text:
    Kenrick ROBERTS, Plaintiff-Appellant, v. BOARD OF TRUSTEES COMMUNITY COLLEGE DISTRICT NO. 508 d/b/a City Colleges of Chicago, Defendant-Appellee.
    No. 1-17-0067
    Appellate Court of Illinois, First District, FIRST DIVISION.
    April 16, 2018
    Holman & Stefanowicz, LLC, of Chicago (Brian R. Holman, Dennis H. Stefanowicz Jr., and Tara Beth Wenz, of counsel), for appellant.
    Jackson Lewis P.C., of Chicago (James P. Daley, David M. Novak, and James D. Thomas, of counsel), for appellee.
   JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff-appellant, Kenrick Roberts, filed this action against defendant-appellee, Board of Trustees Community College District No. 508 d/b/a City Colleges of Chicago, alleging causes of action for common law retaliatory discharge, violations of the Whistleblower Act ( 740 ILCS 174/20 (West 2016) ), and wrongful termination. After engaging in motion practice, the circuit court dismissed the retaliatory discharge claim and whistleblower claim with prejudice.

¶ 2 On appeal, plaintiff contends the circuit court erred in dismissing those two counts. He contends his claim for retaliatory discharge successfully alleges a violation of Illinois public policy. He also claims the second amended complaint properly alleges he refused to participate in defendant's unlawful conduct so as to fall within the protection of the Whistleblower Act.

¶ 3 For the reasons stated more fully below, we reverse the dismissal of plaintiff's retaliatory discharge claim but affirm the dismissal of his claim brought under the Whistleblower Act.

¶ 4 JURISDICTION

¶ 5 On October 25, 2016, the circuit court dismissed with prejudice count I (retaliatory discharge) and count II (Whistleblower Act) of plaintiff's second amended complaint. According to the record, plaintiff made an oral motion for Illinois Supreme Court Rule 304(a) language, which the circuit court denied. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). On November 22, 2016, the plaintiff filed a motion to reconsider the denial of Rule 304(a) language. On December 15, 2016, the circuit court granted the motion to reconsider. In granting the motion, the circuit court made an express finding under Rule 304(a) that there was no just reason to delay the appeal of the October 25 dismissal of counts I and II. Plaintiff filed his notice of appeal on January 5, 2017. Accordingly, this court has jurisdiction over this matter pursuant to article VI, section 6 of the Illinois Constitution and Illinois Supreme Court Rules 301 and 304(a). Ill. Const. 1970, art. VI, § 6 ; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 304(a) (eff. Mar. 8, 2016).

¶ 6 BACKGROUND

¶ 7 In March 2013, plaintiff began working for the defendant as the clinical coordinator of the physician assistant program at Malcolm X College (Malcolm X). In June 2014, plaintiff was promoted to the position of program director of the physician assistant program. In November 2014, plaintiff was promoted to the position of director of medical programs.

¶ 8 As the director of medical programs, plaintiff reported directly to and worked closely with Dr. Micah Young, the dean of health sciences and career programs at Malcolm X and Dr. Mario De La Haye, the associate dean of health sciences and career programs at Malcolm X. As part of his job duties and responsibilities as the director of medical programs, plaintiff was responsible for vetting potential instructors for teaching various courses and curriculum. This responsibility included ensuring instructors assigned to teach various courses, including but not limited to HeaPro 101, met the appropriate accreditation standards and had the correct qualifications to teach the assigned course and curriculum.

¶ 9 HeaPro 101 includes the instruction of phlebotomy and electrocardiograms (EKG). The National Accrediting Agency for Clinical Laboratory Sciences (NAACLS) states that in order for a course or curriculum to be accredited and approved for phlebotomy, the class must have qualified faculty. Under NAACLS, in order to be qualified to teach phlebotomy within the phlebotomy or health care basic certificate program, the faculty needs to be a certified professional in that field, must demonstrate knowledge and proficiency in that field, and must demonstrate the ability to teach effectively at the appropriate level. A professor can be certified in phlebotomy by the National Phlebotomy Association or through the American Society of Clinical Pathologists.

¶ 10 On or about January 15, 2015, plaintiff alleges that he became aware of complaints that the instructor assigned to teach HeaPro 101 was unqualified to teach the course and curriculum. As a result of the complaints, plaintiff met with the HeaPro 101 instructor and questioned her qualifications to teach HeaPro 101. The instructor informed plaintiff that she had never taught phlebotomy before, she was unfamiliar with the requirements and certifications necessary to become a phlebotomist, phlebotomy was not her area of expertise, and she did not have any certifications in phlebotomy. After meeting with the instructor, plaintiff found her unqualified to teach HeaPro 101.

¶ 11 On or about January 15, 2015, plaintiff sent an e-mail to Dr. Young and Dr. De La Haye complaining about the unqualified instructor. The e-mail stated:

"In compliance with the City Colleges of Chicago policy and the College of Health Science credentialing standards and requirements it is my responsibility as Program Director of HeaPro 101 to review, evaluate and approve the recommendation of each faculty member that is approved to teach in the program which I am director. Taking into consideration I had no input into the department decision to appoint a nurse to teach HeaPro 101 without my review of the credentials and necessary certifications and licenses put our programs and students at risk. Please note this is a breach of the standards that were developed to ensure that the students obtain the best outcomes moving forward with their education in the medical field. Please note I am very concerned about the direction in which we are traveling and wish to address this matter."

After receiving the e-mail from plaintiff, Dr. Young sent an e-mail to the president and provost of Malcolm X College stating his concerns about the unqualified instructor and asked how it should be addressed.

¶ 12 Following his January 15, 2015 e-mail, plaintiff made verbal complaints to Dr. Anthony Munroe, president of Malcolm X College, regarding the appointment of an unqualified professor to teach HeaPro 101. He informed Dr. Munroe that he had been intentionally excluded from the hiring process of the unqualified instructor and he refused to support the assignment. On February 4, 2015, without prior notice, Dr. Young was unexpectedly terminated from his position with defendant. On February 5, 2015, Dr. De La Haye was unexpectedly placed on paid administrative leave. Dr. De La Haye remained on leave until his termination on April 20, 2015.

¶ 13 On February 25, 2015, plaintiff sent an e-mail to the president, vice president, and associate provost again complaining about the unqualified instructor assigned to teach HeaPro 101. In addition to what plaintiff had previously learned from his interview with the instructor, plaintiff had learned that the instructor had abandoned the class. Plaintiff found out another individual was assigned to complete instruction in the course, but this individual was not properly certified to teach EKG.

¶ 14 Upon receipt of plaintiff's February 25, 2015, e-mail, Dr. Christopher Robinson-Easley, vice president of Malcolm X College, requested that plaintiff meet with her regarding the complaints in the e-mail. After receiving the request from Dr. Robinson-Easley, plaintiff sent an e-mail to Aaron Allen, executive director of labor and employee relations. Plaintiff told Allen that he felt uncomfortable about Dr. Robinson-Easley's request considering his complaints regarding the instructor. Dr. Robinson-Easley was the individual who selected and assigned the unqualified instructor to HeaPro 101. At the meeting, plaintiff found Dr. Robinson-Easley upset about his complaints and unwilling to address his concerns.

¶ 15 Plaintiff continued to complain and question the appointment of the unqualified instructor and the college's failure to address the situation to Dr. Munroe. Following the meeting with Dr. Robinson-Easley, plaintiff was excluded from important meetings, decisions, and discussions regarding programs that were under his responsibilities as director of medical programs.

¶ 16 On June 15, 2015, Roy Walker, the associate dean of health sciences and career programs at Malcolm X College, informed plaintiff that Dr. Robinson-Easley "has an axe to grind with you" because of the HeaPro 101 complaints. On June 28, 2015, Dr. Munroe instructed plaintiff to file an equal employment opportunity complaint against Dr. Robinson-Easley for retaliation in connection with plaintiff's complaints. On August 7, 2015, plaintiff was advised that he was terminated from his position as director of medical programs at Malcolm X College.

¶ 17 Plaintiff filed his original complaint on September 15, 2015. Plaintiff brought three causes of action: retaliatory discharge, violation of the Whistleblower Act, and wrongful termination. Defendant brought a motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code). 735 ILCS 5/2-619.1 (West 2016). The circuit court granted the motion with respect to the retaliatory discharge claim and whistleblower claim but granted plaintiff an opportunity to replead. On February 24, 2016, plaintiff filed his amended complaint containing the same three counts. Defendant filed another section 2-619.1 motion to dismiss, and the circuit court dismissed the same two counts, again with leave to replead.

¶ 18 A second amended complaint alleging the same causes of action as the prior complaints was filed on June 27, 2016. This time defendant moved to dismiss the retaliatory discharge claim and whistleblower claim pursuant to section 2-615(a) of the Code. Id. § 2-615(a). On October 25, 2016, the circuit court granted the motion with prejudice. At the time, plaintiff made an oral motion for the inclusion of Rule 304(a) language, but this request was denied. Plaintiff moved to reconsider the denial of Rule 304(a) language, and on December 15, 2016, the circuit court granted plaintiff's motion to reconsider. The circuit court then entered an order finding no just reason to delay the appeal. Plaintiff timely filed a notice of appeal. The wrongful termination claim remains pending before the circuit court and is not before us.

¶ 19 ANALYSIS

¶ 20 On appeal, plaintiff argues that the circuit court erred in dismissing his common law retaliatory discharge claim and his whistleblower claim. Both counts are before us after being dismissed pursuant to section 2-615(a) of the Code. Id.

