 17 or 18 years old and living with her, she woke him up to ask for his help in moving something. When O'Connor did not get out of bed, Karen took his car keys and told him to walk to work. This prompted O'Connor to get out of bed and follow Karen to the kitchen, where he grabbed the keys out of Karen's hand. During the struggle with the keys, Karen slipped and fell. She denied that O'Connor threw her to the floor or that he choked her. Karen testified that she called the police to "teach [O'Connor] a lesson" not to put his hands on her. On cross-examination, Karen testified that she was surprised the police report indicated that O'Connor grabbed her by the neck and threw her to the floor. She was also surprised that the report described her as having a reddened neck.

¶ 8 In his testimony, O'Connor agreed with his mother's description of the 2003 incident. He clarified that when he went to the kitchen to retrieve the keys, his mother had her back to him and was holding the keys in her fist, but the lanyard attached to the key ring was free. O'Connor approached Karen from behind and grabbed the lanyard to pull the keys from her hands. According to O'Connor, Karen then bumped him and he started to fall backwards while still holding the lanyard, which caused Karen to fall down. O'Connor denied choking Karen, throwing her to the ground, or punching her. He testified that he learned a lesson, and the charges were dismissed.

¶ 9 The hearing officer's report found that it was more likely than not that O'Connor engaged in domestic battery against his mother in 2003, but that it was not more likely than not that O'Connor committed domestic battery in 2014. The hearing officer concluded that although "one instance of domestic battery was shown more likely than not, it occurred 13 years ago when [O'Connor] was a teen; once [sic ] instance alone does not show a propensity." Accordingly, the hearing officer recommended to the Board that the decision of the CPD be reversed and O'Connor's name be returned to the eligibility list.

¶ 10 In July 2016, the Board adopted the hearing officer's findings and recommendations in their entirety and reinstated O'Connor to the eligibility list.

¶ 11 Johnson petitioned the circuit court for a common law writ of certiorari. Following briefing and oral argument, the court reversed the decision of the Board holding that the hearing officer's conclusion that a single violent incident is insufficient to demonstrate a propensity for violence was inconsistent with the language of the Special Order. O'Connor timely appeals.

¶ 12 ANALYSIS

¶ 13 At issue in this case is the Board's decision to reinstate O'Connor to the eligibility list notwithstanding that he more likely than not committed domestic battery against his mother in 2003. The parties do not dispute that the circuit court properly reviewed the Board's decision pursuant to a common law writ of certiorari , given that the act conferring power on the Board does not expressly adopt the Administrative Review Law ( 735 ILCS 5/3-101 et seq. (West 2016) ) and does not provide for another form of review. See Applegate v. Department of Transportation , 335 Ill. App. 3d 1056, 1061, 270 Ill.Dec. 521, 783 N.E.2d 96 (2002). Our review of a writ of certiorari is "essentially the same" as our review of a petition filed under the Administrative Review Law. Outcom, Inc. v. Illinois Department of Transportation , 233 Ill. 2d 324, 337, 330 Ill.Dec. 784, 909 N.E.2d 806 (2009). In either case, we review the decision of the agency rather than the circuit court under our "traditional standards of review of administrative decisions." Porter v. Illinois State Board of Education , 2014 IL App (1st) 122891, ¶ 25, 379 Ill.Dec. 347, 6 N.E.3d 424.

¶ 14 The applicable standard of review of the agency decision depends on the question presented on appeal. Id. ¶ 26. If the question is one of fact, we apply a manifest weight of the evidence standard, while if the question is one of law, we review the decision de novo. Beggs v. Board of Education of Murphysboro Community Unit School District No. 186 , 2016 IL 120236, ¶ 50, 410 Ill.Dec. 902, 72 N.E.3d 288. And if the appeal presents a mixed question of law and fact, it is subject to review under the deferential "clearly erroneous" standard. Id. Here, O'Connor urges us to apply a clearly erroneous standard to what he contends was a mixed question of law and fact, while Johnson maintains that our review is de novo , arguing the issue on appeal is solely a question of law.

¶ 15 At the outset, we note that O'Connor did not advocate for application of the clearly erroneous standard in the circuit court and instead argued that the Board's decision was subject to review under a manifest weight of the evidence standard as it was "a question of fact and fact alone." As Johnson points out, a party waives any argument he fails to present in circuit court. Robinson v. Toyota Motor Credit Corp. , 201 Ill. 2d 403, 413, 266 Ill.Dec. 879, 775 N.E.2d 951 (2002). But because waiver is a limitation on the parties and not the court ( Committee for Educational Rights v. Edgar , 174 Ill. 2d 1, 11, 220 Ill.Dec. 166, 672 N.E.2d 1178 (1996) ), we nevertheless address the merits of the parties' dispute regarding the standard of review.

