Appeal from Circuit Court of Kankakee County No. 90CH148 Honorable Clark E. Erickson, judge Presiding.
The opinion of the court was delivered by: Justice Cook
In this unusual case the trial court dismissed, on the pleadings, a complaint that had been on file for almost seven years, after granting defendant leave to withdraw his answer. During the seven years, discovery had been taken and defendant had filed a motion for summary judgment that had been denied. We reverse and remand with instructions for the trial court (1) to allow plaintiff to amend to seek additional relief and (2) to resolve this case on the facts.
On June 7, 1990, plaintiff, the Retreat, a not-for-profit corporation, filed its complaint against defendant William F. Bell. The complaint alleged that the Retreat leased a 1.2- acre tract from Bernard Billberg, Jr., by a lease dated July 1, 1976, and that the lease gave the Retreat a right of first refusal in the event the lessor received "a bona fide offer to purchase the leased premises" during "the term of this Lease, or any renewal thereof." The complaint further alleged that on or about July 20, 1989, Bell purchased 16.5 acres (which included the 1.2-acre tract) from the estate of Florence Billberg for $285,000. The complaint alleged that the July 1, 1976, lease "was in force and effect on" July 20, 1989. Count I requested specific performance, that Bell be ordered to convey the 1.2-acre tract to the Retreat in exchange for $20,945 (the proportion of the total purchase price attributable to 1.2 acres). Count II sought a judgment against Bell in the amount of $100,000.
Bell filed an answer January 11, 1991, in which he admitted that the lease was in full force and effect until June 30, 1986, but denied that it was in force after that time. The parties proceeded with discovery. On November 13, 1992, Bell filed a motion for summary judgment alleging that the Retreat had not filed the necessary notice extending the lease beyond June 30, 1986. On March 2, 1994, the trial court denied the motion for summary judgment "in that there is a question of fact as to whether terms of the lease were extended." On April 19, 1994, new counsel entered their appearance for Bell. On June 2, 1994, Bell filed a "Motion for Leave to Withdraw Answer and File Motion to Dismiss or in the Alternative Motion to Strike." That motion was granted over two years later, on September 25, 1996. On February 6, 1997, the court granted the motion to dismiss in a "Memorandum of Opinion" that granted leave to amend.
On April 15, 1997, the court entered the order now appealed, stating:
"1. That the Complaint does not set forth facts in support of the Conclusion that the lease was 'in full force and effect on the date in question.'
2. That even if the Plaintiff did allege facts sufficient to support its Conclusion that the lease was in full force and effect on or about July 20, 1989, the Complaint would still fail to state a cause of action, as Plaintiff would have had, at best, a first right of refusal as to the parcel it rented and not as to the greater tract conveyed."
The April 15, 1997, order did not give plaintiff the right to amend.
The trial court has discretion to permit a defendant to withdraw an answer and file a motion to dismiss as long as there will be no prejudice to plaintiff. Premo v. Falcone, 197 Ill. App. 3d 625, 629, 554 N.E.2d 1071, 1074-75 (1990) (answer filed only two weeks earlier). Usually leave to withdraw an answer is granted when defendant desires to plead some affirmative matter, especially when some event has occurred subsequent to the filing of the answer. Bailey v. Petroff, 170 Ill. App. 3d 791, 798, 525 N.E.2d 278, 282-83 (1988) (leave to plead statute of limitations, which would be waived unless raised affirmatively); La Salle National Trust, N.A. v. Village of Westmont, 264 Ill. App. 3d 43, 77, 636 N.E.2d 1157, 1178 (1994) (defendant no longer owned property in question); Simpson v. Illinois Health Care Services, Inc., 225 Ill. App. 3d 685, 687, 588 N.E.2d 471, 473 (1992) (plaintiff failed to file health-care affidavit within 90 days of filing complaint). Of course when defendant has simply overlooked an issue that could be raised by a motion to dismiss and quickly seeks leave to withdraw an answer, such leave should be granted. Wall v. Pecaro, 204 Ill. App. 3d 362, 365, 561 N.E.2d 1084, 1086 (1990). That often happens when one defendant answers but a second defendant files what appears to be a meritorious motion to dismiss. First Bank v. Rinaldi, 262 Ill. App. 3d 179, 182, 634 N.E.2d 1204, 1207 (1994); Kruk v. Birk, 168 Ill. App. 3d 949, 952, 523 N.E.2d 93, 96 (1988) (defendant joined other defendants' motions alleging delay in service of process).