¶ 21 A motion brought pursuant to section 2-615 tests the legal sufficiency of the complaint based on defects apparent on its face. Doe-3 v. McLean County Unit District No. 5 Board of Directors , 2012 IL 112479, ¶ 15, 362 Ill.Dec. 484, 973 N.E.2d 880. A section 2-615 motion presents the question of whether the facts alleged in the complaint, viewed in a light most favorable to the plaintiff and taking all well-pleaded facts and all reasonable inferences that may be drawn from those facts as true, are sufficient to state a cause of action upon which relief can be granted. Id. ¶ 16. "[A] cause of action should not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recovery." Marshall v. Burger King Corp. , 222 Ill. 2d 422, 429, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006). In ruling on a section 2-615 motion, the court considers only (1) those facts apparent on the face of the pleadings, (2) matters subject to judicial notice, and (3) judicial admissions in the record. Gillen v. State Farm Mutual Automobile Insurance Co. , 215 Ill. 2d 381, 385, 294 Ill.Dec. 163, 830 N.E.2d 575 (2005). We review the grant of a section 2-615 motion de novo . Doe-3 , 2012 IL 112479, ¶ 15, 362 Ill.Dec. 484, 973 N.E.2d 880. Under this standard of review, we are not bound by the circuit court's reasoning or decision. See State Automobile Mutual Insurance Co. v. Habitat Construction Co. , 377 Ill. App. 3d 281, 291, 314 Ill.Dec. 872, 875 N.E.2d 1159 (2007).

¶ 22 Illinois follows the at-will employment rule, which means "a noncontracted employee is one who serves at the employer's will, and the employer may discharge such an employee for any reason or no reason." Zimmerman v. Buchheit of Sparta, Inc. , 164 Ill. 2d 29, 32, 206 Ill.Dec. 625, 645 N.E.2d 877 (1994). Illinois recognizes an exception to the general at-will employment rule when the discharge violates a clear mandate of public policy. Turner v. Memorial Medical Center , 233 Ill. 2d 494, 501, 331 Ill.Dec. 548, 911 N.E.2d 369 (2009). This exception to the general rule acknowledges that under the common law "parties to a contract may not incorporate in it rights and obligations which are clearly injurious to the public." Palmateer v. International Harvester Co. , 85 Ill. 2d 124, 129, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981). This exception represents the common law cause of action known as retaliatory discharge. Fellhauer v. City of Geneva , 142 Ill. 2d 495, 505, 154 Ill.Dec. 649, 568 N.E.2d 870 (1991).

¶ 23 In order to state a cause of action for retaliatory discharge, an employee must allege (1) the employer discharged the employee, (2) in retaliation for the employee's activities, and (3) the discharge violates a clear mandate of public policy. Id. The Illinois Supreme Court has continuously cautioned the tort of retaliatory discharge is narrow in scope and the at-will employment rule remains the law of Illinois. Turner , 233 Ill. 2d at 501, 331 Ill.Dec. 548, 911 N.E.2d 369. This tort seeks to achieve "a proper balance * * * among the employer's interest in operating a business efficiently and profitably, the employee's interest in earning a livelihood, and society's interest in seeing its public policies carried out." Palmateer , 85 Ill. 2d at 129, 52 Ill.Dec. 13, 421 N.E.2d 876.

¶ 24 Before this court, the only issue concerning plaintiff's retaliatory discharge claim is whether it states a violation of a clear mandate of Illinois public policy. The existence and ascertainment of public policy is a question for the court to decide. Turner , 233 Ill. 2d at 501-02, 331 Ill.Dec. 548, 911 N.E.2d 369. In Palmateer , the Illinois Supreme Court discussed the meaning of "clearly mandated public policy":

"There is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State's constitution and statutes and, when they are silent, in its judicial decisions. [Citation.] Although there is no precise line of demarcation dividing matters that are the subject of public policies from matters purely personal, a survey of cases in other States involving retaliatory discharges shows that a matter must strike at the heart of a citizen's social rights, duties, and responsibilities before the tort will be allowed." Palmateer , 85 Ill. 2d at 130, 52 Ill.Dec. 13, 421 N.E.2d 876.

Our court recognizes the tort is meant to prevent employers from "effectively frustrat[ing] a significant public policy by using its power of dismissal in a coercive manner." Fellhauer , 142 Ill. 2d at 508, 154 Ill.Dec. 649, 568 N.E.2d 870. The purpose of the tort is "to deter employer conduct inconsistent with [the public] policy." Id. Because the tort is concerned with the protection and enforcement of public policy, a complaining party "must only show that the conduct complained of contravenes a clearly mandated public policy, not necessarily a law." Stebbings v. University of Chicago , 312 Ill. App. 3d 360, 369, 244 Ill.Dec. 825, 726 N.E.2d 1136 (2000).

¶ 25 In the case before us, plaintiff's position at Malcolm X required him to ensure instructors in classes like HeaPro 101 were qualified to teach the course and curriculum. Plaintiff alleges that despite his position and responsibilities, Dr. Robinson-Easley appointed unqualified individuals to teach HeaPro 101 without consulting with plaintiff. After a meeting with the phlebotomy instructor of HeaPro 101, plaintiff learned she had never taught phlebotomy, was unfamiliar with the requirements and certifications necessary to become a phlebotomist, phlebotomy was not her area of expertise, and she did not have any certifications in phlebotomy. Plaintiff concluded the instructor was unqualified to teach HeaPro 101.

¶ 26 In an e-mail to several higher ranking school officials, including Dr. Robinson-Easley, plaintiff expressed concern the appointments jeopardized the enrolled students' ability to obtain the educational benefits HeaPro 101 was designed to provide. When this instructor abandoned HeaPro 101, another unqualified instructor was put in place. This new instructor was also unqualified and not properly certified in EKG.

¶ 27 When plaintiff complained about the assignment of the unqualified instructors, he was terminated. Plaintiff then brought this suit containing a claim for retaliatory discharge. Plaintiff alleges his discharge for complaining about the unqualified instructors violated a specific public policy: "the right to obtain the benefits of a post-secondary education through federal and state funded programs."

¶ 28 In support of his argument, plaintiff cites to Title IV of the Higher Education Act of 1965 ( 20 U.S.C §§ 1070 - 1099d (2012) ), which establishes various loan and grant programs to assist students in obtaining a postsecondary education at places like Malcolm X. The funds must be used at eligible institutions. In order to be an eligible institution, defendant must sign and comply with a program participation agreement (PPA). The PPA requires defendant to "meet the requirements established by * * * accrediting agencies or associations" (id. § 1094(a)(21) ) and provide accurate information to these accrediting agencies. Plaintiff's complaint alleges defendant breached the PPA when it asserted to the accrediting agencies that HeaPro 101 instructors were properly qualified. Plaintiff also cites to section 1094(c)(3)(A), which subjects any eligible institution to suspension or termination if it has engaged "in substantial misrepresentation of the nature of its educational program, its financial charges, or the employability of its graduates." Id. § 1094(c)(3)(A).

¶ 29 While not cited to by the plaintiff, we take judicial notice of the Higher Education Loan Act (Act) ( 110 ILCS 945/0.01 et seq. (West 2016) ). See Cruz v. Puerto Rican Society , 154 Ill. App. 3d 72, 75, 106 Ill.Dec. 867, 506 N.E.2d 667 (1987) (reviewing courts may take judicial notice of statutes of this state). Section 2 ("Declaration of Purpose") of the Act states:

"It is declared that for the benefit of the people of the State of Illinois, the conduct and increase of their commerce, the protection and enhancement of their welfare, the development of continued prosperity and the improvement of their health and living conditions, it is essential that this and future generations of youth be given the fullest opportunity to learn and to develop their intellectual and mental capacities and skills ; that to achieve these ends it is of the utmost importance that students attending institutions of higher education located in Illinois have reasonable alternatives to enhance their financial access to such institutions; that reasonable financial access to institutions of higher education will assist such youth in achieving the required levels of learning and development of their intellectual and mental capacities and skills ; that it is the purpose of this Act to provide a measure of assistance and an alternative method to enable students and the families of students attending institutions of higher education located in Illinois to appropriately and prudently finance the cost or a portion of the cost of such higher education; and that it is the intent of this Act to supplement federal guaranteed higher education loan programs, other student loan programs, and grant or scholarship programs to provide the needed additional options for the financing of a student's higher education in execution of the public policy set forth above." (Emphases added.) 110 ILCS 945/2 (West 2016).

Our General Assembly has concluded the purpose of providing public funds for higher education is to provide the fullest opportunity for recipients to learn and develop their "intellectual and mental capacities and skills." Id. Based on the above, it is obvious to this court the purpose of establishing both state and federal loan programs is to ensure individuals without the private means of paying for a college education are given access to funds to better develop themselves intellectually so as to provide a greater contribution to our state and country.

¶ 30 This is a case of first impression in this State. While the tort of retaliatory discharge is well established in our jurisprudence, none of the cases cited by the parties or uncovered in the court's own research shows this claim has been brought in the circumstances presented in this matter. Courts in this state have limited the tort's application. For most of its history, the tort was limited to (1) when the discharge stems from asserting a worker's compensation claim ( Kelsay v. Motorola, Inc. , 74 Ill. 2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978) ) or (2) where the discharge is for certain activities referred to as "whistle-blowing" ( Palmateer , 85 Ill. 2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981) ). Where a matter involves only a private and individual grievance, our courts have consistently refused to expand the tort of retaliatory discharge. See Geary v. Telular Corp. , 341 Ill. App. 3d 694, 701, 275 Ill.Dec. 648, 793 N.E.2d 128 (2003) (collecting cases where Illinois courts have refused to expand the tort of retaliatory discharge).

¶ 31 On review, the question we are asked to answer "is whether the provisions 'enunciate a public policy that plainly covers the situation to which the plaintiff objects.' " Carty v. The Suter Co. , 371 Ill. App. 3d 784, 789, 309 Ill.Dec. 139, 863 N.E.2d 771 (2007) (quoting Stebbings , 312 Ill. App. 3d at 367, 244 Ill.Dec. 825, 726 N.E.2d 1136 ). We conclude the public policy behind the federal Higher Education Act of 1965 and Illinois's Higher Education Loan Act would be seriously undermined if defendant is allowed to act in the manner alleged in plaintiff's complaint. The above-cited statutes demonstrate that in accepting public money, an institution of higher education should be able to assist those attending in "achieving the required levels of learning and development of their intellectual and mental capacities and skills." 110 ILCS 945/2 (West 2016).

