Scott Holland Jul. 15, 2016, 2:00pm

Two suburban communities in northern Kane County engaged in a custody battle over a Walmart store are headed back to circuit court — with a new presiding judge — after a state appellate panel weighed in on the dispute. 

Walmart has closed its East Dundee location and opened a new Walmart Supercenter in Carpentersville, less than two miles away. Seeking to block the move, East Dundee filed two lawsuits. 

East Dundee’s first attempt was involuntarily dismissed for lack of ripeness. The second, currently naming Carpentersville and Wal-Mart as defendants, is the one at issue on appeal before the Illinois Second District Appellate Court in Elgin.

Kane County Circuit Judge David R. Akemann had determined East Dundee lacked standing and dismissed that lawsuit, as well. Akemann, who presided over the initial complaint, also denied East Dundee’s motion for a new judge and for leave to file an amended complaint. 

On May 1, 2012, Carpentersville approved its Route 25 Redevelopment Plan in accordance with the Tax Increment Allocation Redevelopment Act. In August that year, Walmart told East Dundee it would close its store there in order to open a new facility in Carpentersville’s redevelopment project area, about 1.8 miles away from the old store. Walmart secured approval from Carpentersville for a $4.3 million reimbursement related to land and construction costs. 

According to the opinion, prior to announcing the move, Walmart had determined its East Dundee store “was not inadequate or economically obsolete.” The village was willing to help expand the store. 

Despite the dispute over what obligations Carpentersville owed under state law, the primary point of concern for the appellate justices centered on whether East Dundee should have been granted its request for a new judge. 

Carpentersville and Walmart argued Akemann’s “substantial ruling” in the first complaint and their view of the 2015 action as a continuation of the earlier litigation gave Akemann discretion to deny the motion that he be replaced. But in reviewing East Dundee’s appeal, Justice Kathryn E. Zenoff, who authored the court's opinion, noted the original complaint “was dismissed as a result of a substantive legal deficiency,” which means the village “was entitled to a substitution of judge” on the second complaint. 

Carpentersville and Walmart relied on the 2015 Illinois Supreme Court ruling in Bowman v. Ottney to support Akemann’s right to dismiss the motion for a new judge. However, Zenoff noted Bowman involved a voluntary dismissal, whereas East Dundee’s initial complaint was dismissed involuntarily.

Since Akemann improperly denied the motion for a change of judge, his subsequent order dismissing the complaint also is void under precedent established in the 2005 Third District Appellate Court ruling in Aussieker v. City of Bloomington, the justices said. 

Carpentersville and Walmart argued Illinois Supreme Court Rule 366 (a)(5), which went into effect Feb. 1, 1994, endows the appellate court with the power to “enter any judgment and make any order that ought to have been given or made.” Yet Zenoff wrote the defendants failed to elaborate on how the rule would allow the appellate justice to “affirm an order that was entered without authority.” 

The appellate court vacated Akemann’s order dismissing East Dundee’s complaint, reversed the order denying the motion for substitution of judge and remanded the case back to circuit court with directions to install a new judge. 

Second District Appellate iustices Susan F. Hutchinson and Ann B. Jorgensen concurred in the decision. 

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