¶ 16 A mixed question of law and fact examines "the legal effect of a given set of facts" or, stated differently, whether uncontested facts satisfy the statutory standard. Comprehensive Community Solutions, Inc. v. Rockford School District No. 205 , 216 Ill. 2d 455, 472, 297 Ill.Dec. 221, 837 N.E.2d 1 (2005). O'Connor contends that the issue on appeal is whether the uncontested facts of his 2003 arrest implicate the Special Order so as to justify his disqualification. But that determination turns, in the first instance, on the interpretation of the Special Order, which is a question of law. See Burris v. Department of Children & Family Services , 2011 IL App (1st) 101364, ¶ 30, 351 Ill.Dec. 538, 951 N.E.2d 1202 (interpretation of agency regulation is a question of law). And as discussed supra ¶ 14, we review an agency's decision on questions of law de novo. See Beggs , 2016 IL 120236, ¶ 50, 410 Ill.Dec. 902, 72 N.E.3d 288. Importantly, however, an agency's interpretation of its own rules and regulations " 'enjoys a presumption of validity.' " (Internal quotation marks omitted.) Burris , 2011 IL App (1st) 101364, ¶ 30, 351 Ill.Dec. 538, 951 N.E.2d 1202 (quoting Walk v. Department of Children & Family Services , 399 Ill. App. 3d 1174, 1181, 339 Ill.Dec. 298, 926 N.E.2d 773 (2010) ).

¶ 17 We construe administrative regulations according to the same standards governing the construction of statutes.

People v. Bonutti , 212 Ill. 2d 182, 188, 288 Ill.Dec. 131, 817 N.E.2d 489 (2004). The fundamental rule of statutory construction is to ascertain and give effect to the legislature's intent. Hayashi v. Illinois Department of Financial & Professional Regulation , 2014 IL 116023, ¶ 16, 388 Ill.Dec. 878, 25 N.E.3d 570. The most reliable indicator of the legislative intent is the plain language of the statute, which must be given its ordinary meaning. Id. Where the language is clear and unambiguous, we may not depart from that language by reading into the statute exceptions, limitations, or conditions that the legislature did not express. Id. With these principles in mind, we turn to an examination of the Special Order.

¶ 18 The Special Order at issue is titled "Pre-Employment Disqualification Standards for Applicants for the Position of Police Officer," and the relevant subsection of the Special Order is titled "Disqualification Based on Criminal Conduct." Prior to listing the types of criminal conduct that disqualify a candidate, there is a disclaimer which reads: "The Standards are as comprehensive as possible, however as noted above, they cannot encompass every possible scenario. * * * Commission of any criminal or quasi-criminal act may result in disqualification from employment as a Police Officer if it is determined that the acts or omissions of the applicant make him or her unsuitable for the position of Police Officer." Here, O'Connor was disqualified based on subsection (B)(2)(c) of the Special Order, which reads:

"Conduct Indicating Violent Tendencies. Any conduct demonstrating a propensity for violence may be grounds for disqualification. Conduct demonstrating a propensity for violence includes but is not limited to, conduct which would constitute * * * battery * * * [and] domestic violence * * *. As noted above, an applicant who has engaged in any act falling within the scope of this section that constitutes a felony will be found unsuitable for employment. An applicant who has engaged in any act falling within the scope of this section that constitutes a misdemeanor within the last three (3) years (from the date of [personal history questionnaire] submission) or more than one (1) time in his or her life, will be found unsuitable for employment."

¶ 19 The plain language of subsection (B)(2)(c) of the Special Order defines both when disqualification is discretionary as well as when it is mandatory. The first sentence of the order provides that an applicant may be disqualified for any conduct demonstrating a propensity for violence. The word "may" indicates that the decision to disqualify a candidate for conduct demonstrating a propensity for violence is within the CPD's discretion. See People v. Garstecki , 234 Ill. 2d 430, 443, 334 Ill.Dec. 639, 917 N.E.2d 465 (2009) (statute's use of the word "may" indicates that a rule is permissive). This is particularly true when we consider that the remaining sentences of the order specify the circumstances under which an applicant will be "found unsuitable for employment," i.e. , if the act charged constitutes a felony or if it was a misdemeanor committed (i) within the past 3 years or (ii) more than once in an applicant's life. See Hoffman v. Altamore , 352 Ill. App. 3d 246, 256, 287 Ill.Dec. 340, 815 N.E.2d 984 (2004) ("[W]hen the legislature uses certain words in one instance and different words in another, different results are intended.").

¶ 20 Our conclusion finds additional support in the fact that the Special Order expressly states that the standards for disqualification based on criminal conduct "cannot encompass every scenario" and provides generally that disqualification may be based on the commission of "any criminal or quasi-criminal act" where the act makes the applicant "unsuitable for the position of police officer." This language suggests that the Special Order is intended to invest broad discretion in the CPD in disqualifying candidates. For these reasons, we conclude that the Board's interpretation was contrary to both the Special Order's plain language and well-settled principles of statutory construction.

¶ 21 When the Board concluded as a matter of law that one instance of violence constituting a misdemeanor committed more than three years before the candidate's submission of his personal history questionnaire is per se insufficient to warrant disqualification, it prohibited CPD from exercising its discretion. Certainly, there are situations where, in CPD's discretion, it could determine that a single misdemeanor act of domestic violence disqualifies a candidate from eligibility for employment. By way of example, if the battery was committed against a candidate's pregnant wife with other small children present, CPD could determine that those "aggravating" circumstances render the candidate ineligible no matter when the conduct occurred.