¶ 32 Malcolm X is a public institution of higher learning whose mission and role in society is not to turn a profit but to educate and pass along knowledge to those students enrolled on its campus. In order to receive the benefits from attending classes at Malcolm X, many of its students take out loans under the above state and federal programs in order to subsidize, if not entirely fund, their tuition payments. It is axiomatic that in order to accomplish the mission of educating young men and women, defendant must staff its classes with competent individuals who actually possess the knowledge listed in the course syllabus. If defendant accepts loan money but uses it to hire incompetent and unqualified individuals who cannot properly instruct students who are enrolled in classes like HeaPro 101, defendant has essentially defrauded both the student and the taxpayer. The intent behind both the state and federal loan programs would be thwarted because those receiving incompetent instruction would be unable to "develop their intellectual and mental capacities and skills." Id. The benefit to the State would be nil. This is more than a personal matter but concerns "what is right and just and what affects the citizens of the State collectively." Palmateer , 85 Ill. 2d at 130, 52 Ill.Dec. 13, 421 N.E.2d 876.

¶ 33 Defendant argues that Illinois lacks a clearly mandated public policy regarding the right to obtain public financial aid for a postsecondary education. This argument is disingenuous. There would be no point to enacting either a federal or state statute providing for public financing (through student loans) of higher education if the government did not want its citizens to utilize it. Simply put, if our government did not think providing all citizens with access to funds for higher education was a good idea, it would not have enacted the statutes in the first place.

¶ 34 In making its argument, defendant cites solely to Turner , 233 Ill. 2d 494, 331 Ill.Dec. 548, 911 N.E.2d 369, a recent Illinois Supreme Court case. The plaintiff in Turner alleged that he was fired from his position as a licensed respiratory therapist after he informed a surveyor from the Joint Commission on Accreditation of Healthcare Organizations (Joint Commission) that his hospital's respiratory department did not conduct "immediate charting" after a patient had been seen in violation of the Joint Commission standard. Id. at 497-98, 331 Ill.Dec. 548, 911 N.E.2d 369. He alleged his discharge for making this report to the Joint Commission " 'violated public policy that encourages employees to report actions that jeopardize patient health and safety.' " Id. at 498, 331 Ill.Dec. 548, 911 N.E.2d 369.

¶ 35 In rejecting the plaintiff's claim, the court concluded plaintiff's actions of informing the surveyor of the hospital's charting practice fell short of the " 'supreme court's public-policy threshold articulated in Palmateer .' " Id. at 506, 331 Ill.Dec. 548, 911 N.E.2d 369. The court found that neither Joint Commission standards nor section 3 of the Medical Patient Rights Act ( 410 ILCS 50/3 (West 2006) ) established a clear public policy that plaintiff's discharge violated. Turner , 233 Ill. 2d at 505-06, 331 Ill.Dec. 548, 911 N.E.2d 369.

¶ 36 We find Turner to be distinguishable from the current case before us. Unlike the statutes in Turner , this case does present a clear statutory scheme which defendant's alleged actions sought to frustrate by terminating plaintiff. Both Illinois and the federal government have set up programs to help citizens attend schools of higher education so that those individuals may gain knowledge and better contribute to society. 20 U.S.C § 1070 et seq. (2002) ; 110 ILCS 945/2 (West 2016). This policy is effectively frustrated when institutions of higher learning terminate those individuals charged with ensuring its instructors have the requisite knowledge to pass onto students. We find plaintiff's complaint demonstrates a clear mandate of public policy and reverse the dismissal of plaintiff's retaliatory discharge count.

¶ 37 In his second issue, plaintiff argues the circuit court erred in dismissing his Whistleblower Act claim. The Whistleblower Act provides: "An employer may not retaliate against an employee for refusing to participate in an activity that would result in a violation of a State or federal law, rule, or regulation * * *." 740 ILCS 174/20 (West 2016). In order to sustain a cause of action under the Whistleblower Act, a plaintiff must establish (1) a refusal to participate in an activity that would result in a violation of a state or federal law, rule, or regulation and (2) the employer retaliated against the employee because of said refusal. Id. ; Sardiga v. Northern Trust Co. , 409 Ill. App. 3d 56, 61, 350 Ill.Dec. 372, 948 N.E.2d 652 (2011). Our courts have recognized the Whistleblower Act extends protection to "employees who call attention in one of two specific ways to illegal activities carried out by their employer. It protects employees who either contact a government agency to report the activity or refuse to participate in that activity." Sardiga , 409 Ill. App. 3d at 62, 350 Ill.Dec. 372, 948 N.E.2d 652.

¶ 38 Before us, plaintiff argues that the second amended complaint sufficiently alleges a "refusal to participate." This court has previously analyzed the language of the Act regarding "refusal to participate" and concluded:

" 'Refusing to participate' means exactly what it says: a plaintiff who participates in an activity that would result in a violation of a state or federal law, rule, or regulation cannot claim recourse under the Act. 740 ILCS 174/20 (West 2004). Instead, the plaintiff must actually refuse to participate. Black's Law Dictionary defines 'refusal' as '[t]he denial or rejection of something offered or demanded.' Black's Law Dictionary 1394 (9th ed. 2009). Indeed, the very title of section 20, 'Retaliation for certain refusals prohibited,' suggests that not every refusal qualifies for protection under the Act. 740 ILCS 174/20 (West 2004). Furthermore, the Act protects employees who complain to a government agency about an activity that the employee reasonably believes constitutes a violation of a state or federal law, rule, or regulation. 740 ILCS 174/15 (West 2004). Thus, 'refusing' means refusing; it does not mean 'complaining' or 'questioning * * *.' " (Emphasis added.) Id.

Even accepting the allegations in the second amended complaint as true and taking them in a light most favorable to plaintiff, there is no allegation in the second amended complaint that defendant offered or demanded plaintiff's participation in the allegedly wrongful activity. Plaintiff pleads that he was "intentionally excluded" and allowed "no input" into the decision to hire or retain the unqualified instructors. While plaintiff alleges he refused "to cover things up," "be quiet," and "look the other way," there is no allegation the defendant asked, requested, or demanded such action.

¶ 39 Plaintiff's brief does not mention Sardiga and instead argues that under the Act, "a plaintiff does not need to plead that the defendant specifically asked the plaintiff to perform an unlawful act." In support of this argument, plaintiff only cites to Robinson v. Morgan Stanley , No. 06 C 5158, 2011 WL 3876903 (N.D. Ill. Aug. 31, 2011). Federal cases interpreting Illinois law have no precedential value in this state ( Kelsay , 74 Ill. 2d at 182, 23 Ill.Dec. 559, 384 N.E.2d 353 ), and we decline to depart from this court's prior holding in Sardiga .

¶ 40 Other Illinois courts have reached similar conclusions regarding what is required to state a claim under the Whistleblower Act. In Young v. Alden Gardens of Waterford, LLC , 2015 IL App (1st) 131887, 391 Ill.Dec. 361, 30 N.E.3d 631, this court determined an employee adequately alleged a violation of the Whistleblower Act, where the employer asked its employee to falsify patient records in violation of the Nurse Practice Act ( 225 ILCS 65/70-5 (West 2010) ). Young , 2015 IL App (1st) 131887, ¶¶ 51-56, 391 Ill.Dec. 361, 30 N.E.3d 631 (employee alleged she was constructively discharged for her refusal to follow her supervisor's request to falsify medical records). In Corah v. The Bruss Co. , 2017 IL App (1st) 161030, 413 Ill.Dec. 231, 77 N.E.3d 1038, we found plaintiff's whistleblower claim deficient, in part, because "plaintiff acknowledged that defendant never asked plaintiff to misstate where [the individual]'s injury occurred" in violation of the Workers' Compensation Act ( 820 ILCS 305/4(h) (West 2012) ). (Emphasis added.) Corah , 2017 IL App (1st) 161030, ¶ 19, 413 Ill.Dec. 231, 77 N.E.3d 1038.

¶ 41 We adhere to the line of cases cited above that in order to state a claim under the Whistleblower Act, there must be a request or demand by the employer that the employee engage in the illegal or unlawful conduct. In this case, plaintiff fails to allege the defendant ever made a request or demand he approve or sanction the hiring of the allegedly unqualified instructor. Accordingly, he does not state a claim under the Whistleblower Act.

¶ 42 CONCLUSION

¶ 43 For the reasons stated above, we reverse the dismissal of plaintiff's retaliatory discharge claim but affirm the dismissal of plaintiff's whistleblower claim.

¶ 44 Affirmed in part and reversed in part.

¶ 45 Cause remanded.

Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.

      Malcolm X College is a community college located in the City of Chicago and is operated by defendant.

      Phlebotomy is the practice of drawing blood from a patient for clinical testing.

      There is no allegation in the second amended complaint that plaintiff contacted a governmental agency.

      Because plaintiff failed to establish the first element of a whistleblower claim, we decline to address whether the allege activity of the defendant constitutes "unlawful activity" as required to meet the second element.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois EX REL. Richard LINDBLOM and Ralph Lindblom, Plaintiffs-Appellants, v. SEARS BRANDS, LLC, an Illinois Corporation, Home Depot, U.S.A., Inc., a Georgia Corporation, Lowe's Home Centers, LLC, a North Carolina Corporation, Best Buy Stores, L.P., a Minnesota Corporation, and Gregg Appliances, Inc., an Indiana Corporation, Defendants
    (Best Buy Stores, L.P., a Minnesota Corporation, Defendant-Appellee).
    No. 1-17-1468
    Appellate Court of Illinois, First District, SECOND DIVISION.
    April 17, 2018
    Paul Berks, of Massey & Gail, LLP, of Chicago, for appellants.
    Baker & McKenzie LLP, of Chicago (Scott L. Brandman, David A. Pope, Matthew S. Mock, and David A. Hemmings, of counsel), for appellee.
   JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Relators-appellants, Richard Lindblom and Ralph Lindblom, brought this qui tam action on behalf of themselves and the State of Illinois under the Illinois False Claims Act (Act) ( 740 ILCS 175/1 et seq. (West 2014) ) against defendants Sears Brands, LLC (Sears); Home Depot U.S.A., Inc. (Home Depot); Lowe's Home Centers, LLC (Lowe's); Best Buy Stores, L.P. (Best Buy); and Gregg Appliances, Inc. (Gregg Appliances). This appeal involves only defendant-appellee Best Buy. For purposes of this appeal, relators alleged that Best Buy knowingly engaged in a scheme to avoid payment of retailers' occupation tax (sales tax) and use tax by treating the sale and installation of dishwashers and over-the-range microwave ovens as a construction contract, which is not subject to the collection of sales tax from purchasers. At the time relators added Best Buy as a defendant, the Illinois Department of Revenue (Department) was in the process of auditing Best Buy's sales tax calculation practices and had issued a proposed tax liability. Best Buy requested review of the proposed tax liability by the Department's Informal Conference Board (Board). Best Buy moved to dismiss relators' qui tam complaint under section 2-619(a)(9) of the Code of Civil Procedure ( 735 ILCS 5/2-619(a)(9) (West 2014) ), asserting that the "government action bar" set forth in section 4(e)(3) of the Act ( 740 ILCS 175/4(e)(3) (West 2014) ) barred relators' qui tam action because it was the subject of an administrative civil money penalty proceeding (the audit combined with the Board's review) and the State was already a party in that proceeding. The trial court agreed with Best Buy's position and dismissed Best Buy from relators' qui tam action.

