Lavite v. Dunstan
No. 5-15-0401
Appellate Court of Illinois, Fifth District
August 5, 2016
2016 IL App (5th) 150401
Illinois Official Reports
District & No. Fifth District Docket No. 5-15-0401
Filed August 5, 2016
Decision Under Review Appeal from the Circuit Court of Madison County, No. 15-MR-145; the Hon. Stephen A. Stobbs, Judge, presiding.
Judgment Affirmed in part, vacated in part, and remanded with instructions.
Counsel on Appeal Thomas W. Burkart and Karen D. Burkart, both of Burkart Law Offices, of Hamel, for appellant.
John L. Gilbert and Timothy C. Sansone, both of Sandberg, Phoenix & von Gontard, P.C., of St. Louis, Missouri, for appellees Alan J. Dunstan, Madison County Board, and Joseph D. Parente.
Heidi L. Eckert, of Lowenbaum Law, of Clayton, Missouri, for appellee John D. Lakin.
OPINION
¶ 1 This appeal is brought by Bradley A. Lavite, in his capacity as superintendent of the Veterans Assistance Commission of Madison County, Illinois, from an order dismissing his three-count complaint with prejudice. Lavite filed an action against the named defendants for a writ of mandamus, claiming, in count I, that the defendants had no authority to keep him from entering his office located in the Madison County Administration building. In count II, Lavite requested that the Madison County Board issue checks for his salary as superintendent of the Veterans Assistance Commission of Madison County, Illinois. Count III sought payment of the attorney fee invoices submitted for Lavite‘s legal representation.
FACTS
¶ 3 This litigation arises under various provisions of the Military Veterans Assistance Act (Act) (
¶ 4 In order to administer the assistance as mandated, the Act authorizes the organization of a central assistance committee in counties where there are more than two posts, camps, chapters, or detachments of military veterans. This committee is known as the Veterans Assistance Commission (VAC) for the county involved.
¶ 5 The Act also designates an individual, referred to as the superintendent, to act on behalf of the VAC. Pursuant to section 10 of the Act, “[t]he executive powers of the commission shall be vested in a superintendent elected by the commission from among those who served in the armed forces of the United States.”
¶ 6 Under the circumstances herein, the Madison County Board (Board) is the unit of government responsible for providing such sums of money as may be “just and necessary” to carry out the mandate of the Act.
¶ 7 The Act further provides that in addition to those sums appropriated for the aid to veterans, the VAC shall recommend to the county board the necessary amounts of additional monies needed to properly compensate the VAC officers and employees required to administer the assistance.
¶ 8 The Act also requires that the Board provide the Madison VAC with an office and all necessary supplies.
“The superintendent, designated Superintendent of Veterans Assistance of the county, shall, under the direction of the commission, have charge of and maintain an office in the county building or other central location, to be used solely by the commission for carrying on its assistance work. The county shall provide the office and furnish all necessary supplies, including telephone, printing, stationery and postage therefor.”
330 ILCS 45/10 (West 2014) .
There is no dispute that as of March 12, 2015, the plaintiff, Bradley A. Lavite, had been serving as the duly elected superintendent of the Madison VAC. It is also undisputed that as of that date, the Board had designated an office for the Madison VAC in the Madison County Administration building.
¶ 9 On June 12, 2015, Lavite filed a verified, three-count complaint in mandamus. He filed the cause of action in his capacity as the superintendent of the Madison VAC. He did not include the Madison VAC as a named plaintiff or a nominal party to the proceeding. Lavite named as defendants Alan J. Dunstan, chairman of the Madison County Board; Joseph D. Parente, county administrator of Madison County; the Madison County Board; and John D. Lakin, sheriff of Madison County.
¶ 10 In count I of his complaint, Lavite sought a writ ordering the defendants to allow him access to the Madison VAC office located in the administration building. In particular, Lavite alleged that on March 12, 2015, he experienced a medical emergency requiring his hospitalization at the St. Louis Veteran‘s Administration Hospital in Jefferson Barracks, Missouri. He was admitted under the medical care of Dr. Jane Loitman, a psychiatrist with whom he had been treating for some period of time. Several days later, on March 18, 2015, Dr. Loitman issued a letter indicating that Lavite could return to work on March 23, 2015, without restrictions. A copy of Dr. Loitman‘s letter was attached to the plaintiff‘s complaint as exhibit B.