¶ 22 Having determined that the Board erred in its interpretation of the Special Order, we turn to the proper remedy. We cannot merely remand with directions for the Board to remove O'Connor's name from the eligibility list, as the CPD's initial decision to disqualify O'Connor was based on both the 2003 and 2014 incidents, and the hearing officer determined that it was not more likely than not that the incident in 2014 in fact occurred. Given that O'Connor's disqualification was based on two incidents of domestic battery, CPD was not given the opportunity to consider whether the circumstances of the first incident warranted disqualification. Therefore, the appropriate course is to allow the CPD to exercise its discretion to determine if the 2003 incident alone disqualifies O'Connor. In making this determination, the CPD may consider the fact that, while O'Connor disclosed the incident in his personal history questionnaire, his description of slamming the door in his mother's face, which he included in the questionnaire, was at odds with (i) the police report, which indicated that O'Connor grabbed his mother's neck and threw her to the floor and told police he "didn't grab her that hard," and (ii) his testimony at the hearing.

¶ 23 CONCLUSION

¶ 24 For the foregoing reasons, we affirm the decision of the circuit court and remand to the circuit court with directions to remand to the Board with the further direction to remand to the CPD to determine whether the single incident of conduct constituting domestic violence engaged in by O'Connor is grounds for discretionary disqualification.

¶ 25 Affirmed and remanded with directions.

Justices Hoffman and Pucinski concurred in the judgment and opinion.

      Justice Hoffman, Justice of the Sixth Division, was designated as the third panel member following recusals by other members of the Second Division.

      At the hearing, evidence was also introduced regarding the 2014 incident, but because the hearing officer found that it was not more likely than not that O'Connor committed domestic battery in 2014, and because that finding is not challenged on appeal, we find it unnecessary to recount that evidence here.


text:
    Patricia DOYLE and Brian Doyle, Plaintiffs-Appellants, v. The VILLAGE OF TINLEY PARK and Malone & Moloney, Inc., Defendants-Appellees.
    No. 1-17-0357
    Appellate Court of Illinois, First District, SECOND DIVISION.
    September 28, 2018
    Peter G. Hallam and Jonathan R. Koyn, of Flossmoor, for appellants.
    Michael R. Hartigan, of Hartigan & O'Connor P.C., of Chicago, for appellee Village of Tinley Park.
    James E. DeBruyn, of DeBruyn, Taylor & DeBruyn Ltd., of Orland Park, for other appellee.
   PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs Patricia and Brian Doyle purchased a home in a Tinley Park subdivision in 2004. Several years later, the Doyles began to experience drainage problems on their property which allegedly caused structural damage to the home. The Doyles brought a negligence suit against the developer of the subdivision, Malone & Moloney, Inc. (Malone), and the Village of Tinley Park. The Doyles alleged that Malone failed to install a properly working storm drain system, in breach of an annexation agreement entered into by Malone and the village in 1990. The Doyles further alleged that the damage was exacerbated by the village's delay in addressing the drainage problem.

¶ 2 The trial court dismissed the claims against Malone, finding that the Doyles lacked standing to sue under the annexation agreement either as successor owners of the property or as third-party beneficiaries. The trial court also granted summary judgment to the village, finding that it was immune from suit under section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) ( 745 ILCS 10/2-201 (West 2012) ), which immunizes public employees "serving in a position involving the determination of policy or the exercise of discretion" for their actions "in determining policy when acting in the exercise of such discretion." The Doyles now appeal. We agree with the trial court and affirm.

¶ 3 BACKGROUND

¶ 4 Malone is the developer of the Brookside Glen subdivision in Tinley Park. On January 11, 1990, Malone entered into an annexation agreement with the village regarding development of the subdivision. The agreement defines the property subject to the agreement as follows:

"The Subject Property is generally bounded on the north by 191st Street, on the east by Harlem Avenue, on the west generally by 88th Avenue but extending as far west as 92nd Avenue, and on the south by several different housing developments. The Subject Property contains approximately 828 acres and is contiguous with the Village of Tinley Park."

In relevant part, Malone agreed to design and construct storm sewers so that the subdivision's storm water runoff would be retained within a central detention system.

¶ 5 In 2004, the Doyles contracted with Malone to build a residence at 7606 Bayfield Drive in the Brookside Glen subdivision. The contract contained a limited warranty providing that Malone would fix any defects due to faulty construction brought to its attention within a year from the date of closing. The sale closed on May 30, 2004, and the Doyles have lived at the house since its completion.

¶ 6 Sometime in 2007 or 2008, the Doyles began to notice a problem with their sump pump: during times of rain or heavy snow, they could hear it ejecting water every few seconds, at a higher rate than their neighbors' pumps. Although the Doyles never had water in their basement, they were concerned as to why their pump was overactive. The pump stopped working in July 2008, and the Doyles replaced it, but the issue persisted.

¶ 7 Patricia Doyle first contacted the village about the problem in fall 2009, via a phone call to the Department of Public Works. She was told to have a plumber check the sump pump and sprinkler system for leaks. After two plumbers found no leaks, the Doyles filed a drainage complaint with the village on March 23, 2010. At this time, the Doyles had not yet observed any structural damage to their home, but there was serious erosion around the storm drain on the west side of the house: the surrounding dirt had caved in, and the ground in the area had dropped by several feet.