¶ 2 Relators appeal the dismissal, asserting that the audit and the Board's review were not adversarial and, thus, could not be an administrative civil money penalty proceeding. Relators also contend that the subject of the audit and the Board's review were different from the qui tam suit that focused on fraud and Best Buy's knowing misclassification of sales of over-the-range microwaves and dishwashers as a construction contract in order to avoid remittance of sales tax to the Department. Finding merit in relators' position, we reverse and remand for further proceedings.

¶ 3 BACKGROUND

¶ 4 A. Retailers' Occupation Tax Act

¶ 5 In Illinois, the Retailers' Occupation Tax Act ( 35 ILCS 120/1 et seq. (West 2014) ) imposes sales tax on retailers selling tangible personal property to purchasers for use or consumption. Kean v. Wal-Mart Stores, Inc. , 235 Ill. 2d 351, 362, 336 Ill.Dec. 1, 919 N.E.2d 926 (2009) (citing 35 ILCS 120/2 (West 2006) ); 86 Ill. Adm. Code 130.101 (2005). The use tax complements the sales tax and is imposed on taxpayers for the use of tangible personal property purchased from a retailer. Irwin Industrial Tool Co. v. Department of Revenue , 238 Ill. 2d 332, 340, 345 Ill.Dec. 20, 938 N.E.2d 459 (2010) (citing 35 ILCS 105/3 (West 2008) ); 86 Ill. Adm. Code 150.101(a) (1991). The sales tax is computed as a percentage of "gross receipts" ( 35 ILCS 120/2-10 (West 2014) ), defined as the "total selling price" (id. § 1). Citibank, N.A. v. Illinois Department of Revenue , 2017 IL 121634, ¶ 2, 422 Ill.Dec. 833, 104 N.E.3d 400. A retailer remits the sales tax collected from the purchaser to the Department. Id. On the other hand, a construction contract involves the incorporation of tangible personal property into real estate, and such contracts are not subject to sales tax on the labor furnished and tangible personal property (materials and fixtures) incorporated into a structure. 86 Ill. Adm. Code 130.1940(c) (2000) ; id. § 130.2075(a)(2) (2001). Instead, the construction contractor pays a use tax based on the price it paid for the affixed property. Id. § 130.1940(c) (2000); id. § 130.2075(a)(2) (2001). Stated simply, a purchaser does not pay sales tax on a construction contract.

¶ 6 B. The False Claims Act

¶ 7 Several sections of the Act are relevant here. Section 3(a)(1)(G) provides that any person who "knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the State" is liable to the State for a civil penalty. 740 ILCS 175/3(a)(1)(G) (West 2014). Section 4(b)(1) authorizes private persons, referred to as plaintiffs-relators, to bring civil actions on behalf of themselves and on behalf of the State of Illinois against any person violating section 3(a)(1)(G). Id. § 4(b)(1); State ex rel. Beeler, Schad & Diamond, P.C. v. Burlington Coat Factory Warehouse Corp. , 369 Ill. App. 3d 507, 510, 307 Ill.Dec. 769, 860 N.E.2d 423 (2006) (citing 740 ILCS 175/4(b)(1) (West 2002) ). The action brought by a relator is known as a "qui tam " action. Id. (citing 740 ILCS 175/4(c) (West 2002) ). But under section 4(e)(3), a relator may not "bring an action under subsection (b) [permitting qui tam actions] which is based upon allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the State is already a party." 740 ILCS 175/4(e)(3) (West 2014). Section 4(e)(3)'s restriction is known as the "government action bar." See United States ex rel. Batty v. Amerigroup Illinois, Inc. , 528 F.Supp.2d 861, 876 & n.12 (N.D. Ill. 2007) (referring to 31 U.S.C. § 3730(e)(3) (2006), a federal parallel provision to 740 ILCS 175/4(e)(3), as the government action bar). The government action bar prohibits qui tam actions that are parasitic in that they duplicate the State's civil suits or administrative proceedings without giving the government any useful return, other than the potential for additional monetary recovery. People ex rel. Schad, Diamond & Shedden, P.C. v. QVC, Inc. , 2015 IL App (1st) 132999, ¶ 23, 391 Ill.Dec. 687, 31 N.E.3d 363 ; 740 ILCS 175/4 (West 2014).

¶ 8 After a relator files a qui tam action, the State may elect to intervene, take over and proceed with the action, or decline to intervene giving the relator the right to conduct the action. Burlington Coat Factory Warehouse Corp. , 369 Ill. App. 3d at 510, 307 Ill.Dec. 769, 860 N.E.2d 423 (citing 740 ILCS 175/4(b)(4) (West 2002) ). A relator is a party to the qui tam action and is awarded a percentage of the proceeds or settlement if the action is successful. Id. (citing 740 ILCS 175/4(c)(1), (d) (West 2002) ).

¶ 9 C. The Lindbloms' Case

¶ 10 Richard and Ralph Lindblom are brothers, and they own and operate Advanced Appliance, Inc., d/b/a Advanced Maytag Home Appliance Center (Advanced Maytag), located in Schaumburg, Illinois. Advanced Maytag's business consists of selling and servicing home appliances. Likewise, a portion of Best Buy's business includes selling home appliances, such as dishwashers and over-the-range microwaves.

¶ 11 Beginning in the late 1970s, the relators' father, who owned Advanced Maytag at the time, learned that Advanced Maytag's competitor, defendant Sears, did not charge sales tax on the retail sales of dishwashers and over-the-range microwaves when the purchaser also arranged for delivery and installation services from Sears because Sears treated those sales as a construction contract, which was not subject to the collection of sales tax from purchasers. Relators later learned that the other named defendants, including Best Buy, followed Sears's practice of failing to remit sales tax on the gross receipts from the sale of dishwashers and over-the-range microwaves by treating sales of those appliances as construction contracts. Relators believed this practice was a knowing and purposeful scheme to avoid remitting the taxes owed on the sale of dishwashers and over-the-range microwaves. Relators estimated that Advanced Maytag lost approximately 36 sales a year to defendants based on defendants' lower prices due to their failure to collect and remit the requisite sales tax.

¶ 12 In February 2015, relators contacted the Department and provided specific examples of defendants' failure to charge purchasers sales tax on dishwashers and over-the-range microwaves when also arranging for delivery and installation of those appliances. The Department acknowledged that defendants may have stretched the interpretation of "affixed to real estate," as well as what constitutes a construction contract versus a retail purchase with separate installation.

¶ 13 Following and allegedly in response to the information provided by relators, in June 2015, the Department issued a compliance alert to retailers addressing the proper tax treatment of appliances and other tangible personal property sold with installation services and whether those sales qualified as construction contracts. The compliance alert clarified that if a customer who is the end user of tangible personal property makes a retail purchase and enters into a separate agreement for installation, then the sale is an over-the-counter transaction subject to sales tax. The compliance alert explained that the sale of tangible personal property along with a separate agreement to install the property does not convert a retail sale into a construction contract. The applicable tax relating to the sale of tangible personal property is based either on the cost of the property affixed to real estate as part of a construction contract, or on the selling price of items sold over-the-counter.

¶ 14 On August 31, 2015, Best Buy received a notice of audit initiation from the Department notifying Best Buy that it was conducting a limited scope review of Best Buy's appliance sales to Illinois customers for the audit period from July 1, 2012, through December 31, 2013. The Department's audit of Best Buy was confidential and not publically disclosed. 35 ILCS 120/11 (West 2014).

¶ 15 During an audit, the Department examines the procedures a taxpayer has used in tax returns to calculate the tax base, any exemptions and deductions claimed, and the overall accuracy of the tax return filed. 35 ILCS 5/904(a) (West 2014); Illinois Department of Revenue, Illinois Audit Information, http://tax.illinois.gov/Publications/PIOs/PIO-60.pdf (last visited April 12, 2018). After the auditor has examined the taxpayer's books and records, the Department issues a written notice of proposed liability, notice of proposed deficiency, or notice of proposed (refund) claim denial reflecting the auditor's proposed audit adjustment. 86 Ill. Adm. Code 215.115 (2007).

¶ 16 A taxpayer may request review by the Department's Board of the proposed audit adjustments, and the Board's review is informal in nature. Id. The Board's informal review process affords taxpayers an opportunity to resolve disagreements with the Department's proposed audit adjustments before commencement of the formal protest and administrative hearing process. 86 Ill. Adm. Code 215.100 (2007). The Board's goal is to ensure that the Department's proposed audit adjustments disputed by the taxpayer are correct and to resolve disputes with taxpayers concerning their tax liability at the earliest opportunity possible. Id. A taxpayer may request an in-person conference with the Board, but the Board conducts no hearing of any type and formal rules of evidence do not apply at the informal conference. 86 Ill. Adm. Code 215.130 (2007). Documentation or information submitted to the Board by a taxpayer does not become part of any formal record and cannot be forwarded to any other agency or judicial body for purposes of making a determination on the merits of any case. 86 Ill. Adm. Code 215.120(c) (2007). Instead, both the taxpayer and the Department must provide all evidence that they wish to be considered directly to those entities in the event of a later dispute. Id. The Board's informal conference process is not subject to the requirements of the Illinois Administrative Procedure Act ( 5 ILCS 100/1-1 et seq. (West 2014) ), and the Board's final action is not subject to administrative review. 86 Ill. Adm. Code 215.120 (2007).

