Storm & Associates, Ltd. v. Cuculich

• Citation: 233 Ill.Dec. 101,298 Ill.App.3d 1040,700 N.E.2d 202
• Decision Date: 28 August 1998
• Docket Number: No. 1-98-0841,1-98-0841
• Parties: , 233 Ill.Dec. 101 STORM & ASSOCIATES, LTD., Plaintiff-Appellant, v. Donald CUCULICH, Nancy Cuculich, Marshall Patner and Marshall Patner & Associates, P.C., an Illinois professional corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 202

700 N.E.2d 202

298 Ill.App.3d 1040, 233 Ill.Dec. 101

STORM & ASSOCIATES, LTD., Plaintiff-Appellant, v. Donald CUCULICH, Nancy Cuculich, Marshall Patner and Marshall Patner & Associates, P.C., an Illinois

professional corporation, Defendants-Appellees.

No. 1-98-0841.

Appellate Court of Illinois,

First District, Fifth Division.

Aug. 28, 1998.

Rehearing Denied Sept. 24, 1998.

Timothy J. Storm, of counsel, Chicago, for Plaintiff-Appellant.

Krasnow, Sanberg & Cohen, Chicago (Colby M. Green, of counsel), for Defendants-Appellees.

Presiding Justice HOFFMAN delivered the opinion of the court:

The plaintiff, Storm & Associates, Ltd. (Storm), appeals from an order of the circuit court dismissing its four count amended complaint. For the reasons which follow, we affirm the dismissal of count II, reverse the dismissal of counts I, III and IV, and remand this cause to the circuit court with directions and for further proceedings consistent with this opinion.

From the allegations contained in Storm's amended complaint (complaint), it appears that the defendants, Donald and Nancy Cuculich, were the named plaintiffs in a class action suit pending in the circuit court of Cook County (hereinafter referred to as the "Class Action"), and were being represented in that action by Marshall Patner (Patner) and Marshall Patner & Associates, P.C. (collectively referred to as "the Patner Defendants"). While the Class Action was pending and after the class had been certified, Patner retained Storm to act as co-counsel. Storm accepted the engagement on a contingent fee basis which was memorialized in a letter. Thereafter, Storm filed its appearance as additional counsel for the Cuculichs.

Storm alleges that it performed legal services on behalf of the Cuculichs at Patner's direction prior to its engagement as co-counsel being terminated "without cause." After the defendants refused to compensate Storm for the legal services it rendered as co-counsel in the Class Action, Storm instituted the instant action.

Count I of Storm's complaint is a quantum meruit claim against the Cuculichs for the value of the legal services it rendered and expenses it incurred as co-counsel in the Class Action. This count is premised upon the allegation that Patner acted as the Cuculichs' agent in both retaining and terminating Storm. Count II of the complaint asserts a claim against the Patner Defendants for breach of an agreement in which they allegedly guaranteed payment of Storm's fees. In support of this count, Storm attached to the complaint a copy of a handwritten note which is signed by Patner and which provides in relevant part: "As I said in my phone message, I will protect your hours. But you did not include them with your letter; will you please do so, at your convenience."

Count III purports to state a claim for tortious interference with contract against the Patner Defendants, alleging that they "intentionally and with malice caused or induced" the Cuculichs to terminate Storm "without cause or justification." In count IV of its complaint, pled in the alternative to counts I, II and III, Storm asserts a quantum meruit claim against the Patner Defendants for the value of the legal services it rendered and the expenses it incurred as co-counsel in the Class Action.

The defendants responded to Storm's complaint with a combined motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 1996)). As to counts I and IV, the defendants argued that: 1) the services Storm rendered did not confer any benefit upon the defendants individually, and 2) Storm was not yet entitled to recover any attorney's fees because the Class Action was still pending and no fund had been created from which those fees could be paid. As to count II, the Patner Defendants claimed that: 1) the action was barred by the provisions of section 1 of the Frauds Act (740 ILCS 80/1 (West 1996)), and 2) the writing upon which Storm relied was not a guaranty as it contained no promise to pay any debt or obligation owed by the Cuculichs. In support of the dismissal of count III, the defendants argued that "[a]n agent is not liable for wrongfully interfering with its principal's contract since the acts of the agent are imputed to the principal."

In its memorandum in opposition to the defendants' motion to dismiss, Storm addressed the merits of the motion as it related to counts I, II and IV of the complaint. Storm argued that dismissal of count III was premature prior to discovery and objected to the defendants' failure to specify whether they sought dismissal of counts I, II and IV under section 2-615 (735 ILCS 5/2-615 (West 1996)) or section 2-619 (735 ILCS 5/2-619 (West 1996)) of the Code.

The trial court entered a "Final Judgment Order," granting the defendants' motion to dismiss. Thereafter, Storm filed a timely notice of appeal, invoking our jurisdiction under Supreme Court Rule 301 (155 Ill.2d R. 301).

