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