¶ 17 After the Board concludes its review, the Board issues an action decision and the audit is finalized. Id. ; Illinois Department of Revenue, Informal Conference Board Review, http://tax.illinois.gov/Publications/PIOs/PIO-58.pdf (last visited April 12, 2018). If the Board upholds the proposed tax liability, the Department issues a notice of tax liability. Following receipt of a notice of tax liability, a taxpayer may dispute the imposition of the tax by withholding payment and participating in an administrative hearing. 35 ILCS 120/4, 12 (West 2014); Illinois Department of Revenue, Illinois Audit Information, http://tax.illinois.gov/Publications/PIOs/PIO-60.pdf (last visited April 12, 2018). An administrative hearing is a formal legal proceeding, and it is presided over by an administrative law judge. Slater v. Department of Children & Family Services , 2011 IL App (1st) 102914, ¶ 28, 352 Ill.Dec. 108, 953 N.E.2d 44 ; Illinois Department of Revenue, Illinois Audit Information, http://tax.illinois.gov/Publications/PIOs/PIO-60.pdf (last visited April 12, 2018). Alternatively, the taxpayer may pay the tax under protest and seek judicial determination of the tax dispute under the State Officers and Employees Money Disposition Act (Protest Monies Act) ( 30 ILCS 230/1 et seq. (West 2014) ) in lieu of exhausting its administrative remedies under the tax code. National City Corp. & Subsidiaries v. Department of Revenue , 366 Ill. App. 3d 37, 44, 303 Ill.Dec. 326, 851 N.E.2d 224 (2006).

¶ 18 On November 12, 2015, relators filed this whistleblower qui tam action under the Act alleging that big-box appliance retailers, Sears, Home Depot, Lowe's, and Gregg Appliances, violated section 3(a)(1)(G) by knowingly and improperly avoiding or decreasing their obligation to collect and remit sales tax on dishwashers and over-the-range microwaves sold in conjunction with installation of the appliance. Best Buy was not originally named as a defendant. After receiving relators' complaint and pertinent information, the Attorney General, on behalf of the State, elected not to intervene in the action, and relators brought this action on their own behalf and on behalf of the State. At the time the complaint was filed, the Department had not completed its audit of Best Buy, nor had the fact of the ongoing audit been publically disclosed.

¶ 19 About two months later on January 25, 2016, the Department sent Best Buy a notice of proposed liability asserting that Best Buy owed sales tax on certain sales of appliances that were sold with installation and delivery and assessed $173,610 in tax, $26,040 in penalties, and $11,026 in interest. Best Buy requested full abatement of the assessed penalty, which the Department granted. On March 23, 2016, Best Buy requested review of the proposed liability by the Board. Best Buy asserted that it acted properly as a construction contractor not subject to sales tax on receipts from labor furnished and tangible personal property installed into a structure as an integral part of real property. Best Buy claimed that instead of sales tax, it incurred and remitted use tax on the cost of the tangible personal property that was permanently affixed to real property as the end user of the property. The Board granted Best Buy's request for an in-person conference, which was held on October 11, 2016.

¶ 20 While the Board's review was pending, relators amended their qui tam complaint to include Best Buy as a defendant. Approximately a month later on September 28, 2016, relators filed a second amended complaint, which is the subject of this appeal. In that complaint, relators alleged that defendants, including Best Buy, engaged in a scheme to conceal and avoid their obligations to pay sales tax to the State. The alleged scheme involved defendants characterizing nonpermanently affixed installed appliances (dishwashers and over-the-range microwaves) as permanent improvements to real property to avoid collecting sales tax from their customers. Relators asserted that defendants knowingly and incorrectly designated the sales of these appliances when they arranged for delivery and installation as construction contracts (instead of retail sales) and knowingly failed to collect and remit sales tax on the gross receipts from the sales of those appliances.

¶ 21 Defendants filed a joint motion to dismiss the second amended complaint, asserting that relators failed to plead fraud with the requisite specificity demonstrating that defendants knowingly submitted false claims and failed to remit the required tax due.

¶ 22 Best Buy also moved separately to dismiss the second amended complaint on the independent ground that the government action bar of section 4(e)(3) barred relators' claims because the claims were the subject of an administrative civil money penalty proceeding in which the State was already a party. Best Buy took the position that the government action bar applied because by the time relators named Best Buy as a defendant, the Department had completed its field audit and issued a notice of proposed liability and Best Buy had initiated the Board's review, which collectively constituted an administrative civil money penalty proceeding that addressed the exact tax issues raised by relators in the qui tam action. Best Buy characterized the qui tam action as nothing more than a parasitic lawsuit that provided no benefit to the State.

¶ 23 On January 23, 2017, after Best Buy filed its motions to dismiss and before the trial court ruled on those motions, the Board denied Best Buy's request to withdraw the tax and interest liabilities assessed in the notice of proposed liability. Best Buy received the Department's "Notice of Tax Liability" dated April 4, 2017, which assessed $173,610 in tax and $18,537.58 in interest for the audit period. Best Buy objected to the assessed liability by filing an action under the Protest Monies Act ( 30 ILCS 230/2a (West 2014) ).

¶ 24 After a hearing on defendants' motions to dismiss held on the same day Best Buy received the Department's notice of tax liability, the trial court granted defendants' joint section 2-615 motion to dismiss without prejudice, finding that the complaint failed to plead fraud with specificity. The trial court reserved ruling on Best Buy's separate motion to dismiss and directed the parties to submit additional briefs on the issue of whether the Department's audit procedures constituted an administrative civil money penalty proceeding that barred relators' qui tam claim. After reviewing the supplemental briefs, the trial court found that the government action bar applied because the Department's audit and notice of proposed liability, combined with Best Buy's invocation of the Board's informal assessment review, constituted an administrative civil money penalty proceeding. The trial court also found that the qui tam action and the prior administrative proceedings both involved the same core factual allegations: that Best Buy was not a construction contractor and was subject to sales tax on the sale of dishwashers and over-the-range microwaves. The trial court granted Best Buy's motion to dismiss with prejudice, dismissed Best Buy from the matter, and entered an Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) finding. Relators' timely appeal follows.

¶ 25 ANALYSIS

¶ 26 The dispositive issue on appeal is whether the Department's audit in conjunction with the Board's informal review was an administrative civil money penalty proceeding barring relators' qui tam action pursuant to the government action bar.

¶ 27 Because we must determine what qualifies as an administrative civil money penalty proceeding as that term is used in the Act, the issue before us is a matter of statutory construction. It is well settled that the cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. In re Marriage of Turk , 2014 IL 116730, ¶ 15, 382 Ill.Dec. 40, 12 N.E.3d 40. The statute's language is the best indication of the legislature's intent and must be given its plain, ordinary, and popularly understood meaning. Id. ; In re Detention of Lieberman , 201 Ill. 2d 300, 308, 267 Ill.Dec. 81, 776 N.E.2d 218 (2002). It is appropriate to consult a dictionary to determine a statutory term's plain and ordinary meaning. People v. Perry , 224 Ill. 2d 312, 330, 309 Ill.Dec. 330, 864 N.E.2d 196 (2007). When the statute's language is clear and unambiguous, we must apply it as written without resort to extrinsic aids or tools of interpretation. Turk , 2014 IL 116730, ¶ 15, 382 Ill.Dec. 40, 12 N.E.3d 40. A court should not consider the statute's words and phrases in isolation but instead should interpret each word and phrase in light of the statute as a whole. Standard Mutual Insurance Co. v. Lay , 2013 IL 114617, ¶ 26, 371 Ill.Dec. 1, 989 N.E.2d 591. Statutory interpretation is a question of law that we review de novo. Citibank, N.A. , 2017 IL 121634, ¶ 39, 422 Ill.Dec. 833, 104 N.E.3d 400.

¶ 28 The parties correctly note that the Act does not define the term "administrative civil money penalty proceeding." Both parties turned to Black's Law Dictionary's definition of the term "administrative proceeding": "[a] hearing, inquiry, investigation, or trial before an administrative agency, [usually] adjudicatory in nature but sometimes quasi-legislative." Black's Law Dictionary 54 (10th ed. 2014). Best Buy relies on the first half of the definition arguing that the Department's audit was investigatory and the Board's review was an adversarial proceeding. Relators rely on the second half of the definition arguing that an administrative proceeding, regardless of the form it takes, must be either adjudicatory in nature or quasi-legislative. Relators contend that the Department's audit along with the Board's informal review was neither. We agree with relators.

¶ 29 When relators added Best Buy as a defendant to the qui tam action, the Board was in process of reviewing the proposed liability, but the Department's audit had not yet been completed because no notice of tax liability had been issued to Best Buy. Until the Department completed its audit by issuing the statutory notice of final liability to Best Buy, there was no final assessment of tax due and, consequently, no determination subject to adjudication.

¶ 30 Although the Retailers' Occupation Tax Act establishes an administrative process that begins with the initiation of an audit and provides for an informal review of the proposed audit assessments, that process is not an administrative proceeding and does not implicate formal protest procedures. Importantly, the Board's informal review addressed the Department's notice of proposed, but not final, liability against Best Buy. The nature of the Board's review was only to reconsider the proposed assessment against Best Buy, and the Department did not present evidence supporting its proposed assessed liability. Moreover, the rules of evidence did not apply to Best Buy's in-person conference with the Board ( 86 Ill. Adm. Code 215.130(f) (2007) ), lending support to the position that the Board's review was not adversarial. A taxpayer's formal appeal rights are not triggered until the Department issues a statutory notice, which had not yet issued here at the time relators joined Best Buy as a defendant. Once the Department issues a statutory notice, then a taxpayer may invoke administrative proceedings before an administrative law judge or, alternatively, pay under protest and file an action in the circuit court. Shell Oil Co. v. Department of Revenue , 95 Ill. 2d 541, 545-46, 70 Ill.Dec. 191, 449 N.E.2d 65 (1983).