¶ 8 On April 9, 2010, a public works crew was dispatched to the Doyles' house. The crew placed stone, soil, and grass seed around the storm drain in the area of the cave-in but did not take further measures to remedy the cause of the sinkhole. The crew was sent at the direction of Mary Dobyns, a foreman for the village's Streets Department. Dobyns later explained that although she assigns crews to jobs, what they do "is their call once they get there." If a crew believes that a problem is beyond its expertise, it is supposed to call Dobyns. The April 9 crew did not call her.

¶ 9 Over the next several months, Patricia called the Department of Public Works several more times to inform them that their sump pump was "not shutting off during rain." By September 30, 2010, Patricia observed that the rim of the storm drain was collapsing, and all of the soil and rock added in April had fallen into the bottom of the drain. She called the Department of Public Works again, stating that the sinkhole on her property was dangerous and that additional work needed to be done. She was told that Dobyns was on medical leave, but a work order would be submitted for the property. On November 15, 2010, a second work crew came to the house. Patricia observed them placing more stone around the storm drain as they did in April.

¶ 10 Around December 2010, the Doyles first noticed structural damage to their home: the floor was slanted on the ground level and in the basement, and the support beams in the basement were, in Patricia's words, "heaving up."

¶ 11 On February 18, 2011, Patricia sent an e-mail regarding the damage to Kelly Borak, the superintendent of the Streets Department. In response, the village sent a third work crew on March 2, 2011. The crew performed a dye test by pouring dye into the storm drain. Within 20 to 30 minutes, the dye appeared in the Doyles' sump pump pit, evidencing that the storm pipe was leaking water. The next day, March 3, the work crew returned to the house and performed a camera test by sending a robot with a camera attachment into the storm drain. The camera footage confirmed that the pipe was compromised in several locations.

¶ 12 Later that day, Patricia e-mailed Borak to discuss these findings. Borak apologized to Patricia for how long it took to identify the cause of the drainage problem, saying, "[T]he list of drainage complaints is more than we can accommodate and we do not have the manpower to complete the drainage complaints in a timely manner." She assured Patricia that the village was working with the board of trustees to remedy the problem.

¶ 13 After discussing the matter with Dobyns, Borak determined that the village could not fix the damaged pipe on its own. Dobyns was in charge of soliciting bids from contractors. On March 31, 2011, a contractor hired by the village installed a sleeve into the storm pipe on the west side of the Doyles' property to repair the leak. After installing the sleeve, the contractor dumped excess water into the storm drain down the street and then left. Minutes later, Patricia heard her sump pump starting to operate. She called the Department of Public Works and told them that the problem was not fixed.

¶ 14 Further tests by the village on April 11 and 12 showed that the storm pipe under the street-a different pipe than was repaired on March 31-was also leaking. In an e-mail on April 25, Borak advised Patricia: "I have been collecting prices to repair the storm pipe in the street. After we have 3 comparable quotes then it must be presented to the Village Manager for approval. This will take some time."

¶ 15 On May 2, 2011, Patricia sent an e-mail to Mayor Zabrocki expressing frustration that the problem had not yet been fixed. In response, several village officials, including Trustee Thomas Staunton, came to the Doyles' house on July 1 to view the damage and discuss solutions. According to Patricia, Staunton said that the village would not repair the storm pipe under the street because it was "insignificant and not worth [the village's] while." He also told the Doyles, "Go ahead and sue us. Tinley Park has no money and we are protected by tort immunity."

¶ 16 Notwithstanding Staunton's words, the village hired a second contractor to repair the storm pipe under the street on July 27, 2011. This repair was more extensive than the March 31 repair in that it involved removal and replacement of the pipe. After this repair, the Doyles experienced no further problems with their sump pump.

¶ 17 The Doyles filed suit against Malone and the village on December 27, 2011, seeking compensation for the damage to their property. In count V of their third amended complaint, the Doyles alleged that Malone breached its 2004 contract with them by failing to build their residence "in a good workmanlike manner." In counts III and IV, the Doyles alleged that Malone breached its duty to install a sewage system that was adequate to properly drain water from properties in the subdivision, in violation of the 1990 annexation agreement between Malone and the village. The Doyles argued that they had standing to enforce the annexation agreement based upon the agreement's successor liability clause, which provided:

"This Agreement shall be binding upon and inure to the benefit of the parties hereto, successor owners of record of the Subject Property, assignees, lessees and upon any successor municipal authorities of said Village and successor municipalities * * *."

The Doyles claimed that they could enforce the agreement as successor owners of a residence in the Brookside Glen subdivision. Alternately, the Doyles argued that they were third-party beneficiaries of the agreement.

¶ 18 As for the village, the Doyles alleged that the damage to their home was exacerbated by the village's failure to deal with the drainage problem in a timely or appropriate manner. The Doyles filed their drainage complaint with the village on March 23, 2010. Although work crews visited the house on April 9 and November 15, they merely filled in the sinkhole without attempting to ascertain its cause. By April 12, 2011, the village was aware that the storm pipe under the street was compromised, but it did not fix the pipe until July 27.

