Bankruptcy Case No. 89-91427, Adversary Case No. 02-9032.United States Bankruptcy Court, C.D. Illinois.
November 10, 2004
OPINION
GERALD FINES, Chief Judge, Bankruptcy
This matter having come before the Court on a Motion to Dismiss Counts II, III and V filed by Defendant, Mark Frechette, and Memorandum in Opposition to Defendant Mark Frechette’s Motion to Dismiss Count V of Plaintiffs’ Second Amended Complaint, filed by the Plaintiffs; the Court, having heard arguments of counsel and being otherwise fully advised
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in the premises, makes the following findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
In considering the Motion to Dismiss Counts II and III of the Plaintiffs’ Second Amended Complaint, the Court finds that there is no dispute as to this Motion. Counts II and III of the Plaintiff’s Second Amended Complaint are identical to Counts in the Plaintiffs’ original Complaint which were previously dismissed with prejudice. Plaintiffs assert that Counts II and III of the Second Amended Complaint were merely added in order to preserve the Plaintiffs’ right to appeal. As in its previous decision concerning the similar allegations in the original Complaint, the Court finds that Counts II and III of the Second Amended Complaint concern issues which have been properly disposed of in previous Orders of this Court. As such, the Court finds that the Motion to Dismiss as to Counts II and III should be allowed.
As for the Motion to Dismiss Count V of the Plaintiffs’ Second Amended Complaint, the Court has carefully reviewed the entire record of Debtors’ bankruptcy proceeding and other related adversaries, and finds that numerous orders have been issued, including this Court’s Orders of February 1, 2002 and November 14, 2002, which disposed of the issues raised in Count V of the Plaintiffs’ Second Amended Complaint. The Court further finds that its decisions were affirmed by the United States District Court in an Opinion and Order dated February 22, 2003. Given these previous Orders, it is clear that the Plaintiffs have been on notice for an extended period of time that real estate taxes due and owing to Kankakee County for the years 1993, 1994, and 1995, continue to be due and owing. There is nothing in the Plaintiffs’ Second Amended Complaint to support a cause of action for equitable
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estoppel against Defendant Mark Frechette in his official capacities as Kankakee County Treasurer, Kankakee County Collector, and Kankakee County Treasurer as Trustee of the Indemnity Fund.
In support of their position that a cause of action for equitable estoppel exists, Plaintiffs have cited the case ofD.S.A. Finance Corporation v. County of Cook,345 Ill. App.3d 554 (1st Dist. 2003), for the proposition that the Doctrine of Equitable Estoppel may be invoked against a municipality if two prerequisites are met. The plaintiffs must show an affirmative act on the part of the municipality and inducement of substantial reliance by that affirmative act. In the instant case, the Court can see no set of facts where the Plaintiffs can show substantial reliance on any action alleged in their Second Amended Complaint on behalf of Defendant Mark Frechette in his official capacities. Regardless of the actions taken by Defendant Mark Frechette in seeking to collect current real estate taxes, the Debtors have been on notice of their continuing obligation to pay the 1993, 1994, and 1995 real estate taxes. As such, Plaintiffs are unable to make a case for reliance against Defendant Mark Frechette in his official capacities. The Court further finds that Defendant Mark Frechette, in his official capacities, was without any authority to take any action to relieve the Debtors of their liability for the 1993, 1994, and 1995 taxes. Thus, any action which he undertook could not form the basis for the Plaintiffs’ equitable estoppel claim. In the case of American National Bank Trust Co. of Chicago v. Village of Arlington Heights,115 Ill. App.3d 342 (1st Dist. 1983), the Court stated, at pages 347 and 348:
The affirmative acts which induce reliance by a party must be acts of the municipality itself, such as legislation by a city council, rather than merely the unauthorized act of a ministerial officer or a ministerial misinterpretation. . . . A person who deals with a governmental body takes the risk of having
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accurately ascertained that he who purports to act for it stays within the bounds of his authority and that is so even though the agent himself may have been unaware of the limitations on his authority.
For these reasons, the Court finds that the Motion to Dismiss as to Count V of the Plaintiff’s Second Amended Complaint must be allowed.