Section 2-619.1 of the Code is a procedural statute which allows a litigant to combine a section 2-615 motion to dismiss and a section 2-619 motion for involuntary dismissal in one pleading. 735 ILCS 5/2-619.1 (West 1996). However, this statute is not a legislative authorization for hybrid motion practice. Section 2-619.1 specifically provides that a combined motion shall be divided into parts and each part shall be limited to and specify a single section of the Code under which relief is sought. 735 ILCS 5/2-619.1 (West 1996). Meticulous practice dictates that the movants clearly state the section of the Code under which a motion to dismiss is brought. Illinois Graphics Co. v. Nickum, 159 Ill.2d 469, 484, 203 Ill.Dec. 463, 639 N.E.2d 1282 (1994).

Other than in part III of their motion, which is directed to count III of Storm's complaint, the defendants here failed to specify whether they sought relief under section 2-615 or section 2-619 of the Code. While failure to properly label a motion to dismiss is not a pleading practice which should be encouraged, reversal for such a deficiency is appropriate only when prejudice to the nonmovant results. Illinois Graphics Co., 159 Ill.2d at 484, 203 Ill.Dec. 463, 639 N.E.2d 1282. In reviewing the propriety of a dismissal resulting from an undesignated motion, we will examine the grounds for the motion, the relief requested and the treatment of the motion below to determine whether the motion is properly classified as one brought under section 2-615 or section 2-619. Illinois Graphics Co., 159 Ill.2d at 484, 203 Ill.Dec. 463, 639 N.E.2d 1282. Where, as in this case, the trial court fails to specify the grounds upon which it relied in granting a motion to dismiss, we will presume it was upon one of the grounds urged by the defendant. Zielinski v. Miller, 277 Ill.App.3d 735, 739, 214 Ill.Dec. 340, 660 N.E.2d 1289 (1995).

A section 2-615 motion attacks the sufficiency of a complaint and raises the question of whether it states a cause of action upon which relief can be granted. Burdinie v. Village of Glendale Heights, 139 Ill.2d 501, 505, 152 Ill.Dec. 121, 565 N.E.2d 654 (1990); Janes v. First Federal Savings & Loan Ass'n, 57 Ill.2d 398, 406, 312 N.E.2d 605 (1974). When ruling on a section 2-615 motion, the court may only consider the facts apparent from the face of the complaint, matters of which the court may take judicial notice, and judicial admissions in the record. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill.2d 110, 115, 214 Ill.Dec. 156, 660 N.E.2d 863 (1995).

A section 2-619 motion raises certain defects or defenses and poses the question of whether the defendant is entitled to judgment as a matter of law. Illinois Graphics Co., 159 Ill.2d at 485, 494, 203 Ill.Dec. 463, 639 N.E.2d 1282. If the grounds for such a motion do not appear on the face of the complaint, the motion must be supported by affidavit. 735 ILCS 5/2-619(a) (West 1996). When, however, the only grounds for a section 2-619 motion appear on the face of the complaint, the motion falls "within the area of confluence" between section 2-615 and section 2-619 (Illinois Graphics Co., 159 Ill.2d at 486, 203 Ill.Dec. 463, 639 N.E.2d 1282), and the appropriate method for reaching the defect is a section 2-615 motion (Rowan v. Novotny, 157 Ill.App.3d 691, 693-94, 110 Ill.Dec. 80, 510 N.E.2d 1111 (1987); Ill.Ann.Stat., ch. 110, par. 2-619, Historical & Practice Notes, at 662 (Smith-Hurd 1983)).

In this case, the defendants supported their combined motion with an affidavit attesting to matters of record in the Class Action. However, we deem that affidavit to be surplusage as everything contained therein is the proper subject of judicial notice. See People v. Jackson, 182 Ill.2d 30, 66, 230 Ill.Dec. 901, 695 N.E.2d 391 (1998).

In ruling on a motion to dismiss under either section 2-615 or section 2-619 of the Code, the court must accept all well-pled facts in the complaint as true and draw all reasonable inferences from those facts in favor of the plaintiff. See Miner v. Gillette Co., 87 Ill.2d 7, 19, 56 Ill.Dec. 886, 428 N.E.2d 478 (1981); Your Style Publications, Inc. v. Mid Town Bank & Trust Co., 150 Ill.App.3d 421, 424, 103 Ill.Dec. 488, 501 N.E.2d 805 (1986); Holubek v. City of Chicago, 146 Ill.App.3d 815, 817, 100 Ill.Dec. 370, 497 N.E.2d 348 (1986). Because the resolution of either motion involves only a question of law, our review is de novo. Stephen L. Winternitz, Inc. v. National Bank of Monmouth, 289 Ill.App.3d 753, 755, 225 Ill.Dec. 324, 683 N.E.2d 492 (1997). Further, since, in support of their motion to dismiss counts I, II and IV, the defendants relied on nothing other than the facts alleged in Storm's complaint and matters of which judicial notice can be taken, we find that Storm suffered no prejudice by reason of the defendants' failure to properly designate the section of the Code under which the dismissal of these counts was sought. Consequently, we...