2021 IL App (1st) 182694
Ill. App. Ct.2021Background
- May 24, 2016: Khan rescued a cat found near his home, the cat received veterinary care and was transferred to Fur Keeps Animal Rescue.
- Khan alleges he expressed interest in adopting the cat and that Fur Keeps employees (including Gloria Divierto and volunteer Donna Leetz) promised to notify him when the cat became available; he was never contacted and later told he could not adopt or foster from Fur Keeps.
- Khan filed a third amended complaint (July 22, 2018) asserting two counts: (1) breach of an oral contract and (2) promissory estoppel; he sought the ability to adopt the cat or other relief.
- Fur Keeps moved to dismiss under 735 ILCS 5/2-615 (failure to state a claim) and 2-619 (affirmative defenses including lack of standing and that the volunteer acted personally); the court granted 2-615 dismissal of the contract count but took evidence under 2-619 on the promissory estoppel claim.
- After an evidentiary hearing the trial court found no promise was made and dismissed the promissory estoppel count under section 2-619; Khan appealed.
- The appellate court affirmed the 2-615 dismissal of the breach claim but reversed the 2-619 dismissal of the promissory estoppel claim and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Khan stated a breach of oral contract under 2-615 | Rescue and transfer of the cat plus employees' promises created an enforceable oral contract | No offer/acceptance/consideration; Khan had no ownership or paid fees | Affirmed: complaint fails to allege consideration or bargained-for exchange; 2-615 dismissal proper |
| Whether promissory estoppel could be dismissed under 2-619 after an evidentiary hearing | Fur Keeps employees promised notification and Khan relied to his detriment | No promise was made; lack of standing; volunteer acted individually so Fur Keeps not liable | Reversed: trial court improperly resolved disputed facts via 2-619; dismissal on that ground was not appropriate and standing/wrong-party arguments were waived or not adjudicated; remand for further proceedings |
| Whether defendant could use section 2-619 to litigate agency/party-definition issues | Khan alleges employees/volunteers acted for Fur Keeps | Defendant contends volunteer acted privately and adoption occurred outside Fur Keeps | Held: defendant’s ‘‘wrong party’’/agency claim improperly raised under 2-619 (it merely refutes plaintiff’s allegations); issue waived on appeal |
Key Cases Cited
- Young v. Bryco Arms, 213 Ill. 2d 433 (2004) (standard for dismissal under section 2-615)
- Wakulich v. Mraz, 203 Ill. 2d 223 (2003) (court must construe complaint in plaintiff’s favor on 2-615)
- Vassilkovska v. Woodfield Nissan, Inc., 358 Ill. App. 3d 20 (2005) (consideration defined as bargained-for exchange)
- Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126 (7th Cir. 1997) (promise enforceable only with consideration)
- DeLuna v. Burciaga, 223 Ill. 2d 49 (2006) (2-619 admits legal sufficiency but asserts affirmative matter defeating claim)
- Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558 (2006) (de novo review of 2-619 dismissals)
- Glisson v. City of Marion, 188 Ill. 2d 211 (1999) (lack of standing may be an affirmative matter under section 2-619)
- Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217 (2010) (burden to plead and prove affirmative defenses like lack of standing)
- A.F.P. Enterprises, Inc. v. Crescent Park, Inc., 243 Ill. App. 3d 905 (1993) (2-619 improper when defendant merely disputes plaintiff’s ultimate factual allegations)
- River Plaza Homeowner’s Ass’n v. Healey, 389 Ill. App. 3d 268 (2009) (standing is a proper affirmative matter under section 2-619)