¶ 19 The Doyles alleged that, due to defendants' negligence, large quantities of water accumulated beneath the base slab of their house, cracking the slab, pushing up the columns, and causing other structural damage. The water also created a dangerous sinkhole on the property. The Doyles alleged that their property was not salable in its damaged condition.

¶ 20 Malone moved to dismiss counts III and IV pursuant to section 2-619 of the Code of Civil Procedure ( 735 ILCS 5/2-619 (West 2012) ), arguing that the Doyles lacked standing to sue under the annexation agreement. The trial court granted Malone's motion on September 9, 2015, finding that, although the annexation agreement provided for successor liability, the Doyles were successors to Malone and not the village, so they could not sue Malone for its alleged breach of the agreement. The court also held there was no evidence that subsequent purchasers of homes, such as the Doyles, were intended third-party beneficiaries of the annexation agreement.

¶ 21 Malone then moved for summary judgment on count V, arguing that (i) the defective storm pipes that damaged the Doyles' house were beyond the scope of the 2004 contract between Malone and the Doyles; (ii) there was no evidence that Malone's construction of the house was faulty; and (iii) in any event, the Doyles did not notice any damage to their residence until well after the expiration of the one-year warranty. The trial court granted Malone's motion for summary judgment, finding that the Doyles' allegations of faulty construction were "conclusory in nature."

¶ 22 The village also moved for summary judgment, arguing that it was entitled to discretionary tort immunity under section 2-201 of the Tort Immunity Act ( 745 ILCS 10/2-201 (West 2012) ) because the means and methods by which its employees address drainage complaints from residents involve the exercise of discretion. The trial court initially denied the village's motion, finding that whether the village's acts were ministerial or discretionary was a question of fact. The village moved for reconsideration, and on September 14, 2016, the trial court granted the motion and entered summary judgment for the village "for reasons stated on the record."

¶ 23 The Doyles now appeal (i) the trial court's dismissal of counts III and IV against Malone and (ii) the court's grant of summary judgment for the village.

¶ 24 ANALYSIS

¶ 25 Standing to Sue to Enforce the Annexation Agreement

¶ 26 As discussed, the Doyles' claims against Malone in this appeal are premised on Malone's alleged breach of the annexation agreement that Malone and the village executed in 1990. The Doyles argue that they had standing to bring such an action, both as successor owners of the property and as intended third-party beneficiaries of the contract. We consider these claims in turn, accepting as true all well-pleaded facts in the complaint and construing the pleadings in the light most favorable to the Doyles, as is appropriate in reviewing a section 2-619 dismissal. Sandholm v. Kuecker , 2012 IL 111443, ¶ 55, 356 Ill.Dec. 733, 962 N.E.2d 418.

¶ 27 Initially, we observe that the Doyles do not appeal the trial court's grant of summary judgment on count V, regarding their 2004 contract with Malone. Nor would any such appeal be meritorious. As the trial court found, there was no evidence that Malone's construction of the Doyles' house was faulty. Rather, the evidence showed that the Doyles' house was damaged by faulty storm drains, which were outside the scope of the 2004 contract. Thus, the Doyles' claims depend on their ability to enforce Malone's obligations under the annexation agreement.

¶ 28 By definition, an annexation agreement is a contract between a municipality and an owner of land in unincorporated territory. 65 ILCS 5/11-15.1-1 (West 2012). The contract annexes the land to the municipality, thereby subjecting it to the municipality's ordinances, control, and jurisdiction. Id. § 11-15.1-2. The Illinois Municipal Code provides that any annexation agreement "shall be binding upon the successor owners of record of the land which is the subject of the agreement and upon successor municipal authorities of the municipality and successor municipalities. Any party to such agreement may by civil action * * * enforce and compel performance of the agreement." Id. § 11-15.1-4. Additionally, the agreement itself provides for successor liability in section 16, "Binding Effect and Term and Covenants Running with the Land." That section provides, in relevant part: "This Agreement shall be binding upon and inure to the benefit of the parties hereto, successor owners of record of the Subject Property, assignees, lessees and upon any successor municipal authorities of said Village and successor municipalities."

¶ 29 The Doyles argue that they, as purchasers of an individual lot within the Brookside Glen subdivision, are "successor owners of record" of the subdivision, under both the 1990 annexation agreement and section 11-15.1-4 of the Illinois Municipal Code ( 65 ILCS 5/11-15.1-4 (West 2012) ). This assertion underlies both their claim to successor liability and their third-party beneficiary claim.