¶ 12 In count II, Lavite sought payment of his superintendent‘s salary, alleging that the defendants had advised they would not process the payroll requests for his salary. In count III, Lavite alleged that the Madison VAC had authorized the hiring of an attorney to represent Lavite and that the Board had refused payment of the attorney fee invoices. The Madison VAC resolution to hire an attorney for Lavite, dated April 10, 2015, was attached to Lavite‘s complaint as exhibit E. Therefore, Lavite sought a writ requiring the Board to pay the attorney fee bill from the Madison VAC funds.
¶ 13 Counsel for the defendants filed a motion to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (
¶ 14 With regard to count II, the defendants argued that payment of Lavite‘s salary was determined by the Madison VAC, not the Board. Attached to the defendants’ motion to dismiss was an affidavit, executed by Parente, which indicated, “The County has not and will not fail or refuse to pay Plaintiff‘s salary so long as the Veteran‘s Assistance Commission has sufficient funds to pay the Superintendent‘s salary and forwards a proper payroll request to the County.” In light of the fact that the defendants conceded that Lavite would continue to receive his salary, the defendants claimed count II was moot, and should be dismissed.
¶ 15 Finally, as to count III, the defendants first claimed that Lavite did not have standing to raise the issue regarding payment of attorney fees, as that claim belonged solely to the Madison VAC, which had not been named as a party to the action. The defendants admitted, however, that the Madison VAC could pay its attorney fees “under proper circumstances.” Citing section 9 of the Act (
¶ 17 On August 26, 2015, the court held a hearing on the defendants’ motion to dismiss. At the conclusion of the hearing, the court took the matter under advisement. On September 1, 2015, the trial court issued an order that dismissed all three counts of Lavite‘s complaint with prejudice. This timely appeal followed.
ANALYSIS
¶ 19 On appeal, Lavite asserts that the court erred in dismissing his complaint with prejudice. Before we address the merits of this appeal, we would be remiss if we did not point out the manifest disregard by the defendants for the statutory requirements set forth in section 2-619.1 of the Code. As noted previously, the defendants simply asked the court to dismiss the plaintiff‘s complaint pursuant to sections 2-615 and 2-619 of the Code (
¶ 20 Section 2-619.1 of the Code is the procedural mechanism that allows for combined motions pursuant to section 2-615, section 2-619, and section 2-1005.
¶ 21 Counsel who fail to comply with the procedural rules regarding combined motions do so at their own peril. Trial courts should not consider a combined motion under section 2-619.1 if it does not adhere to these statutory requirements. Reynolds, 2013 IL App (4th) 120139, ¶ 21. This is because such motions create unnecessary complications and confusion. Thus, when faced with a motion that does not comport with section 2-619.1, trial courts should sua sponte deny the motion and provide the moving party with an opportunity to file a motion that meets the statutory requirements. Reynolds, 2013 IL App (4th) 120139, ¶ 21. Alternatively, trial courts could allow the moving party to file separate
¶ 22 In this case, the plaintiff recognized that the defendants had filed a combined motion to dismiss that was not in compliance with section 2-619.1 but did not ask that the pleading be stricken. Instead, the parties proceeded to argue the merits of the motion, with the defendants offering their more detailed explanations during their oral argument before the trial court. During the hearing on August 26, 2015, the defendants claimed that count I of the plaintiff‘s complaint should be dismissed pursuant to section 2-615 and counts II and III of the complaint should be dismissed pursuant to section 2-619. Thereafter, on September 1, 2015, the trial court dismissed the plaintiff‘s complaint without addressing any particular section of the Code.
¶ 23 As a result of this ruling, our task has been greatly complicated by the circuit court‘s failure to articulate the specific sections relied upon in its dismissal of the plaintiff‘s complaint. Notions of fundamental fairness are better served by following the law and our applicable rules. There is no doubt that the lack of clarity in the trial court‘s ruling resulted because of the defendants’ failure to follow the procedural requirements of section 2-619.1. Nevertheless, we begin with the trial court‘s order of September 1, 2015, and address each of its rulings in turn.
¶ 24 With regard to count I of the plaintiff‘s complaint, the trial court found that Lavite had failed to name a necessary party, namely the Madison VAC. Count I requested that the court issue a writ requiring the defendants to allow Lavite access to the Madison VAC office located in the administration building. With regard to necessary parties, “Illinois law does not have any one express provision regulating who must be joined as a party. Instead, several provisions of the Code of Civil Procedure affect the common-law rule relating to the joinder of parties.” Safeco Insurance Co. of Illinois v. Treinis, 238 Ill. App. 3d 541, 544, 606 N.E.2d 379, 380 (1992). Our courts have analyzed whether a party is “necessary” by looking at the various reasons alleged for joinder. Consequently, the courts have arrived at three reasons to conclude a party is “necessary,” such that the lawsuit should not proceed in the party‘s absence: “(1) to protect an interest that the absentee has in the subject matter of the controversy which would be materially affected by a judgment entered in his absence; (2) to protect the interests of those who are before the court; or (3) to enable the court to make a complete determination of the controversy.” Holzer v. Motorola Lighting, Inc., 295 Ill. App. 3d 963, 970, 693 N.E.2d 446, 452 (1998).
