The Veterans’ Assistance Commission of Madison County and Superintendent Bradley Lavite seek an appealable order after Circuit Judge David Dugan granted Madison County officials’ motion to dismiss the amended $1 million funding dispute.
In a July 14 memorandum to the court, attorney Thomas Burkart of Hamel wrote that Lavite and the VAC respectfully disagree with the order granting a motion to dismiss filed by defendants Debra Ming-Mendoza, Mark von Nida and Madison County.
Burkart added that the plaintiffs request the court enter a final, appealable order.
Ming-Mendoza is the current county clerk. Von Nida served as the county clerk from Dec. 1, 2007 to Nov. 30, 2012. He is the current circuit clerk.
Dugan granted the defendants’ motion to dismiss without prejudice on June 12.
“The court notes that this order grants the plaintiffs’ third opportunity to properly plead a recognizable cause of action,” Dugan wrote. “The court cautions plaintiffs’ counsel that the granting of leave to amend one’s complaint is not automatic, and is subject to the court’s discretion.”
In regards to the plaintiffs’ breach of contract claims, Dugan concluded that “there is nothing contained in the [first amended complaint] that provides factual basis for the proposition that the plaintiffs ‘gave up’ something of value or otherwise changed their position to their detriment in reliance on a promise of the defendants.”
Dugan wrote that Lavite’s duty is to ensure that the VAC continues to operate regardless of whether it is appropriated the amounts he sought in the budgetary process.
“This is significant because plaintiffs do not suggest that VAC was refused funds necessary for its operation,” the order states. “From the record, it appears that funds necessary to VAC’s operations have otherwise been available to VAC. Instead, VAC’s complaint is that, although it requested during the budgetary process a levy of taxes in excess of its need, those requested excess funds were not transferred to its special account.”
Dugan added that the plaintiffs’ alleged “forbearance” in deciding not to contest the appropriated funds is not “consideration” because the funds were not alleged to have been “bargained” for.
“Presumably, it is Mr. Lavite’s obligation by reason of his appointment to seek out those funds necessary to operate VAC. At the same time, no statute, case law or other authority has been proffered by plaintiffs that would support the notion that he has the obligation to attempt to secure more appropriated funds from Madison County property owners than is needed to do the statutory work of the VAC.
“Without an obligation, it cannot be said that the alleged ‘forbearance’ amounts to consideration. It is well established law that a promise to do something or the forbearance in not doing something is not consideration if there is already a duty to carry out that promise or a duty to refrain from doing something because there is no bargained for detriment,” Dugan wrote.
Dugan also wrote that the first amended complaint does not allege actual damages.
“If otherwise unnecessary funds were not appropriated, or if VAC has available to it all of the funds it needs to fulfill the purpose of its enabling statute, then there can be no damages because plaintiffs’ position was not worsened by the decision not to overfund VAC,” he wrote.
As for the plaintiffs’ breach of statutory duty, Lavite and the VAC asserted a new claim for each of the counts in the amended complaint by relying on the defendants’ alleged failure to levy as agreed.
Dugan concluded that the claims “still integrate the existence of an alleged agreement between the plaintiffs and the defendants which the plaintiffs have yet to properly plead.”
He added that the claims are actually breach of contract claims and should be dismissed.
In regards to the claim for injunctive relief, Dugan concluded that the plaintiffs do not properly plead a claim for such relief. For example, he wrote that the plaintiffs fail to show a clearly ascertained right or irreparable injury.
The defendants filed a motion to dismiss the amended complaint on March 20 through attorney Philip Lading of Sandberg Phoenix & von Gontard in Edwardsville.
They argued that the complaint failed to allege essential elements to support a breach of contract claim, fails to state a cognizable cause of action and fails to show the plaintiffs’ entitlement to injunctive relief.
The defendants argued that the plaintiffs’ breach of agreement claims are “substantively similar” to the original complaint and that “despite their additional allegations and attachments, they “once again” failed to state a recognized cause of action.
They also argued that the plaintiffs “again fail to allege facts supporting essential elements to injunctive relief.”
Lavite and the VAC filed an opposition to the defendants’ motion to dismiss on March 27, arguing that the amended complaint pleads sufficient facts to show an enforceable agreement exists.
The plaintiffs also argued that the amended complaint properly alleges damages, including precise amounts by which the VAC has been damaged by funding shortfalls.
“These paragraphs imply the obvious that the VAC would have $1,058,882.35 more in its coffers if the county clerk had determined and extended the correct rate,” the opposition stated.
Lavite and the VAC filed the 14-count amended complaint on March 2 after Dugan granted the defendants’ first motion to dismiss in February.
In their new complaint, the plaintiffs made four new claims against the defendants alleging breaches of statutory duty from 2013 through 2016.
Lavite and the VAC allege the defendants failed to extend the county’s tax rate sufficiently to raise the money approved for the VAC for tax years 2008 through 2018.
The suit states that according to Illinois common law, funding for the VAC is established when the VAC makes a recommendation of an appropriate amount necessary to assist veterans, pay salaries and pay expenses. Then the County Board either approves or disapproves.
According to the complaint, the VAC has offered the Madison County Board its recommendation of the funding needed each year for the past decade, which has been approved each year “with little or no change by written agreement contained in the Board’s official minutes.”
Once the funding request was approved, the County Clerk was tasked with determining the tax rate percentage to add to the county’s tax rate in order to produce the funds approved by the County Board, the suit states. Once levied and collected, the suit states that the money must be paid into a special fund in the county treasury and used as authorized.
The maximum annual rate percent for Veterans Assistance Commissions is .03 percent of the equalized assessed value of all property within the county, according to the County Code of Illinois.
Lavite and the VAC allege the rate percent necessary to raise the approved funds for the VAC since 2008 has not exceeded the maximum .03 percent.
Lavite and the VAC allege the defendants breached an agreement to fund the VAC with the approved amount when von Nida and Ming-Mendoza failed to properly determine the correct rate percent to raise the funds for the tax years at issue, resulting in a funding shortfall of $1,058,882.
In the original complaint, the plaintiffs claimed the defendants breached a written agreement, which was not expressly contended in the amended complaint.
The plaintiffs also made a claim for injunction, alleging the determination of the percentage rate necessary to fund the VAC is “a mathematical certainty using the equalized assessed value of all property in the county, and is a non-discretionary ministerial function of the County Clerk.”
“Plaintiffs’ remedies at law are inadequate in that the county’s breaches continued year after year and were of such a continuing nature that redress cannot be had at law alone,” the suit states.
Lavite and the VAC seek an order that Madison County, Ming-Mendoza and her successors in office “be enjoined from refusing to establish the percentage rate to be added to the county’s tax rate that will produce not less than the full amount of the VAC’s annual recommendation as approved by the County Board on an annual basis in the future.”
They also seek an order requiring the defendants to pay $1,058,882 into the special fund established for VAC expenditures.
Madison County Circuit Court case number 18-L-1731