¶ 30 We disagree with this fundamental assertion. In interpreting the annexation agreement, our primary goal is to effectuate the parties' intent by interpreting the contract as a whole. Joyce v. DLA Piper Rudnick Gray Cary LLP , 382 Ill. App. 3d 632, 636-37, 321 Ill.Dec. 138, 888 N.E.2d 657 (2008). Moreover, we will construe the contract reasonably to avoid absurd results. Suburban Auto Rebuilders, Inc. v. Associated Tile Dealers Warehouse, Inc. , 388 Ill. App. 3d 81, 92, 327 Ill.Dec. 792, 902 N.E.2d 1178 (2009). Initially, we do not find that the wording of the annexation agreement supports the Doyles' construction. The agreement defines the "Subject Property" as an 828-acre parcel of land contiguous with the village-i.e. , the entire subdivision. If the drafters of the agreement intended to confer successor status upon each and every purchaser of a lot within the subdivision (as opposed to, say, a developer who purchased the entire subdivision property from Malone), the agreement would have said "successor owners of record of the Subject Property or any portion thereof. "

¶ 31 Likewise, the statute refers to "successor owners of record of the land which is the subject of the agreement" ( 65 ILCS 5/11-15.1-4 (West 2012) ), but makes no reference to those who purchase only a small portion of that land. The Doyles do not cite any cases where homeowners who purchase a single lot from a larger annexed territory are considered "successor owners of record" under the statute, nor does our research disclose any.

¶ 32 Moreover, if we adopted the Doyles' interpretation of the annexation agreement and the statute, then each and every homeowner in the subdivision would succeed to Malone's interest in the property. Humphrey Property Group, L.L.C. v. Village of Frankfort , 392 Ill. App. 3d 611, 614 (2009) (with respect to an annexation agreement, a successive purchaser of land stands in the place of the original landowner who made the contract with the municipality). As successors, the homeowners would stand in Malone's shoes and be bound to Malone's obligations-and, as a result, the village could sue the Doyles, or any other homeowners in the subdivision, for failing to properly design and construct storm sewers in accordance with the annexation agreement. See Village of Orland Park v. First Federal Savings & Loan Ass'n of Chicago , 135 Ill. App. 3d 520, 526, 90 Ill.Dec. 146, 481 N.E.2d 946 (1985) (because annexation agreement was binding upon successor owner of property, village could sue successor owner to enforce its provisions). We decline to find that either the parties to the contract or the legislature intended such an absurd result. Accordingly, we find that the Doyles lack standing to bring an action against Malone as successor owners of the property.

¶ 33 Because the Doyles cannot be considered "successor owners of record" of the subject property, their third-party beneficiary argument fails as well. Under Illinois law, not every third party who benefits from a contract can sue for its breach.

Carlson v. Rehabilitation Institute of Chicago , 2016 IL App (1st) 143853, ¶ 14, 401 Ill.Dec. 768, 50 N.E.3d 1250. Third parties have rights under a contract only if they are intended beneficiaries; that is, the contracting parties must have intended to directly benefit the third parties by the performance of the contract. Id. ; F.H. Paschen/S.N. Nielsen, Inc. v. Burnham Station, L.L.C. , 372 Ill. App. 3d 89, 96, 309 Ill.Dec. 865, 865 N.E.2d 228 (2007). By contrast, an incidental beneficiary has no rights under a contract and lacks standing to sue to enforce its terms. Carlson , 2016 IL App (1st) 143853, ¶¶ 14-15, 401 Ill.Dec. 768, 50 N.E.3d 1250. In determining whether a third-party beneficiary is intended or incidental, courts consider the language of the contract and the circumstances surrounding its execution. Id. ¶ 14. Because parties typically enter into contracts to benefit themselves rather than third parties, there is a presumption against intended beneficiary status that "can only be overcome by an implication so strong as to be practically an express declaration." Estate of Willis v. Kiferbaum Construction Corp. , 357 Ill. App. 3d 1002, 1008, 294 Ill.Dec. 224, 830 N.E.2d 636 (2005) ; see also Carlson , 2016 IL App (1st) 143853, ¶ 16, 401 Ill.Dec. 768, 50 N.E.3d 1250.

¶ 34 No such implication is present in the annexation agreement. As discussed, individual homeowners such as the Doyles are not "successor owners of record of the Subject Property" within the meaning of the annexation agreement. Thus, there is no expressed intent to benefit such individual homeowners. Although there is no question that the parties were aware that the storm drainage system would benefit homeowners, this is insufficient under Illinois law to afford homeowners intended third-party beneficiary status. See Altevogt v. Brinkoetter , 85 Ill. 2d 44, 56, 51 Ill.Dec. 674, 421 N.E.2d 182 (1981) (builder's knowledge that a third party would occupy the house did not establish that occupants were intended beneficiaries); 155 Harbor Drive Condominium Ass'n v. Harbor Point Inc. , 209 Ill. App. 3d 631, 647, 154 Ill.Dec. 365, 568 N.E.2d 365 (1991) (individual unit owners were not intended beneficiaries of construction contracts even though "[t]here is no question that the parties * * * were aware that the building was being built for subsequent purchasers").

¶ 35 Accordingly, we affirm the trial court's dismissal of counts III and IV of the Doyles' complaint.

¶ 36 Tort Immunity

¶ 37 The Doyles next argue that the trial court erred in granting summary judgment to the village on the basis of discretionary tort immunity. We review the grant of summary judgment de novo ( Williams v. Manchester , 228 Ill. 2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1 (2008) ), keeping in mind that summary judgment is appropriate only where "there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2016). In order to prevail, the nonmoving parties must present some evidence that would arguably entitle them to recover at trial. Keating v. 68th & Paxton, L.L.C. , 401 Ill. App. 3d 456, 472, 344 Ill.Dec. 293, 936 N.E.2d 1050 (2010).