¶ 25 As noted previously, section 10 of the Act vests the executive powers of the commission in the superintendent elected by the commission. That superintendent “shall, under the direction of the commission, have charge of and maintain an office in the county building or other central location, to be used solely by the commission for carrying on its assistance work.”
¶ 26 Even if the Madison VAC were considered a necessary party to enable the court to make a complete determination of the controversy, the Code has several options available, short of dismissal. More particularly, section 2-406(a) of the Code provides that “[i]f a complete
¶ 27 The second basis given by the trial court for dismissal of count I was in two parts. First, the court held that Lavite had no standing to seek a writ of mandamus. Second, the court determined that the actions taken by the defendants were discretionary judgments, relying upon Hazen v. County of Peoria, 138 Ill. App. 3d 836, 485 N.E.2d 1325 (1985).
¶ 28 We first examine the issue of standing. Under section 2-619(a)(2), a defendant may move for an involuntary dismissal where the plaintiff does not have legal capacity to sue, or the defendant does not have the legal capacity to be sued.
¶ 29 In this case, the trial court‘s dismissal based on standing highlights the conundrum caused by the defendants’ failure to comply with the statutory requirements for filing combined motions to dismiss. During the August 26 hearing, counsel for the defendants argued that section 2-615 applied to count I. Standing, however, is an issue raised pursuant to section 2-619. Regardless of the defendants’ failure to recognize this important distinction, we reiterate that the Act provides that “[t]he executive powers of the commission shall be vested in a superintendent,” and it is the superintendent who is authorized to bring an action for mandamus where a county board fails to appropriate the just and necessary sums needed to provide veteran assistance under the Act.
¶ 30 In Ickes v. Board of Supervisors, the superintendent of the county veterans commission and two tax payers filed an action for mandamus against the county board, claiming the county had not appropriated the just and necessary sums to fund the benefits needed to assist veterans pursuant to the Act. Ickes v. Board of Supervisors, 415 Ill. 557, 114 N.E.2d 669 (1953). In Makowicz v. County of Macon, the superintendent of the county veterans commission brought a complaint for declaratory judgment on behalf of the county VAC, claiming that the authority to appoint and discharge employees of the commission was not held by the county board. Makowicz v. County of Macon, 78 Ill. 2d 308, 399 N.E.2d 1302 (1980). In each of these cases, the commission was not a named plaintiff, and our supreme court proceeded to determine the
¶ 31 Next, the trial court determined that count I sought a writ of mandamus “against the defendants, public officials, who made discretionary judgments regarding the security of County facilities, employees and members of the public using same.” Once again, it is difficult for us to discern whether the court dismissed Lavite‘s complaint because the plaintiff failed to state a cause of action upon which relief could be granted—thus involving section 2-615 of the Code—or whether the dismissal was based on an affirmative matter under section 2-619(a)(9)—namely, the fact that Parente was performing a discretionary act, thereby precluding an action for mandamus.
¶ 32 We begin our analysis with mandamus, generally. Mandamus is an extraordinary remedy to enforce, as a matter of public right, “the performance of official duties by a public officer where no exercise of discretion on his part is involved.” Madden v. Cronson, 114 Ill. 2d 504, 514, 501 N.E.2d 1267, 1272 (1986). “The writ provides affirmative rather than prohibitory relief [citation] and can be used to compel the undoing of an act [citation].” Noyola v. Board of Education, 179 Ill. 2d 121, 133, 688 N.E.2d 81, 86 (1997). Mandamus will lie where, as alleged here, public officials have failed or refused to comply with requirements imposed by statute, provided that the requirements for that writ have been satisfied. Noyola, 179 Ill. 2d at 132.
¶ 33 Article 14 of the Code governs the procedures related to the filing of an action in mandamus.