¶ 31 We must be mindful that the relevant statutory language refers to both a "civil suit" and "administrative civil money penalty proceeding" as matters sufficient to impose the government action bar. Reading "civil suit" and "administrative civil money penalty proceeding" together, along with the requirement that the State was already a party to either of those actions, we can easily ascertain that the legislature intended to bar qui tam actions that were already subject to an adversarial proceeding in which the State was a party. Although the Department initiated the audit of Best Buy and grants the Board power to review and consider a taxpayer's grievances concerning proposed audit assessments, neither aspect of the investigation of Best Buy's potential tax liability amounted to an adversarial proceeding. Rather, these phases are precursors to a future adversary proceeding should the taxpayer not be satisfied with the outcome of the Board's review. It is the taxpayer's conduct in pursuing relief from the notice of tax liability (no longer a proposed liability) by requesting an administrative hearing or initiating a civil suit under the Protest Monies Act that triggers the Department's status as a party in an adversarial proceeding. A "party" is commonly understood to mean "[o]ne by or against whom a lawsuit is brought" (Black's Law Dictionary 1297 (10th ed. 2014) ), and the Department and Best Buy only became parties and opponents in an adversarial proceeding when Best Buy filed its action under the Protest Monies Act, 10 months after it had been joined as a defendant in this case. In other words, at the time relators named Best Buy as a defendant, the Department had not yet issued a final tax liability subject to formal adversarial proceedings, and Best Buy had not yet taken any action to trigger the Department's status as a party in an adversarial proceeding.

¶ 32 Best Buy contends that, even if the Board's review was not an administrative civil money penalty proceeding, its protest monies action was one step in a continuous process (beginning with the Department's audit) that collectively qualifies as an administrative civil money penalty proceeding. Section 4(e)(3)'s language provides no support for Best Buy's position. Importantly, section 4(e)(3)'s language uses the present tense when it refers to "allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the State is already a party." (Emphases added.) Nothing in the statute's express language demonstrates that the legislature intended to bar a qui tam action based on the possibility that the State may be a party in a civil suit or administrative civil money penalty proceeding in the future. Likewise, the statute limits the government action bar to civil suits and administrative civil money penalty proceedings and does not include investigations or other steps leading to the eventual filing of either proceeding. Best Buy is attempting to expand the government action bar's applicability beyond what is provided for in the statute, which, under the well-established cannons of statutory interpretation, is not permissible. See Schultz v. Illinois Farmers Insurance Co. , 237 Ill. 2d 391, 408, 341 Ill.Dec. 429, 930 N.E.2d 943 (2010) (It is improper to add provisions not found in a statute or to depart from a statute's plain language by reading into the law exceptions, limitations, or conditions that the legislature did not express in the statute.). Although the Department's audit of Best Buy and the Board's review were steps in an administrative process and were investigatory in nature, they do not constitute steps in an administrative proceeding for purposes of the government action bar. Rather, steps in an administrative proceeding would include the filing of a complaint in the circuit court under the Protest Monies Act or requesting an administrative hearing, and neither occurred here before Best Buy was named as a defendant in relators' complaint.

¶ 33 Because the Department's audit and the Board's informal internal review of the proposed audit adjustments were not an administrative civil money penalty proceeding that the State was already a party to, the government action bar is not applicable to relators' qui tam action. For this reason, the trial court erred in granting Best Buy's section 2-619(a)(9) motion to dismiss.

¶ 34 Best Buy also contends that relators' qui tam action addressed the same subject as the Board's informal review and was "parasitic" because it relied on and used information derived from the Department's audit and the Board's review. But because the Department's audit and the Board's review of the proposed audit adjustment were not an administrative civil money penalty proceeding, Best Buy's contention is beside the point. Likewise, because this appeal involves a motion to dismiss on jurisdictional grounds addressing whether the government action bar precludes the qui tam action, we need not address Best Buy's contentions as to the merits of the allegations in the qui tam action that it erroneously treated retail appliance sales as construction contracts.

¶ 35 CONCLUSION

¶ 36 For these reasons, we reverse the trial court's dismissal of relators' qui tam complaint and remand for further proceedings consistent with this opinion.

¶ 37 Reversed and remanded.

Justices Pucinski and Hyman concurred in the judgment and opinion.

      Relators filed a third amended complaint against the other named defendants, which is not the subject of this appeal, and had not yet been ruled upon when the trial court dismissed Best Buy from the qui tam action.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lenvert DEBARDELABEN, Defendant-Appellant.
    Nos. 1-15-1741 & 1-15-1743 (cons.)
    Appellate Court of Illinois, First District, Third Division.
    Rule 23 filed April 18, 2018 Motion to Publish Granted May 10, 2018 Opinion filed May 16, 2018
    Michael J. Pelletier, Patricia Mysza, and S. Amanda Ingram, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Veronica Calderon Malavia, and Annette Collins, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion.

¶ 1 In this consolidated appeal, defendant Lenvert Debardelaben appeals from the natural life sentences he received in Cook County case numbers 10 CR 13998 and 11 CR 02745. On appeal, defendant contends that his natural life sentences must be vacated and the causes remanded for resentencing because he was not subject to sentencing under the Habitual Criminal Act (Act) ( 730 ILCS 5/5-4.5-95(a) (West 2010) ). Specifically, defendant contends that his conviction for armed robbery in case number 86 CR 403 did not contain "the same elements as an offense now classified in Illinois as a Class X felony" and, consequently, cannot serve as one of the prior convictions which rendered him subject to be sentenced as a habitual criminal. Defendant reasons that armed robbery in 1986 did not contain the same elements as armed robbery in 2010 because the legislature created new offenses based upon the type of weapon, i.e. , a firearm or dangerous weapon other than a firearm, used during the commission of the offense. We affirm.

¶ 2 Following a bench trial in case number 11 CR 02745, defendant was found guilty of aggravated criminal sexual assault, aggravated kidnapping, and aggravated unlawful restraint. The State then filed a notice of intent to seek a sentence of natural life in prison under the Act based upon defendant's prior convictions for armed robbery in case number 86 CR 403 and murder in case number 93 CR 21771. Defendant was subsequently sentenced to life in prison for the aggravated criminal sexual assault conviction and to a consecutive life sentence for the aggravated kidnapping conviction. Defendant then filed a motion to reconsider sentence. The trial court entered and continued the motion.

¶ 3 A bench trial was then held in case number 10 CR 13998. Defendant was ultimately found guilty of armed robbery and attempted criminal sexual assault. The State then filed a notice of intent to seek a sentence of natural life in prison under the Act based upon defendant's prior convictions for armed robbery in case number 86 CR 403 and murder in case number 93 CR 21771.

¶ 4 At a subsequent court date, the trial court first heard argument on the pending motion to reconsider sentence in case number 11 CR 02745. The court denied the motion to reconsider sentence. The court then held the sentencing hearing for case number 10 CR 13998 and sentenced defendant to natural life in prison for the armed robbery conviction and to a consecutive 15-year sentence for the attempted criminal sexual assault. This sentence was to be served consecutive to the sentence imposed in case number 11 CR 02745. That same day, defendant filed a notice of appeal in each case.

¶ 5 Before this court, defendant challenges his sentences in case numbers 10 CR 13998 and 11 CR 02745, and we have consolidated his appeals for disposition. On appeal, defendant contends that his 1986 conviction for armed robbery cannot serve as one of the convictions rendering him subject to a life sentence pursuant to the Act because in 1986 the offense of armed robbery did not contain the same elements as the offense did in 2010.

¶ 6 Defendant acknowledges that he failed to raise this argument before the trial court. See People v. Hillier , 237 Ill. 2d 539, 544, 342 Ill.Dec. 1, 931 N.E.2d 1184 (2010) (a defendant forfeits a sentencing issue that he fails to raise in the trial court through both a contemporaneous objection and a written postsentencing motion). However, he contends that this court may still reach his contention on appeal. He first relies on the exception to forfeiture set out in People v. Brown , 229 Ill. 2d 374, 389-90, 323 Ill.Dec. 42, 892 N.E.2d 1034 (2008), which held that in those cases where the State's evidence regarding a defendant's prior convictions "does not support the inference of eligibility because the evidence, on its face, demonstrates that [the] defendant's prior convictions do not meet all of the requirements" of the Act, a defendant is not prohibited from challenging his sentence on appeal. He next argues that this court may review his contention under the plain error doctrine. See People v. Herron , 215 Ill. 2d 167, 178-79, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005) (a court may consider an unpreserved error when (1) the evidence was so closely balanced that the error alone tipped the scales of justice against the defendant or (2) the error was so serious that it affected the fairness of the defendant's trial). Defendant finally contends that he was denied the effective assistance of counsel when counsel did not raise this argument before the trial court. We must first determine whether there was error, that is, whether defendant was properly subjected to sentencing under the Act.

¶ 7 Pursuant to the Act, a defendant is a habitual criminal, subject to a mandatory life sentence without parole, if he is convicted of three separate Class X offenses within 20 years, excluding time in custody. 730 ICLS 5/5-4.5-95(a) (West 2010); People v. Fernandez , 2014 IL App (1st) 120508, ¶ 47, 384 Ill.Dec. 55, 16 N.E.3d 151. This finding applies to a defendant "who has been twice convicted in any state or federal court of an offense that contains the same elements as an offense now * * * classified in Illinois as a Class X felony, criminal sexual assault, aggravated kidnapping, or first degree murder, and who is thereafter convicted of a Class X felony, criminal sexual assault, or first degree murder, committed after the 2 prior convictions." 730 ILCS 5/5-4.5-95(a)(1) (West 2010). The provision does not apply unless certain requirements are met, including that the "third offense was committed within 20 years of the date that judgment was entered on the first conviction." 730 ILCS 5/5-4.5-95(a)(4)(B) (West 2010). A defendant who is determined to be a habitual criminal "shall be sentenced to a term of natural life imprisonment." 730 ILCS 5/5-4.5-95(a)(5) (West 2010).

¶ 8 Here, defendant contends that one of the offenses used to render him subject to sentencing under the Act did not have the "same elements as an offense now * * * classified in Illinois as a Class X offense." See 730 ILCS 5/5-4.5-95(a)(1) (West 2010). He argues that in 1986 the offense of armed robbery did not have the same elements as the offense of armed robbery did in 2010. Specifically, he argues that the fact that the statute was changed to differentiate amongst the types of weapons used during the commission of the offense changed the elements of the offense of armed robbery and created new offenses.

