Loveland v. City of Lewistown

• Citation: 405 N.E.2d 453,39 Ill.Dec. 700,84 Ill.App.3d 190
• Decision Date: 21 May 1980
• Docket Number: No. 79-769,79-769
• Parties: , 39 Ill.Dec. 700 Max R. LOVELAND, Petitioner-Appellant, v. CITY OF LEWISTOWN, a Municipal Corporation, Alwilda Gaskill, Donald Hackett, James Shaw, Eugene Bavery, Kent Howard, James Nappin and Lee Colbert, Mayor and Aldermen of the said City of Lewistown, Illinois, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 453

405 N.E.2d 453

84 Ill.App.3d 190, 39 Ill.Dec. 700

Max R. LOVELAND, Petitioner-Appellant, v. CITY OF LEWISTOWN, a Municipal Corporation, Alwilda Gaskill Donald Hackett, James Shaw, Eugene Bavery, Kent Howard James Nappin and Lee Colbert, Mayor and Aldermen of the said City of Lewistown, Illinois, Respondents-Appellees.

No. 79-769.

Appellate Court of Illinois, Third District.

May 21, 1980.

Craig E. Collins, Barash & Stoerzbach, Galesburg, for petitioner-appellant.

F. Stewart Merdian, Kost, Downs & Merdian, Lewistown, for respondents-appellees.

STOUDER, Justice:

This is an appeal from a judgment of the circuit court of Fulton County in favor of the defendants-appellees, the city of Lewistown and the mayor and aldermen, and against the plaintiff-appellant, Max Loveland. On May 1, 1973, Loveland was appointed Street Commissioner for the city of Lewistown. On May 6, 1975, he was reappointed. On May 30, 1976, the Mayor of Lewistown was contacted by Lloyd Hayes, the Water Commissioner of Lewistown, concerning a break in a waterline. Hayes advised the Mayor that it would be necessary to dig up a small portion of the street to make necessary repairs. Hayes further advised the Mayor that he had requested the plaintiff, the Street Commissioner, to operate the city owned backhoe to do the necessary excavation of the street. The plaintiff refused this request. The Mayor then requested him to perform the excavation but this request was also refused. As a result of this refusal, the plaintiff was discharged from his duties as Street Commissioner.

Plaintiff then filed a suit for mandamus against the Mayor and City Council seeking reinstatement to the position of Street Commissioner and payment of salary from the date of removal to the date of reinstatement, which was dismissed upon defendants' motion. Plaintiff filed an amended petition and defendants' motion to dismiss was denied. Defendants then filed a motion for summary judgment which was denied. Subsequently, defendants filed a second motion for summary judgment and in response plaintiff moved to strike the affidavit of Hayes, which was attached to the motion for summary judgment, and also to deny the motion. On January 29, 1979, the lower court granted the motion for summary judgment for defendants. Plaintiff's motion for rehearing was denied and plaintiff timely appealed.

On appeal, plaintiff raises three issues: (1) whether the trial court erred in entertaining the defendants' second motion for summary judgment; (2) whether the trial court erred in failing to strike the defendant's affidavit of Hayes; and (3) whether the trial court erred in granting summary judgment for the defendants. We affirm.

We first consider plaintiff's contention that the trial court erred in entertaining the defendants' second motion for summary judgment. Defendants had already had one motion for summary judgment directed to the pleadings denied. Subsequent to the first motion discovery took place. This discovery brought forth facts which the defendants felt eliminated any genuine issues of material fact. They moved again for summary judgment and, on the strength of the facts discovered, the trial court granted the motion.

The plaintiff argues that since the defendants had previously brought one motion for summary judgment which was denied, they should be precluded from bringing another such motion. Plaintiff contends that to permit more than one motion for summary judgment is to invite delay.

Section 57(3) of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 57(3)) states that summary judgment "shall be rendered forthwith 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." Section 57(2) (Ill.Rev.Stat.1977, ch. 110, par. 57(2)) permits the defendant to move for summary judgment "at any time". There is no mention in the statute of whether or not more than one motion for summary judgment may be brought. Nor has our research uncovered any cases ruling on the matter. We believe that where new facts come to light after a motion for summary judgment has been made and denied, it is not improper to bring a second motion for summary judgment. Contrary to the plaintiff's assertion that permitting a second motion would increase delay, we believe that it expedites the judicial process. The purpose of the summary judgment procedure is to determine whether any genuine issue of material fact exists and to summarily dispose of cases where none does exist so as to avoid congestion of trial calendars and the expense of unnecessary trials. Adler Business Machines, Inc. v. Babbey Office Machines, Inc. (1974), 24 Ill.App.3d 38, 320 N.E.2d 440. Where a party discovers facts which make the case properly resolvable by summary judgment, the case should not have to go to trial simply because there was a prior motion for summary judgment. In such a situation, the trial judge should have the discretion to permit a second motion where, after considering the status of discovery, the judge believes the motion to be appropriate. Therefore, we find no error in the trial court's permitting a second motion for summary judgment.

Plaintiff's next issue is whether the trial court erred in failing to strike Hayes' affidavit. Defendants' second motion for summary judgment was accompanied by an affidavit of Hayes, the water commissioner. Plaintiff claims that the affidavit should have been stricken in that it did not contain facts admissible in evidence. It is true that if the evidence is not admissible at trial, it would not be admissible in an affidavit accompanying a motion for summary judgment. Unzicker v. Chambers (1972), 8 Ill.App.3d 992, 291 N.E.2d 231. However, the facts in the affidavit would be admissible at trial with two omissions.

Hayes' affidavit consists of ten statements, saying that he had never operated a backhoe, had previously designated Loveland and others to do street excavation work, that he had asked Loveland to perform the work again on behalf of the Water Department, and that Loveland refused. Contrary to plaintiff's assertions, these statements are not irrelevant. The relevant ordinances in this case provide that if the Water Commissioner is unable to perform the work, he may designate someone else to perform the work. We believe that Hayes' affidavit is...