Barber-Colman Co. v. A & K Midwest Insulation Co.

• Decision Date: 13 November 1992
• Docket Number: BARBER-COLMAN,No. 5-91-0387,5-91-0387
• Citation: 603 N.E.2d 1215,177 Ill.Dec. 841,236 Ill.App.3d 1065
• Parties: , 177 Ill.Dec. 841 COMPANY, Plaintiff-Appellant, v. A & K MIDWEST INSULATION COMPANY, a/k/a A & K Midwest Insulation & S/M Co., a/k/a A & K Sheet Metal, a foreign corporation, and United States Fidelity and Guaranty Company, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1215

603 N.E.2d 1215

236 Ill.App.3d 1065, 177 Ill.Dec. 841

BARBER-COLMAN COMPANY, Plaintiff-Appellant, v. A & K MIDWEST INSULATION COMPANY, a/k/a A & K Midwest Insulation & S/M Co., a/k/a A & K Sheet Metal, a foreign corporation, and United States Fidelity and Guaranty Company Defendants-Appellees.

No. 5-91-0387.

Appellate Court of Illinois Fifth District.

Nov. 13, 1992.

J.C. Mitchell and Stephen R. Green, Mitchell & Armstrong, Ltd., Marion, for plaintiff-appellant.

Edward J. Heller, Reed, Heller & Mansfield, Murphysboro, for defendants-appellees.

Justice CHAPMAN delivered the opinion of the court:

Barber-Colman Company (Barber-Colman) filed a two-count complaint against the defendants on February 21, 1991. Count I alleged that A & K Midwest Insulation Company (A & K) breached its contract with Barber-Colman by refusing to pay for work performed. Count II was an action upon a bond posted on behalf of A & K by United States Fidelity & Guaranty Company (Guaranty Company).

Guaranty Company filed a section 2-619(a)(5) motion (Ill.Rev.Stat.1991, ch. 110, par. 2-619(a)(5)) to dismiss Count II on the basis that it was untimely filed and attached two affidavits in support of its motion. The motion stated that suit on the bond was filed February 21, 1991, and that in order to qualify under the terms of the bond A & K must have worked on the construction project after February 21, 1990. The supporting affidavits of A & K's president and the president of the subcontractor on the project state that A & K ceased work months prior to February 21, 1990. The trial court dismissed Count II. Barber-Colman filed a motion to vacate but filed no counter-affidavits or other material to controvert defendant's affidavits. The trial court denied the motion to vacate, and plaintiff appeals.

Plaintiff contends that section 2-619 of the Code of Civil Procedure (Code) cannot be used to raise a statute of limitations defense unless the defect appears upon the face of the pleadings. Plaintiff also argues that motions to dismiss admit factual allegations and that since it alleged, "This suit was not filed after the expiration of one (1) year following the date on which the principal ceased work on the Contract * * *," this allegation must be deemed admitted for purposes of the motion, an admission which defeats the motion. We disagree with each of these arguments. In order to explain our ruling we will discuss motions to dismiss brought under Code sections 2-615 and 2-619 and motions for summary judgment brought pursuant to Code section 2-1005 (Ill.Rev.Stat.1991, ch. 110, pars. 2-615, 2-619, 2-1005).

SECTION 2-615

On January 1, 1934, section 45 of the Civil Practice Act abolished general demurrers. (See Triangle Sign Co. v. Randolph & State Property, Inc. (1957), 16 Ill.App.2d 21, 147 N.E.2d 451.) A demurrer was a pleading by a defendant which admitted that the matters of fact alleged in the complaint were true but contended that they were insufficient for the plaintiff to proceed upon or to oblige the defendant to answer. (Black's Law Dictionary 389 (5th ed. 1979).) Section 45 later became section 2-615 of the Code of Civil Procedure with no substantive change. Ill.Ann.Stat., ch. 110, par. 2-615, Historical & Practice Notes, at 408 (Smith-Hurd 1983); see also Teren v. City of Chicago (1952), 413 Ill. 141, 108 N.E.2d 476.

