Mitchell v. Norman James Const. Co., 1-96-1505

• Decision Date: 22 August 1997
• Docket Number: No. 1-96-1505,1-96-1505
• Citation: 225 Ill.Dec. 881,684 N.E.2d 872,291 Ill.App.3d 927
• Parties: , 225 Ill.Dec. 881 Nettie MITCHELL, Plaintiff-Appellant, v. NORMAN JAMES CONSTRUCTION CO., INC., and Norman James and St. Paul Federal Bank for Savings, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 872

684 N.E.2d 872

291 Ill.App.3d 927, 225 Ill.Dec. 881

Nettie MITCHELL, Plaintiff-Appellant, v. NORMAN JAMES CONSTRUCTION CO., INC., and Norman James and St. Paul Federal Bank for Savings, Defendants-Appellees.

No. 1-96-1505.

Appellate Court of Illinois,

First District, Fifth Division.

Aug. 22, 1997.

Eric Gibson, Oak Park, for Plaintiff-Appellant.

Righeimer Martin & Cinquino, Chicago (Frank R. Martin & Celeste P. Cinquino, of counsel), for Defendants-Appellees.

Justice HOFFMAN delivered the opinion of the court:

The plaintiff, Nettie Mitchell, appeals from orders of the circuit court granting judgment on the pleadings in favor of St. Paul Federal Bank for Savings (St. Paul) on count V of her second-amended complaint, striking and dismissing counts II, III and IV of that complaint which purported to allege actions against Norman James Construction Co. (hereinafter "James Construction") and Norman James (hereinafter "James"), and denying her leave to file a third-amended complaint. For the reasons which follow, we affirm in part, reverse in part, vacate in part and remand this action to the circuit court for further proceedings.

The plaintiff filed a verified six-count, second-amended complaint (hereinafter "complaint") against James Construction; its president, James; St. Paul; and St. Paul's employee, Carl Malone. The allegations underlying the complaint were as follows.

The plaintiff operated a day-care center out of her residence in Oak Park. In early 1992, the plaintiff decided to build an addition to her residence in order to accommodate her expanding business. Seeking financing for the project, she went to St. Paul and discussed a home improvement loan with a loan officer, Malone. During the course of these discussions, Malone represented that he had special knowledge regarding certain home improvement contractors, particularly James and James Construction. Malone assured the plaintiff that he had recommended James Construction and James to other homeowners who had been satisfied with their work. According to the complaint, Malone knew or reasonably believed that each of these statements and representations were false. In alleged reliance upon Malone's advice, the plaintiff entered into a verbal construction contract with James Construction in May 1992, agreeing to pay James $23,900 to build an addition to her home.

The plaintiff alleged that she performed under her contract with James Construction until July 24, 1992, when, after a site inspection, an Oak Park building inspector refused to approve the construction by reason of its noncompliance with the architect's plans and the Oak Park building code. The complaint alleged that the construction done was completely worthless, unsafe and unusable for its intended purpose, and that it would have to be entirely removed and replaced.

Count I of the complaint charged James Construction with breach of contract; count II charged James Construction and James, individually, with common law fraud and misrepresentation; count III charged James Construction and James, individually, with violations of the Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1994)) and the Home Repair Fraud Act (815 ILCS 515/1 et seq. (West 1994)); and count IV sought the release of a contractor's lien which James Construction had attached to the plaintiff's property on July 23, 1992. Count V charged St. Paul with vicarious liability for Malone's fraud in recommending James and James Construction, and with negligent failure to supervise Malone in the performance of his duties. Finally, count VI was an action against Malone for misrepresentation.

Count I was dismissed after the claim pleaded therein was discharged in a bankruptcy proceeding filed by James Construction. Count VI against Malone was voluntarily dismissed by the plaintiff pursuant to section 2-1009 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009 (West 1994)). This appeal deals only with the trial court's disposition of counts II, III, IV and V of the complaint, and its denial of the plaintiff's motion for leave to file a third-amended complaint.

We will first address the trial court's order of June 13, 1995, which granted judgment on the pleadings in favor of St. Paul on count V of the complaint. As to this order, the plaintiff argues 1) that the trial court erred in granting judgment on the pleadings in favor of a defendant that had never answered the complaint, and 2) that count V stated good and sufficient causes of action against St. Paul.

Several times in her brief before this court, the plaintiff asserts that judgment on the pleadings in favor of a defendant who has not answered a complaint is procedurally inappropriate. We disagree.

