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Hofner v. Glenn Ingram & Co.

OPINION FILED NOVEMBER 7, 1985.

JAMES P. HOFNER, PLAINTIFF-APPELLANT,

v.

GLENN INGRAM & COMPANY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 6, 1986.

Plaintiff, James P. Hofner, appeals from an order of the circuit court of Cook County dismissing his third amended complaint against defendants, Glenn Ingram & Company, an Illinois partnership, the individual partners, and William Gifford, not in his capacity as a partner in the firm. The court dismissed the complaint as being substantially insufficient at law, in violation of section 2-615(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-615(a)).

We affirm in part and reverse in part and remand.

• 1 Plaintiff invites us to draw facts, forming the basis of our review, in part from his sworn affidavit. Defendants brought their motion to dismiss plaintiff's third amended complaint pursuant to section 2-615 of the Code. Although courts may consider affidavits under a section 2-619 motion to dismiss (Ill. Rev. Stat. 1983, ch. 110, par. 2-619), courts may not consider affidavits under a section 2-615 motion to dismiss for failure to state a cause of action, which admits all well-pleaded facts and attacks facially only the complaint's legal sufficiency. (Curtis v. County of Cook (1982), 109 Ill. App.3d 400, 409, 440 N.E.2d 942, 948, aff'd in part & rev'd in part on other grounds (1983), 98 Ill.2d 158, 465 N.E.2d 116.) We will, therefore, base our opinion upon only the well-pleaded facts found in plaintiff's third amended complaint and his exhibits incorporated into the complaint by reference or thereto attached.

Plaintiff alleged the following facts. Plaintiff, a certified public accountant, signed a partnership agreement on May 4, 1978, becoming a member of the defendant accounting firm. The firm based partners' salaries on estimated future earnings for the subsequent fiscal year. During the year, partners drew their incomes off of their predetermined salary allotments, a monthly draw equaling one-twelfth of a partner's allotment. After signing the agreement, plaintiff alleged that he told William Gifford, a senior partner of the firm and a member of the firm's executive board, that he did not believe the firm would make the earnings projected for the following fiscal year and that he would resign if he could not earn the $40,000 that the firm projected for his income the following year. Plaintiff next alleged that Gifford reassured him about projected firm earnings and orally promised him that the firm would pay him a minimum of $40,000 for the year ahead.

Plaintiff further alleged that actual firm earnings were less than the firm's original projections. Gifford reassured plaintiff in February 1979 that plaintiff would receive a minimum of $40,000 for the fiscal year. Plaintiff alleged that, during the year, the firm paid him monthly amounts proportional to the alleged income guarantee, although his draw would have been less if he had not received the promised minimum salary. Plaintiff also alleged that no partner expressly or implicitly rescinded the proposed minimum income or gave him any reason to believe that Gifford lacked authority to make the promise. In April 1979, plaintiff tendered his resignation to Gifford, effective May 30, 1979. Plaintiff alleged that Gifford reassured him that he would receive the promised income for the year.

After plaintiff left the firm, he requested the balance of his allegedly-promised income for the year. Defendants denied that the firm made any promise to plaintiff and, further, filed suit against plaintiff claiming that plaintiff was entitled to a gross annual income of $18,976.18, but that he received $28,500 from the firm. Plaintiff responded by filing a lawsuit against the firm and the individual partners requesting an accounting and payment of the money owed.

On September 14, 1983, plaintiff filed his first amended complaint, abandoning his prayer for an accounting and proceeding strictly on the legal theories of breach of contract and fraud. On November 21, 1983, the trial court granted defendants' motion to dismiss the complaint and granted plaintiff leave to replead. On February 2, 1984, the trial court granted defendants' motion to dismiss plaintiff's second amended complaint and again granted plaintiff leave to replead. Plaintiff filed his third amended complaint on March 1, 1984, in which he added Gifford as a defendant in his individual capacity; he also added alternative counts under the theories of negligent misrepresentation and breach of fiduciary duty against all defendants. On March 13, 1984, defendants filed a motion seeking summary judgment in their suit against plaintiff. Plaintiff also filed, on March 30, a motion to compel Gifford to answer the complaint.

On May 7, 1984, the trial court granted defendants' motion to dismiss plaintiff's third amended complaint. The court, from the bench, agreed with defendants that plaintiff was bound to the partnership agreement and, thus, failed to state a cause of action in his complaint. In dismissing the complaint, the court also noted that it did not grant plaintiff leave to add Gifford as a defendant to the action in his individual capacity. The court further ruled that its order rendered moot plaintiff's motion to compel Gifford to answer and denied defendants' motion for summary judgment due to the existence of questions of fact. The court expressly found that no just reason existed to delay the enforcement or appeal of its order. Plaintiff appeals.

• 2, 3 The purpose of pleadings is to present, define and narrow the issues and limit the proof needed at trial. Pleadings are not intended to erect barriers to a trial on the merits but, instead, to remove them and facilitate trial. The object of pleadings is to produce an issue asserted by one side and denied by the other, so that a trial may determine the actual truth. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill.2d 300, 307-08, 430 N.E.2d 1005, 1008.) Courts should liberally construe pleadings and a motion to dismiss admits all facts well pleaded. In considering a motion to dismiss, however, courts are to construe pleadings strictly against the pleader. The purpose of attacking defects in pleadings is to point out the defects so that the complainant will have an opportunity to cure them before trial. The granting of a motion to strike and dismiss is within the sound discretion of the trial court. Harvey v. Mackay (1982), 109 Ill. App.3d 582, 586, 440 N.E.2d 1022, 1025.

I

Plaintiff claims that the trial court erred in finding that his third amended complaint was substantially insufficient at law. Explaining this pleading requirement, our supreme court stated as follows:

"To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. [Citations.] Second and unlike Federal practice, the complaint must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause of action alleged. If it does not, the complaint ...


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