¶ 38 Section 2-201 of the Tort Immunity Act provides: "Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused." 745 ILCS 10/2-201 (West 2012). For an employee to enjoy immunity under this section, the employee's allegedly tortious action must result from both "the determination of policy" and "the exercise of discretion." Id. ; see Harinek v. 161 North Clark Street Ltd. Partnership , 181 Ill. 2d 335, 341, 230 Ill.Dec. 11, 692 N.E.2d 1177 (1998) ; Albers v. Breen , 346 Ill. App. 3d 799, 808, 282 Ill.Dec. 370, 806 N.E.2d 667 (2004). The Doyles argue that the village's failure to remedy the sinkhole in a timely manner did not meet either of these criteria.

¶ 39 For purposes of section 2-201, policy determinations are decisions that require a governmental employee " 'to balance competing interests and to make a judgment call as to what solution will best serve each of those interests.' " Harinek , 181 Ill. 2d at 342, 230 Ill.Dec. 11, 692 N.E.2d 1177 (quoting West v. Kirkham , 147 Ill. 2d 1, 11, 167 Ill.Dec. 974, 588 N.E.2d 1104 (1992) ). Discretionary acts "involve the exercise of personal deliberation and judgment in deciding whether to perform a particular act, or how and in what manner that act should be performed." Wrobel v. City of Chicago , 318 Ill. App. 3d 390, 395, 252 Ill.Dec. 151, 742 N.E.2d 401 (2000). By contrast, ministerial acts (which do not enjoy immunity) are performed in a prescribed manner without reference to the official's discretion. Id. at 396, 252 Ill.Dec. 151, 742 N.E.2d 401 ; see also In re Chicago Flood Litigation , 176 Ill. 2d 179, 194, 223 Ill.Dec. 532, 680 N.E.2d 265 (1997) (ministerial acts are "absolute, certain and imperative, involving merely the execution of a set task" (internal quotation marks omitted) ).

¶ 40 The Doyles concede that the village's initial decision to repair the sinkhole, made in response to the Doyles' drainage complaint on March 23, 2010, was both an exercise of discretion and a determination of policy. But they argue that all of the village's actions thereafter were "merely the execution of a set task" (internal quotation marks omitted) ( Chicago Flood Litigation , 176 Ill. 2d at 194, 223 Ill.Dec. 532, 680 N.E.2d 265 ) and not entitled to immunity. We disagree.

¶ 41 The record shows that the village sent work crews to the Doyles' house on April 9, 2010, and on November 15, 2010. On both of those occasions, the crew placed stone and soil around the storm drain but, according to Patricia, did not test the integrity of the storm pipes by conducting a dye test or a camera test. These remedial measures were discretionary in nature: Dobyns explained that the workers' actions to address the problem were "their call once they get there." Here, the workers decided that it was sufficient to fill in the sinkhole. The Doyles argue that they should have performed tests to determine the cause of the problem. But by criticizing the workers' judgment-effectively arguing that they made the "wrong call"-the Doyles inadvertently highlight the discretionary nature of the remedial actions.

¶ 42 In this regard, this case is analogous to Wrobel , 318 Ill. App. 3d 390, 252 Ill.Dec. 151, 742 N.E.2d 401, in which the court held that city workers' conduct in repairing potholes involved the exercise of discretion. A driver struck a pothole, lost control of his vehicle, and veered into traffic, injuring plaintiffs. Plaintiffs sued the city for negligent maintenance of the road. It was undisputed that four days before the accident, city workers had repaired potholes on that block. Wrobel held that the city was immune from suit. The court explained that workers repairing potholes "enjoy discretion in determining how much asphalt and moisture should be actually extracted [from each pothole] and whether that amount is indeed adequate to ensure a durable patch." Id. at 395, 252 Ill.Dec. 151, 742 N.E.2d 401. Likewise, the record in this case shows that the work crews sent to the Doyles' house had discretion in determining how best to deal with the drainage problem.

¶ 43 In response to the Doyles' continued concerns, the village sent a third work crew to their house on March 2 and 3, 2011, and testing determined that the storm pipe on their property was leaking in several locations. The record shows that fixing the pipe was not "merely the execution of a set task" (internal quotation marks omitted) ( Chicago Flood Litigation , 176 Ill. 2d at 194, 223 Ill.Dec. 532, 680 N.E.2d 265 ), but required "the exercise of personal deliberation and judgment" ( Wrobel , 318 Ill. App. 3d at 395, 252 Ill.Dec. 151, 742 N.E.2d 401 ) by village officials. Borak discussed the problem with Dobyns and determined that the village did not have the resources to fix the pipe on its own. Dobyns then began the process of soliciting bids from outside contractors. Eventually a contractor was hired to fix the pipe on the Doyles' property-but it was discovered that the pipe under the street was also leaking, necessitating a new round of decisionmaking and bidding from contractors. Borak stated as much in her April 25, 2011, e-mail to Patricia: "I have been collecting prices to repair the storm pipe in the street. After we have 3 comparable quotes then it must be presented to the Village Manager for approval. This will take some time."