Section 2-615(e) of the Code provides that "[a]ny party may seasonably move for judgment on the pleadings." 735 ILCS 5/2-615(e) (West 1994). Unlike the Federal Rules of Civil Procedure which provide that a party may move for judgment on the pleadings after the pleadings are closed (Fed.R.Civ.P. 12(c)), section 2-615(e) of the Code contemplates the consideration of a defendant's motion for judgment on the pleadings on a complaint only, without the defendant having first filed an answer. Pollack v. Marathon Oil Co., 34 Ill.App.3d 861, 867, 341 N.E.2d 101 (1976). Although a judgment on the pleadings is ordinarily considered by the court after the parties are at issue, it may be appropriate in circumstances where no answer has been filed and the only ground therefore is that the allegations of the complaint are insufficient to state a cause of action. Mitchell v. Waddell, 189 Ill.App.3d 179, 182, 136 Ill.Dec. 486, 544 N.E.2d 1261 (1989). The plaintiff's arguments to the contrary on this procedural question are the same as those made to and rejected by this court in Pioneer Bank & Trust Co. v. Austin Bank, 279 Ill.App.3d 9, 13, 215 Ill.Dec. 785, 664 N.E.2d 182 (1996), and we find no need to analyze the issue further. The procedural history of this case leading up to the trial court's order of June 13, 1995, is, however, worthy of note.

On April 6, 1995, in lieu of an answer to count V of the complaint, St. Paul apparently filed a motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 1994)). We say apparently because a copy of that motion was not included in the record on appeal. However, from a reading of the plaintiff's response to that motion and from the entries set forth on the court's official docket (half-sheet), it is clear that St. Paul moved to dismiss count V contending that the plaintiff had 1) failed to properly allege a cause of action based upon the doctrine of respondeat superior, and 2) failed to adequately plead a cause of action for misrepresentation against its employee, Malone, whose conduct formed the basis of the plaintiff's claim against St. Paul. The first mention of a judgment on the pleadings in favor of St. Paul on count V of the complaint is found in the draft order entered by the trial court on June 13, 1995. However, the seeming disparity in the relief requested by St. Paul, dismissal of count V pursuant to section 2-615 of the Code for failure to state a cause of action, and the relief granted by the trial court, judgment on the pleadings in favor of St. Paul, forms no basis for reversal under the facts of this case.

When dismissal is sought pursuant to section 2-615 of the Code, the only issue before the court is whether the complaint or a particular count thereof states a cause of action upon which relief can be granted. Burdinie v. Village of Glendale Heights, 139 Ill.2d 501, 152 Ill.Dec. 121, 565 N.E.2d 654 (1990). The very same inquiry is presented when a motion for judgment on the pleadings is filed by a defendant prior to the filing of an answer. Mitchell, 189 Ill.App.3d at 181-82, 136 Ill.Dec. 486, 544 N.E.2d 1261; Pollack, 34 Ill.App.3d at 867, 341 N.E.2d 101. Consequently, the granting of judgment on the pleadings in favor of a defendant who has never answered the plaintiff's complaint is the functional equivalent of dismissing the complaint for failure to state a cause of action against that defendant.

When the legal sufficiency of all or a part of a complaint is challenged, all well-pleaded facts in the count of the complaint under attack are taken as true (Burdinie 139 Ill.2d at 505, 152 Ill.Dec. 121, 565 N.E.2d 654), and all reasonable inferences favorable to the plaintiff must be drawn from those facts (Mt. Zion State Bank & Trust v. Consolidated Communications, 169 Ill.2d 110, 115, 214 Ill.Dec. 156, 660 N.E.2d 863 (1995)). In reviewing the sufficiency of a complaint or a portion thereof, the court disregards all conclusions of law or fact unsupported by specific factual allegations upon which such conclusions rest. Burdinie, 139 Ill.2d at 505, 152 Ill.Dec. 121, 565 N.E.2d 654. Guided by these standards, we have conducted a de novo review of count V of the complaint (see Metrick v. Chatz, 266 Ill.App.3d 649, 651-52, 203 Ill.Dec. 159, 639 N.E.2d 198 (1994)) to determine whether that count states a cause of action against St. Paul.

It is well-settled that under the doctrine of respondeat superior, an employer may be liable for the negligent, wilful, malicious, or even criminal acts of its employees when such acts are committed in the course of employment and in furtherance of the business of the employer. Randi F. v. High Ridge YMCA, 170 Ill.App.3d 962, 964, 120 Ill.Dec. 784, 524 N.E.2d 966 (1988). The employer is not liable, however, where the acts were performed solely for the employee's benefit or were different from the type of acts the employee was authorized to perform. Wright v. City of Danville, 174 Ill.2d 391, 405, 221 Ill.Dec. 203, 675 N.E.2d 110 (1996), citing Restatement (Second) of Agency § 228(2) (1958); Randi F., 170 Ill.App.3d at 964, 120 Ill.Dec. 784, 524 N.E.2d 966. The fact that the acts also may have been beneficial to the employee...