When leave to withdraw an answer is sought, not "to make a defense or assert a cross claim" (735 ILCS 5/2-616(a) (West 1996)), but simply to raise the technical objection that the wording of the complaint is conclusory, leave to withdraw the answer should be denied. Lawsuits should move forward, not backward. Motions to dismiss are useful to weed out, at an early stage, cases where plaintiff clearly cannot prevail, cases where it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recovery. Wright v. City of Danville, 174 Ill. 2d 391, 398, 675 N.E.2d 110, 115 (1996). That was not the situation here. If the complaint adequately apprised Bell of the issues so that he could take discovery and file a motion for summary judgment, how can Bell now complain that the complaint did not adequately inform him of the Retreat's claim? As the trial court held when it denied Bell's motion for summary judgment, the question whether the lease was in existence on July 20, 1989, is a question of fact. Questions of fact cannot be decided on a motion to dismiss. "In ruling on a section 2-615 motion to dismiss, the court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom." Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86, 672 N.E.2d 1207, 1213-14 (1996).
If Bell had information clearly indicating that the lease had not been extended, he should have filed another motion for summary judgment. Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905, 909, 629 N.E.2d 569, 573 (1994) (successive motions allowed). A motion for summary judgment is a better way to determine whether there are facts to support a complaint than is a motion to dismiss. It appears that the sole reason Bell wanted this case decided on a motion to dismiss, and not on a motion for summary judgment, was to take advantage of the rule that affidavits may not be considered in deciding section 2-615 motions. It is frequently said that the determination of a section 2-615 motion is based on the pleadings rather than on the underlying facts, that only facts apparent from the face of the pleadings may be considered, and that affidavits, products of discovery, and other evidentiary materials may not be considered. See 3 R. Michael, Illinois Practice §27.4 (1989) (Civil Procedure Before Trial). The cases so holding are concerned, however, with attempts on the part of the defendant, the movant, to contradict well-pleaded facts (which must be accepted as true) and to partially convert the section 2-615 motion into a motion for summary judgment. Wegman v. Pratt, 219 Ill. App. 3d 883, 896, 579 N.E.2d 1035, 1044 (1991) (error to strike prayer based on transcript of criminal trial); Seefeldt v. Millikin National Bank, 137 Ill. App. 3d 841, 843, 485 N.E.2d 30, 32 (1985) (section 2-615 judgment of dismissal cannot be supported by matters other than the pleadings, unlike judgments under section 2-619); Baughman v. Martindale-Hubbell, Inc., 129 Ill. App. 3d 506, 509, 472 N.E.2d 582, 584 (1984) (court may not consider supporting affidavits "offered by the movant"); Johnson v. Nationwide Business Forms, Inc., 41 Ill. App. 3d 128, 131, 359 N.E.2d 171, 173 (1976) (error to confuse motions and consider defendant's affidavits, depositions, or exhibits on a section 2-615 motion).
There are no cases, however, that ignore affidavits and discovery materials submitted by the plaintiff, in opposition to the section 2-615 motion, and in response to defendant's arguments that plaintiff is pleading only a Conclusion and that plaintiff cannot plead specific facts in support of that Conclusion. "The circuit court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recovery." Wright, 174 Ill. 2d at 398, 675 N.E.2d at 115. How can it be said that no set of facts can be proved that will entitle a plaintiff to recovery when the record contains affidavits setting out those facts? "Normally where a pleading is defective solely because it consists of Conclusions rather than ultimate facts, it cannot be said that no set of facts could be proven which would warrant relief." See 3 R. Michael, Illinois Practice §23.3, at 305 (1989) (Civil Procedure Before Trial). Why should we ignore the affidavits and limit our view solely to the supposedly conclusory pleading, when the affidavits support, instead of contradict, that pleading? Pleading motions should not be decided on technicalities, but "with a view to doing substantial justice between the parties." 735 ILCS 5/2-603(c) (West 1996).
A pleading that states that a lease "was in force and effect" on July 20, 1989, sufficiently pleads the ultimate fact. A requirement that a complaint plead that the lease was in force because a notice to extend was sent on such and such a date improperly requires the complaint to plead evidence. Nevertheless, the affidavits disclose there is more to this case than the semantic question whether we have an ultimate fact or a Conclusion.
No one disputes that the Retreat was in possession of the 1.2 acres on July 20, 1989. Bell argues that that possession was not under the lease, but as a holdover tenant from year to year. The nature of the possession, however, is a question of fact that cannot be decided on a motion to dismiss. Bell also argues that the Retreat was required to attach a ...