¶ 9 Initially, we note that "courts have rejected a formalistic interpretation of the Act." Fernandez , 2014 IL App (1st) 120508, ¶ 17, 384 Ill.Dec. 55, 16 N.E.3d 151. There is no requirement that a predicate offense have precisely the same elements as an offense classified as a Class X offense in Illinois; rather, the predicate offense must be "equivalent" to a Class X felony in Illinois. Id. ¶¶ 17-19 ; see also 81st Ill. Gen. Assem., Senate Proceedings, June 27, 1980, at 27 (statements of Senator Sangmeister) (stating during the discussion regarding amending the Act to include offenses from other jurisdictions that those offenses would qualify provided "their elements * * * were * * * the same or close to the elements contained in the Illinois [s]tatutes").

¶ 10 Moreover, in the case at bar, defendant has not persuaded us that armed robbery in 1986 contained different elements than the offense did in 2010. The version of section 18-2(a) of the Criminal Code of 1961 (Code) in effect in 1986 stated that a person commits armed robbery when he commits a robbery "while he * * * carries on or about his * * * person, or is otherwise armed with a dangerous weapon." Ill. Rev. Stat. 1985, ch. 38, ¶ 18-2.

¶ 11 Effective January 1, 2000, which was before the offenses at issue in these cases, the armed robbery statute was amended (1) to create separate subsections for armed robbery "with a dangerous weapon other than a firearm" and armed robbery "with a firearm" and (2) to add a 15-year sentencing enhancement for being "armed with a firearm." Pub. Act 91-404, § 5 (eff. Jan. 1, 2000) (amending 720 ILCS 5/18-2 ). The version of section 18-2(a) of the Code in effect in 2010 states that a person commits armed robbery when he or she commits robbery and

"(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or
(2) he or she carries on or about his or her person or is otherwise armed with a firearm; or
(3) he or she, during the commission of the offense, personally discharges a firearm; or
(4) he or she, during the commission of the offense, personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person." 720 ILCS 5/18-2(a) (West 2010).

¶ 12 The first element of armed robbery in both the 1986 and 2010 versions is that a person must commit robbery. Although the 2010 version of the statute differentiates between the types of weapons used, we reject defendant's argument that the classification of armed robberies as those committed with a firearm and those committed with a dangerous weapon other than a firearm added an element to the offense. Rather, armed robbery has always contained the elements of robbery and the use of a dangerous weapon during the commission of the offense, be it a firearm or something else. See People v. Burke , 362 Ill. App. 3d 99, 104, 298 Ill.Dec. 511, 840 N.E.2d 281 (2005) ("Armed robbery had the same elements in 1978 and 1980 as it did in 2001."). Put another way, the changes to the statute did not create new elements of the offense of armed robbery; rather, they described different ways that a person could commit the offense of armed robbery. See People v. Washington , 2012 IL 107993 ¶ 6, 360 Ill.Dec. 539, 969 N.E.2d 349 (the amended version of, inter alia , the armed robbery statute created types of armed robbery "based on whether the offenses were committed with a dangerous weapon 'other than a firearm' or committed with a 'firearm' ").

¶ 13 We are unpersuaded by defendant's argument that the changes to the statute changed the nature of the offense of armed robbery or served to change the offense of "armed robbery into multiple offenses" with different elements. The elements of armed robbery remain the same; that is, one commits a robbery with either a firearm or a dangerous weapon other than a firearm. We question defendant's conclusion that the fact that a defendant is now charged with a type of armed robbery based upon the nature of the object used in the commission of the offense means that the State must now "prove" that the object is not a firearm. Rather, the State must prove that the object is a firearm or a dangerous weapon that is not a firearm; i.e. , the State must still establish that the object at issue qualifies as a dangerous weapon other than a firearm or a firearm, just as it did in 1986 when it had to prove that the object used was a dangerous weapon. See Ill. Rev. Stat. 1985, ch. 38, ¶ 18-2 (a person commits armed robbery when he commits robbery when he carries on or about his person, or is otherwise armed with a dangerous weapon).

¶ 14 Accordingly, while the 1986 and 2010 versions of the armed robbery statutes are not verbatim copies of one another, nevertheless they are "equivalent" in content, with the "same elements" for purposes of the Act. See 730 ILCS 5/5-4.5-95(a) (West 2010); Fernandez , 2014 IL App (1st) 120508, ¶ 19, 384 Ill.Dec. 55, 16 N.E.3d 151. Therefore, defendant's 1986 armed robbery conviction may serve as one of the prior convictions rendering him subject to sentencing under the Act. See Burke , 362 Ill. App. 3d at 104, 298 Ill.Dec. 511, 840 N.E.2d 281 ("Armed robbery had the same elements in 1978 and 1980 as it did in 2001.").

¶ 15 As there was no error, we must honor defendant's procedural default, and his contention on appeal must fail. See Hillier , 237 Ill. 2d at 544, 342 Ill.Dec. 1, 931 N.E.2d 1184 (a defendant forfeits a sentencing issue that he fails to raise in the trial court through both a contemporaneous objection and a written postsentencing motion). Moreover, defendant's argument that he was denied the effective assistance of counsel must also fail because, as discussed above, the complained-of conviction was properly used as a predicate offense rendering defendant subject to sentencing under the Act. See People v. Patterson , 217 Ill. 2d 407, 438, 299 Ill.Dec. 157, 841 N.E.2d 889 (2005) (counsel cannot be deemed ineffective based upon the failure to file a futile motion).

¶ 16 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 17 Affirmed.

Presiding Justice Cobbs and Justice Howse concurred in the judgment and opinion.


text:
    QUADRANGLE HOUSE CONDOMINIUM ASSOCIATION, Plaintiff-Appellant, v. U.S. BANK, N.A., Defendant-Appellee.
    No. 1-17-1713
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    Opinion Filed: April 20, 2018
    Jeffrey S. Youngerman, Terry A. Fox, and Timothy P. Mahoney, of Flaherty & Youngerman, P.C., of Chicago, for appellant.
    Brian R. Merfeld, of McCalla Raymer Leibert Pierce, LLC, of Chicago, for appellee.
   PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The plaintiff, Quadrangle House Condominium Association (Association), appeals from an order of the circuit court which: granted summary judgment in favor of the defendant, U.S. Bank, N.A. (Bank), on the Association's complaint seeking possession of the condominium unit commonly known as unit 18E, 6700 S. South Shore Dr., Chicago, Illinois (hereinafter referred to as the Subject Unit) plus a money judgment against the Bank in the sum of $17,810.35 for past due condominium assessments, interest, reasonable attorney fees and costs; and denying its cross-motion for summary judgment. For the reasons which follow, we affirm the judgment of the circuit court.

¶ 2 The facts giving rise to this litigation are not in dispute. On October 18, 2011, the Bank filed an action in the circuit court of Cook County against Sharla Hicks, the then title holder of the Subject Unit, and others to foreclose the mortgage thereon (case No. 11 CH 35958). On August 12, 2015, the circuit court in that foreclosure action entered a judgment of foreclosure and sale in favor of the Bank. A judicial sale of the Subject Unit was held on November 13, 2015, at which the Bank was the successful bidder. On January 7, 2016, the circuit court entered orders confirming the sale and granting the Bank possession of the Subject Unit.

¶ 3 On August 30, 2016, the Bank requested verification from the Association as to the amount of monthly assessments due on the Subject Unit. On September 1, 2016, the Association generated and sent a copy of the ledger for the Subject Unit to the Bank which reflected that there was $5411.31 in unpaid assessments accruing from November 13, 2015, through September 1, 2016.

¶ 4 On September 13, 2016, the Bank sent a $5411.31 check to the Association for the unpaid assessments. On November 30, 2016, the Association issued a Notice and Demand for possession of the Subject Unit to the Bank, demanding $17,810.35 for unpaid assessments, plus attorney fees and costs.

¶ 5 On January 13, 2017, the Association commenced the instant action seeking an order for possession of the Subject Unit and a judgment against the Bank in the sum of $17,810.35 plus after-accruing assessments, interest, reasonable attorney fees, and costs. The past due assessments claimed, included unpaid assessments that accrued prior to the Bank's purchase of the Subject Unit.

¶ 6 The Bank filed a combined motion under section 2-619.1 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619.1 (West 2016) ), seeking an involuntary dismissal of the Association's complaint pursuant to section 2-619 of the Code (id. § 2-619), or in the alternative, summary judgment in its favor pursuant to section 2-1005 of the Code (id. § 2-1005). In relevant part, the Bank argued that, pursuant to section 9(g)(3) of the Illinois Condominium Property Act (Act) ( 765 ILCS 605/9(g)(3) (West 2016) ), its payment of $5411.31 for assessments accruing after its purchase of the Subject Unit confirmed the extinguishment of any lien created in favor of the Association by reason of unpaid assessments accruing prior to its purchase of the unit at the judicial foreclosure sale held on November 13, 2015. The Association responded to the Bank's motion and filed a cross-motion for summary judgment, arguing, in relevant part, that the Bank failed to pay the monthly assessments on the Subject Unit beginning in the month following its purchase of the unit and only began paying post-purchase assessments in September of 2016. It concluded, therefore, that the Bank did not comply with the requirements of section 9(g)(3) of the Act and its payment of post-purchase assessments on September 13, 2016, did not confirm the extinguishment of any lien created in its favor for unpaid pre-sale assessments.

¶ 7 On June 7, 2017, the circuit court entered an order granting the Bank's motion for summary judgment and denying the Association's cross-motion for summary judgment. That order also recites that the Bank withdrew its motion for involuntary dismissal. This appeal followed.

¶ 8 As this case was disposed of by the circuit court in response to cross-motions for summary judgment, our review is de novo . See Lake County Grading Co., LLC v. Village of Antioch , 2014 IL 115805, ¶ 18, 385 Ill.Dec. 683, 19 N.E.3d 615. Summary judgment is to be granted only in those cases in which there is no genuine issue of material fact as to one or more major issue and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016). When, as in this case, parties file cross-motions for summary judgment, they concede that only a question of law is involved and invite the court to decide the issue on the record. Pielet v. Pielet , 2012 IL 112064, ¶ 28, 365 Ill.Dec. 497, 978 N.E.2d 1000. However, that concession notwithstanding, this court is not obligated to affirm a summary judgment in favor of either party if a material issue of fact exists, precluding summary judgment in favor of the movant. Id.