¶ 44 We find that the village employed discretion at every step of the repair process, from the first work crew that visited the Doyles' house and had to decide what to do about the sinkhole, to the village manager who decided to approve the street pipe repair.

¶ 45 Moreover, the record demonstrates that village officials were engaged in ongoing policy determinations regarding the allocation of village funds and resources. In an e-mail to Patricia, Borak stated, "[T]he list of drainage complaints is more than we can accommodate and we do not have the manpower to complete the drainage complaints in a timely manner." In a similar vein, Staunton, one of the village's trustees, told the Doyles that the village "has no money" and opined that fixing the leaking street pipe was "not worth [the village's] while." It is well established that deciding how best to spend limited resources is a policy determination.

¶ 46 For instance, in Nichols v. City of Chicago Heights , 2015 IL App (1st) 122994, 391 Ill.Dec. 849, 31 N.E.3d 824, plaintiffs' homes were damaged in flooding during a two-day rainstorm. They sued the city, alleging operational negligence of the storm sewer system. Nichols held that immunity applied to the city's decisions regarding the maintenance and improvement of its sewer system. Id. ¶ 33. Evidence showed that the city had an ongoing sewer rehabilitation program, including dye testing of " 'high priority' " locations and discussion of cost-effective solutions to stay within budgetary constraints. Id. ¶¶ 34-38. The court concluded that "the mayor and the City were balancing competing interests and making continued and ongoing judgment calls as to what set of action would best serve those competing interests"-i.e. , they were both exercising discretion and determining policy. Id. ¶ 39. The court further stated:

"We understand plaintiffs' frustration that their homes were flooded with waste and we, like the trial court below, recognize that this flooding may have been avoided had the City's sewers been better maintained. However, a municipality must function while balancing many interests, including a limited budget. Here, the City had a plan and was moving forward on that plan, balancing, as a municipality must, many interests. Even if its conduct were negligent, we would still find that it was immune from suit under section 2-201." Id. ¶ 41.

Likewise, we are not unsympathetic to the Doyles' frustration regarding the length of time it took to fix the drainage problem and the resultant damage to their home. But village officials exercised their judgment in utilizing the village's limited manpower and budget, and, as a result, their actions are immune from liability.

¶ 47 The Doyles nevertheless argue that the present case is analogous to Gutstein v. City of Evanston , 402 Ill. App. 3d 610, 341 Ill.Dec. 26, 929 N.E.2d 680 (2010), in which the city's failure to perform scheduled repairs was held to be ministerial rather than discretionary. Gutstein tripped and fell in an unpaved alley abutting her property. Id. at 612, 341 Ill.Dec. 26, 929 N.E.2d 680. She sued the city for negligent maintenance of the alley. The city's policy was to annually regrade each of its unpaved alleys, but there was no evidence the city did any work in the alley before Gutstein's fall. Id. at 612, 626, 341 Ill.Dec. 26, 929 N.E.2d 680. Under these facts, Gutstein held that discretionary tort immunity did not apply. The court explained that the city's decision to implement a program of repairs (the annual regrading of alleys) involved the exercise of discretion, but once the program was implemented, carrying out that program was a ministerial act, in that it was " 'absolute, certain and imperative, involving merely the execution of a set task.' " Id. at 625, 341 Ill.Dec. 26, 929 N.E.2d 680 (quoting Chicago Flood Litigation , 176 Ill. 2d at 194, 223 Ill.Dec. 532, 680 N.E.2d 265 ). The court also distinguished Wrobel , since there was no evidence that the regrading process required any "complex, location-specific determinations," unlike the pothole repair process in Wrobel . Id. at 627, 341 Ill.Dec. 26, 929 N.E.2d 680.

¶ 48 Gutstein is readily distinguishable. Unlike the city in Gutstein , which failed to perform any repairs on the alley in question, the village engaged in extensive repair efforts that involved many complex determinations and did eventually solve the Doyles' drainage problem. The Doyles criticize the manner in which these repair efforts were conducted, but, as discussed, deciding how to perform the repairs involved both the exercise of discretion and the determination of policy, and the village is therefore immune from suit under section 2-201.

¶ 49 CONCLUSION

¶ 50 Because the Doyles lacked standing to enforce the annexation agreement between Malone and the village, we affirm the trial court's dismissal of counts III and IV against Malone. We also affirm the trial court's grant of summary judgment for the village on grounds of discretionary tort immunity.

¶ 51 Affirmed.

Justices Pucinski and Hyman concurred in the judgment and opinion.

      Although the complaint in this case listed the company as "Malone & Maloney, Inc.," the company's entry of appearance in this case corrects that spelling to "Malone & Moloney, Inc."

      The Doyles also raised various other claims against Malone that are not relevant to this appeal.

      We additionally observe that even if the Doyles could be considered successor owners of the property, they would succeed to Malone's interest in the annexation agreement, not to the village's. See Humphrey Property Group , 392 Ill. App. 3d at 614. As such, the Doyles could not sue Malone (in whose shoes they would be standing) for breach of the annexation agreement.