The opinion of the court was delivered by: Presiding Justice Garman
Plaintiffs AG Farms, Inc., and Harry and Imogene Van Deveer appeal from the May 26, 1997, order of the circuit court of Moultrie County dismissing their lawsuit and withdrawing initial certification of a class action.
In 1872 or thereabouts, the Paris & Decatur Railroad (P&DRR) constructed a railroad between Arthur and Hervey City, Illinois. On September 10, 1984, Penn Central Corporation (Penn Central), the successor railroad to the P&DRR, notified the Illinois Department of Transportation by letter of its intention to abandon this track. Between 1984 and 1991, Penn Central removed its tracks, ties, and other equipment and, on September 20, 1991, conveyed the right-of-way to the Department of Conservation of the State of Illinois (DOC), reserving certain interests.
Named plaintiffs are owners of fee simple interests in parcels that, they claim, include portions of the right-of-way. They brought suit, individually and as representatives of a class of similarly situated persons (735 ILCS 5/2-801 (West 1996)), against defendants American Premier Underwriters, Inc. (American Premier), and the Department of Natural Resources of the State of Illinois (DNR). American Premier is the successor in interest to Penn Central; the DNR was formerly the DOC.
Plaintiffs claim that Penn Central's only interest in the right-of-way was an easement. Specifically, plaintiff AG Farms alleges in count I of the complaint that one of its predecessors in title granted a right-of-way easement by deed to the P&DRR. It seeks certification of a plaintiff class of property owners whose predecessors in interest granted right-of-way easements to the P&DRR by deeds essentially identical in language to its own. Plaintiffs Harry and Imogene Van Deveer allege in count II that one of their predecessors in title granted a right-of-way easement by deed to Charles Waring and that the deed is in the railroad's chain of title. They seek certification of a plaintiff class of property owners whose predecessors in interest granted rights-of-way to Waring by deeds essentially identical in language to their own. AG Farms and the Van Deveers also allege in count III that there is no recorded deed of any interest to Penn Central or any of its predecessors in title to a right-of-way over the land described in this count and, therefore, that a prescriptive easement resulted from the railroad's adverse use of the right-of-way. They seek certification of a plaintiff class of property owners whose property includes a portion of the right-of-way for which there is no recorded deed to Penn Central or any of its predecessors in title. (We note that the parties use the term "adverse possession" when discussing the alleged easements on these properties. If plaintiffs are correct in their assertion that the railroad acquired only an easement, then the title owners never gave up possession and the railroad and its successors were entitled only to the use, not the possession, of the property. Thus, for the sake of clarity, we use the term "prescriptive easement.")
The relief sought by plaintiffs, individually and as representatives of three subclasses of property owners, is a declaratory judgment (735 ILCS 5/2-701 (West 1996)) that (1) the interest obtained by the P&DRR, whether by deed or by prescription, was a right-of-way easement; (2) that interest terminated when Penn Central abandoned the right-of-way by ceasing to use it for railroad purposes; and (3) Penn Central, therefore, had no interest to convey to DOC. As a result, plaintiffs assert, neither American Premier nor DNR now has any interest in the former right-of-way. Plaintiffs specifically do not ask the trial court to determine the actual present ownership of any of the properties in question.
Plaintiffs filed their original complaint on April 8, 1996, and a motion for class determination on April 9, 1996. At a June 20, 1996, hearing, plaintiffs' motion for class determination was allowed, as was their petition for leave to file a third-amended complaint. The third-amended complaint was filed on September 25, 1996. On February 14, 1997, defendant American Premier filed a motion to reconsider the class determination and a motion to dismiss under section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 1996)). The trial court announced its decision from the bench on May 22, 1997, and entered an order on May 26, 1997, decertifying the class action and dismissing the entire complaint with prejudice. The trial court denied plaintiffs' motion for reconsideration on August 26, 1997, and plaintiffs filed notice of appeal on September 25, 1997.
II. DECLARATORY JUDGMENT ACTION
American Premier's motion to dismiss was brought under section 2-619(a)(9) of the Code, which provides for involuntary dismissal if "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 1996). Specifically, the motion alleged that plaintiffs failed to "properly plead a 'Declaratory Judgment' cause of action," in that the complaint "is not dispositive of the real controversy, i.e., title to, and the right to possession of, the various parcels of property."
As this court has stated previously: "Motions made pursuant to section 2-619 of the Code must be limited to the grounds enumerated therein. [Citations.] Failure to state a cause of action is not such an enumerated ground, but is instead a basis for a section 2-615 motion." Universal Underwriters Insurance Co. ex. rel Manley Ford, Inc. v. Long, 215 Ill. App. 3d 396, 399, 574 N.E.2d 1284, 1286 (1991).
Although both motions admit all well-pleaded facts of the complaint, "the legal sufficiency of the complaint is disputed in a section 2-615 motion, but admitted in a section 2-619 motion." Bank of Northern Illinois v. Nugent, 223 Ill. App. 3d 1, 7, 584 N.E.2d 948, 952 (1991). The supreme court has acknowledged that there is "some degree of overlap" between the two motions, particularly when section 2-619(a)(9) of the Code is invoked as it is here, and defined "affirmative matter" in a section 2-619(a)(9) motion as "something in the nature of a defense which negates the cause of action completely or refutes crucial conclusions of law or Conclusions of material fact contained in or inferred from the complaint." Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 485-86, 639 N.E.2d 1282, 1290 (1994).
American Premier's motion, although labeled a section 2-619 motion, asserts that plaintiffs did not properly plead a declaratory judgment action, in that the relief sought would not dispose of the controversy. This assertion does not raise an "affirmative matter" under section 2-619 of the Code but, instead, challenges the legal sufficiency of the complaint, the ground supporting a section 2-615 motion. The confusion here is attributable, in part, to the defendants' conflating the issues of declaratory judgment and class action. At this stage of the analysis, the issue is whether the individual plaintiffs properly pleaded an action for declaratory judgment.
As this court has previously noted, the standard of review under both sections 2-619 and 2-615 of the Code is de novo. Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 51 (1993). Defendants, therefore, are mistaken when they assert that this court must apply an abuse-of-discretion standard to this question. Defendants fail to distinguish between refusing to grant declaratory relief after consideration of the merits and granting of a motion to dismiss on the pleadings.
"The trial court has a discretion as to granting declaratory judgment even though the statute would permit a judgment under the facts. [Citations.] However, when considering a motion to dismiss the complaint, the court has no exercise of discretion where the complaint states a cause of action. It is only where the plaintiff is entitled to no relief on the facts alleged that the complaint should be dismissed." La Salle Casualty Co. v. Lobono, 93 Ill. App. 2d 114, 119, 236 N.E.2d 405, 408 (1968).
Reversal on this basis, however, is not necessary because the mischaracterization of the motion to dismiss as a section 2-619 motion did not prejudice the nonmovants (Illinois Graphics, 159 Ill. 2d at 484, 639 N.E.2d at 1289).
Plaintiffs seek a declaratory judgment pursuant to section 2-701 of the Code, sometimes referred to as the declaratory judgment statute ...