A motion to dismiss under section 2-615 attacks only the legal sufficiency of the complaint. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 312 N.E.2d 605.) Such a motion, as opposed to a section 2-619 motion, does not raise affirmative defenses. A section 2-615 motion attacks only defects apparent on the face of the complaint. (Urbaitis v. Commonwealth Edison (1991), 143 Ill.2d 458, 475, 159 Ill.Dec. 50, 57, 575 N.E.2d 548, 555; see Ill.Ann.Stat., ch. 110, par. 2-619, Historical & Practice Notes, at 662 (Smith-Hurd 1983).) A significant difference between section 2-615 motions, as compared to section 2-619 motions, and motions for summary judgment is that a section 2-615 motion is based on the pleadings rather than on the underlying facts. Accordingly, affidavits (Hofner v. Glenn Ingram & Co. (1985), 140 Ill.App.3d 874, 95 Ill.Dec. 90, 489 N.E.2d 311), the products of discovery (Dunn v. Baltimore & Ohio R.R. Co. (1987), 162 Ill.App.3d 97, 113 Ill.Dec. 868, 515 N.E.2d 1027), documentary evidence not incorporated into the pleadings as exhibits (Maas v. Cohen Associates, Inc. (1983), 112 Ill.App.3d 191, 68 Ill.Dec. 69, 445 N.E.2d 517), testimonial evidence (Maas, 112 Ill.App.3d 191, 68 Ill.Dec. 69, 445 N.E.2d 517), or other evidentiary materials (Baughman v. Martindale-Hubbell, Inc. (1984), 129 Ill.App.3d 506, 84 Ill.Dec. 622, 472 N.E.2d 582) may not be considered by the court in ruling on a section 2-615 motion. (See also 3 R. Michael, Illinois Practice § 27.4, at 504-05 (1989).) A basic premise of a section 2-615 motion is that it accepts, for purposes of the motion, that all well-pled facts in the complaint are true.

There are six bases for attacking pleadings under section 2-615:

(1) that the pleading be made more definite and certain;

(2) that designated immaterial matter be stricken;

(3) that necessary parties be added or misjoined parties be dismissed;

(4) that the pleading fails to allege essential elements in the cause of action;

(5) that the pleadings fail to state a claim upon which relief may be granted; and

(6) that the pleadings entitle the moving party to judgment.

(Ill.Rev.Stat.1991, ch. 110, par. 2-615.)

(See LaSusa & Heinrich, Pre-trial Motions Under Sections 2-615 and 2-619, 3 C.B.A. Rec. 32 (Nov. 1989).) None of these bases require the movant to provide any factual matter to the court in order to prevail. The question presented by a motion to dismiss under section 2-615 is whether sufficient facts are contained in the pleadings which, if proved, would entitle the plaintiff to relief. Urbaitis, 143 Ill.2d at 475, 159 Ill.Dec. at 57, 575 N.E.2d at 555.

SECTION 2-1005

If a motion challenging the pleadings may be determined solely from the face of the pleadings, a section 2-615 motion is appropriate. If matters not apparent on the face of the pleadings must be considered to decide the motion, that is, if the defect challenged lies in the underlying facts rather than in the pleadings, a motion for summary judgment under section 2-1005 is the proper tool. 3 Illinois Practice § 27.1, at 485-86.

Turning to summary judgment motions, Illinois Practice furnishes historical background:

"Summary judgment motions did not exist at common law. * * * The common law motions could not go behind the pleadings, and all well pleaded allegations had to be accepted at face value. * * * The need for a motion that could challenge the allegations of a pleading and establish that one or more of them was so clearly unfounded in fact that a trial would be a useless expenditure of limited resources, became obvious. * * * Summary judgments themselves were first established by statute in England in 1855, but were limited to claims on bills of exchange or promissory notes. * * * In Illinois, a motion for summary judgment was first recognized when the Civil Practice Act was adopted in 1933. The motion was extended so that it could be filed by defendants as well as by plaintiffs in a 1941 amendment. Prior to a revision in 1955, however, the motion was applicable only in contract actions, actions on a judgment for the payment of money, actions to recover possession of land, and actions to recover possession of specific chattels. In 1955, authority for the entry of summary judgments was extended to all civil cases. The 1955 amendment established summary judgment practice in Illinois in the form it possesses today." 4 Illinois Practice § 38.1, at 218-20.

Currently, the Code provides that these motions may be made "with or without supporting affidavits" (Ill.Rev.Stat.1991, ch. 110, pars. 2-1005(a), (b)); that the party opposing the motion may file opposing affidavits at the time of the hearing or on any earlier occasion (Ill.Rev.Stat.1991, ch. 110, par. 2-1005(c)); and that the motion is to be granted "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (Ill.Rev.Stat.1991, ch. 110, par. 2-1005(c)). The fact that the summary judgment motion may be made "with or without" supporting affidavits does not suggest that the motion may be used as a substitute for a section 2-615 motion to raise defects appearing on the face of the pleading. (4 Illinois Practice § 38.5, at 229.) The Illinois Supreme Court noted that a section 2-615 motion to dismiss raises "an inquiry into whether a pleading is sufficient to state a cause of action," while a summary judgment motion "almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried * * *." Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 406, 312 N.E.2d 605, 609.

In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 309, 489 N.E.2d 867, 871.) The purpose of the summary judgment procedure is not to decide the facts but to ascertain whether a factual dispute exists. (Haberer v. Village of Sauget (1987), 158 Ill.App.3d 313, 110 Ill.Dec. 628, 511 N.E.2d 805.) If a party moving for summary judgment supplies facts which, if not contradicted, would entitle the party to a judgment as a matter of law, the opposing party cannot rely on its pleadings alone to raise issues of material fact. (...