¶ 9 In its brief before this court, the only issue argued by the Association is whether, pursuant to section 9(g)(3) of the Act, the Bank's $5411.31 payment for post-purchase assessments on September 13, 2016, confirmed the extinguishment of any lien in its favor by reason of the prior unit owner's failure to pay assessments accruing prior to the Bank's purchase of the Subject Unit at the foreclosure sale. The Association did not raise any other argument in support of a reversal of the circuit court's judgment. As a consequence, any other argument for reversal has been forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017); WISAM 1, Inc. v. Illinois Liquor Control Comm'n , 2014 IL 116173, ¶ 23, 385 Ill.Dec. 1, 18 N.E.3d 1.

¶ 10 Relying upon the supreme court's decision in 1010 Lake Shore Ass'n v. Deutsche Bank National Trust Co. , 2015 IL 118372, 398 Ill.Dec. 95, 43 N.E.3d 1005, the Association contends that section 9(g)(3) of the Act requires that, in order to confirm the extinguishment of any lien it possessed on the Subject Unit for unpaid assessments accruing prior to the Bank's purchase of the unit, the Bank was required to commence remitting payment for post-purchase assessments on the unit in the month following its purchase at the foreclosure sale. The Association asserts that section 9(g)(3) provides for a rigid deadline of the month following the foreclosure sale for the Bank's obligation to commence remitting post-purchase assessments; and argues that, because the Bank failed to commence paying assessments for the Subject Unit in the month following the foreclosure sale, the Bank's payment of post-purchase assessments in September 2016 did not extinguish its lien for unpaid pre-sale assessments. The Association concludes, therefore, that the circuit court erred in granting summary judgment in favor of the Bank and denying its cross-motion for summary judgment.

¶ 11 We reject the Association's argument that, in order to extinguish a condominium association's lien for unpaid pre-sale assessments, the purchaser of a condominium unit at a judicial foreclosure sale is required to commence remitting post-purchase assessments in the month following the sale. Section 9(g) of the Act provides, in relevant part, that:

"(1) If any unit owner shall fail or refuse to make any payment of the common expenses or the amount of any unpaid fine when due, the amount thereof * * * shall constitute a lien on the interest of the unit owner in the property * * *.
* * *
(3) The purchaser of a condominium unit at a judicial foreclosure sale * * * shall have the duty to pay the unit's proportionate share of the common expenses for the unit assessed from and after the first day of the month after the date of the judicial foreclosure sale * * *. Such payment confirms the extinguishment of any lien created pursuant to paragraph (1) * * * of this subsection (g) by virtue of the failure or refusal of a prior unit owner to make payment of common expenses * * *." 765 ILCS 605/9(g) (West 2016).

As this court noted in its decision in Country Club Estates Condominium Ass'n v. Bayview Loan Servicing LLC , 2017 IL App (1st) 162459, ¶ 14, 416 Ill.Dec. 663, 84 N.E.3d 1140, "it is clear that a foreclosure buyer's duty to pay monthly assessments begins on 'the first day of the month after the date of the judicial foreclosure sale.' [Citation.] But on the face of the statute, section 9(g)(3) does not contain any time limit for confirming the extinguishment of an association's lien." See also 5510 Sheridan Road Condominium Ass'n v. U.S. Bank , 2017 IL App (1st) 160279, ¶ 20, 413 Ill.Dec. 301, 77 N.E.3d 1108. In its decision in 1010 Lake Shore , the supreme court did state that "[t]he first sentence of section 9(g)(3) plainly requires a foreclosure sale purchaser to pay common expense assessments beginning in the month following the foreclosure sale." 1010 Lake Shore , 2015 IL 118372, ¶ 24, 398 Ill.Dec. 95, 43 N.E.3d 1005. However, we do not interpret that phrase to mean that the purchaser of a condominium unit at a foreclosure sale must commence remitting payments for post-purchase assessments in the month following the sale. Rather, we interpret that phrase in the supreme court's decision to mean, as section 9(g)(3) clearly provides, that the purchaser of a condominium unit at a judicial foreclosure sale is obligated to pay the "common expenses for the unit assessed from and after the first day of the month after the date of the judicial foreclosure sale." 765 ILCS 605/9(g)(3) (West 2016). The first sentence of section 9(g)(3) merely fixes the date when the purchaser's liability for assessments begins. Our conclusion in this regard is further supported by the supreme court's statement in that same paragraph that the "second sentence [in section 9(g)(3) ] provides an incentive for prompt payment of those postforeclosure sale assessments." 1010 Lake Shore , 2015 IL 118372, ¶ 24, 398 Ill.Dec. 95, 43 N.E.3d 1005 ; see also 5510 Sheridan Road Condominium , 2017 IL App (1st) 160279, ¶¶ 20-24, 413 Ill.Dec. 301, 77 N.E.3d 1108.

¶ 12 Although we have rejected the Association's argument that the Bank was required to commence remitting payment for post-purchase assessments on the Subject Unit beginning in the month following the foreclosure sale in order extinguish any lien that the Association had on the Subject Unit for unpaid pre-sale assessments, our analysis continues. As an alternative argument, the Association asserts that the Bank failed to "promptly" pay the post-purchase assessments on the Subject Unit, and as a consequence, its September 2016 payment did not confirm the extinguishment of its lien on that unit for unpaid pre-sale assessments. We disagree.

¶ 13 As noted earlier, the supreme court in 1010 Lake Shore stated that "[t]he second sentence [in section 9(g)(3) ] provides an incentive for prompt payment of those postforeclosure sale assessments, stating '[s]uch payment confirms the extinguishment of any lien created' under subsection 9(g)(1) by the prior unit owner's failure to pay assessments." 1010 Lake Shore , 2015 IL 118372, ¶ 24, 398 Ill.Dec. 95, 43 N.E.3d 1005. Contrary to our colleagues in Bayview , we do not believe that the cited sentence in 1010 Lake Shore means that payment of post-purchase assessments must be prompt in order to constitute a confirmation of the extinguishment of any lien created under subsection 9(g)(1) for any unpaid pre-sale assessments. See Bayview , 2017 IL App (1st) 162459, ¶ 29, 416 Ill.Dec. 663, 84 N.E.3d 1140. In 1010 Lake Shore , the supreme court stated that the second sentence of section 9(g)(3) provides an "incentive for prompt payment" of post-purchase assessments. The court did not hold that prompt payment is a condition precedent to confirmation of the extinguishment of any lien created under subsection 9(g)(1) of the Act. Incentive is defined as "something that incites or has a tendency to incite to determination or action." Webster's Third New International Dictionary Unabridged 1141 (1981). The payment of post-purchase assessments is the step necessary to confirm the extinguishment of a condominium association's lien for unpaid pre-sale assessments. 1010 Lake Shore , 2015 IL 118372, ¶ 25, 398 Ill.Dec. 95, 43 N.E.3d 1005. Prior to the confirmation of the extinguishment of a condominium association's section 9(g)(1) lien, the lien is enforceable. See id. ¶¶ 41-42. It is that additional step required for extinguishment of the lien that is an incentive for prompt payment of post-purchase assessments.

¶ 14 Our conclusion that payment of post-purchase assessments, whenever made, is the step necessary to confirm the extinguishment of any lien created under section 9(g)(1) of the Act is supported by the supreme court's decision in 1010 Lake Shore . In paragraph 24 of that decision, the supreme court held that, "under the plain language of section 9(g)(3), the payment of postforeclosure sale assessments formally approves and makes certain the cancellation of the condominium association's lien." Id. ¶ 24. In paragraph 27, the supreme court held that "[s]ection 9(g)(3) provides an additional step to confirm or formally approve the extinguishment by paying the postforeclosure sale assessments." Id. ¶ 27. In that same decision, the supreme court held that: "Section 9(g)(3) only requires the foreclosure sale purchaser to pay assessments coming due following the foreclosure sale. Payment of those assessments confirms the extinguishment of the lien for the prior owner's unpaid assessments." Id. ¶ 39. The supreme court never qualified its analysis by stating that, before the payment of post-purchase assessments could act to confirm the extinguishment of any lien created under subsection 9(g)(1) of the Act, the payment must be made promptly following the purchase of the condominium at a foreclosure sale.

¶ 15 The supreme court in 1010 Lake Shore found no ambiguity in the provisions of the Act; rather, it found the language to be plain in its requirements. Id. ¶¶ 24-25, 27, 38. "Where the language of a statute is clear and unambiguous, a court must give it effect as written, without 'reading into it exceptions, limitations or conditions that the legislature did not express.' " Garza v. Navistar International Transportation Corp. , 172 Ill. 2d 373, 378, 217 Ill.Dec. 260, 666 N.E.2d 1198 (1996) (quoting Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc. , 158 Ill. 2d 76, 83, 196 Ill.Dec. 655, 630 N.E.2d 820 (1994) ). In Section 9(g)(3) of the Act, the legislature did not place any temporal requirement on the payment of post-purchase assessments in order for the payment to confirm the extinguishment of any lien created under subsection 9(g)(1) of the Act; nor do we believe that the supreme court in 1010 Lake Shore found promptness of payment to be an implicit requirement in the statute. To the extent that the decision in Bayview held to the contrary, we decline to follow it.

¶ 16 The evidentiary material submitted with the Bank's motion for summary judgment established that, on September 13, 2016, it paid the $5411.31 in post-purchase assessments on the Subject Unit which had accrued from the date that it purchased the unit at the foreclosure sale on November 13, 2015, through September 1, 2016. We hold, therefore, that the Bank's payment in full of all of the post-purchase assessments that had accrued prior to September 13, 2016, confirmed the extinguishment of any lien held by the Association for unpaid pre-sale assessments. As a consequence, we affirm the circuit court's order granting summary judgment in favor of the Bank and denying the Association's cross-motion for summary judgment.

¶ 17 Affirmed.

Justices Cunningham and Connors concurred in the judgment and opinion.