¶ 34 Despite the extraordinary remedy allowed by such a writ, mandamus proceedings are governed by the same pleading rules that apply to actions at law. Noyola, 179 Ill. 2d at 133. For a complaint seeking mandamus to withstand a challenge to its legal sufficiency, it must allege facts that establish a clear right to the relief requested, a clear duty of the respondent to act, and clear authority in the respondent to comply with the writ. Noyola, 179 Ill. 2d at 133. The defendants’ motion to dismiss merely concluded, as to
¶ 35 Therefore, we first consider whether the facts set forth in Lavite‘s complaint are sufficient to establish a cause of action at law. The plaintiff alleged that he suffered a medical emergency that required his hospitalization. He also alleged that Parente is the county administrator of Madison County, Illinois. In his complaint, Lavite set forth the obligation of the County to provide the Madison VAC with an office under section 10 of the Act (
¶ 36 The defendants did not answer the complaint, opting instead to file a motion to dismiss. Nevertheless, during oral argument, there was a great deal of discussion regarding the reasoning used by Parente in denying Lavite access to the administration building. The defendants excused Parente‘s conduct based upon his obligation to protect the public. The plaintiff‘s complaint, however, said nothing about potential harm to the public. In fact, the pleading is devoid of any mention that Parente‘s actions were taken for the “security of County facilities,” as indicated by the court‘s order. The allegations in the pleadings are the only matters that the court is to consider in ruling on a section 2-615 motion. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 485, 639 N.E.2d 1282, 1289 (1994). The trial court obviously considered facts outside of the plaintiff‘s pleading, which was improper under a section 2-615 motion to dismiss. Therefore, having reviewed the allegations of Lavite‘s complaint in the light most favorable to plaintiff, we believe the court erred in dismissing count I under section 2-615, where it considered factual matters outside of the pleadings.
¶ 37 We next consider whether the trial court properly dismissed count I of Lavite‘s complaint pursuant to section 2-619 (
¶ 38 In ruling that the actions of the defendants were discretionary, the court cited Hazen v. County of Peoria, 138 Ill. App. 3d 836, 485 N.E.2d 1325 (1985). In Hazen, the Veterans Assistance Commission of Peoria County (Peoria VAC) and its superintendent filed a petition for mandamus and injunctions to compel the Peoria County Board to impose a tax rate that would raise the funds requested by the Peoria VAC to carry out the purposes of the Act. The Peoria County Board‘s authorization of a lower tax rate meant the Peoria VAC was still eligible to qualify for state funds that would supplement the local funds for public aid purposes. The county board directed the Peoria VAC to comply with the rules and regulations of the Department of Public Aid so that the remainder of the funds needed by the Peoria VAC could be obtained from the state. Hazen, 138 Ill. App. 3d at 838-39. The defendants counterclaimed for a declaratory judgment and for an injunction or a writ of mandamus to require the plaintiffs to comply with the Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, ¶ 12-21.13). In Hazen, the facts were not in dispute. The issue was whether the Peoria County Board‘s conduct constituted a discretionary act, thereby precluding an action for mandamus, as it is a well-settled rule of law that mandamus will not lie to compel the performance of an official duty in a particular manner where the exercise of judgment or discretion is involved. Hazen, 138 Ill. App. 3d at 839. After a hearing involving the merits of the case, the court granted the defendants’ petition for mandamus and for an injunction. There was no discussion regarding “necessary parties” or “standing.” Rather, Hazen is a case where the court decided the issues raised by the pleadings and the evidence and entered judgment.
¶ 39 The procedural posture in Hazen is far different than the status of the pleadings before the trial court in this case. In the case sub judice, the defendants did not file responsive pleadings. Instead, the defendants filed a motion to dismiss the plaintiff‘s complaint for failure to state a claim upon which relief could be granted. The defendants attached to their motion an affidavit from Parente, which said nothing about the need to act to protect the public safety. Instead, during argument on their motion, the defendants offered only their argument that the action taken by Parente was a discretionary act. Not a scintilla of credible evidence was proffered before the trial court in the form required by the Code. Indeed, Parente may have had a reason to keep Lavite from entering the administration building, but this was clearly a question of fact not properly raised by the defendants’ motion. There is nothing in the record to indicate that Parente‘s unilateral denial of Lavite‘s access to the administration building or the Madison VAC office was performed for any reason other than that alleged by plaintiff in his complaint.
¶ 40 Having fully considered the potential bases for the dismissal of count I pursuant to sections 2-615 and 2-619, we vacate the trial court‘s order in its entirety and remand to the trial court with instructions to deny the defendants’ motion to dismiss.
¶ 41 We next address the court‘s order dismissing count II. In count II, Lavite alleged that the defendants advised that they would not process payroll requests for the superintendent‘s salary. Lavite sought an order of mandamus, directing the defendants to process the Madison VAC‘s payroll requests covering his salary as the superintendent. Section 10 of the Act directs the county board to appropriate such sums, upon recommendation of the VAC and as approved by the county board, to properly compensate the officers and employees who are required to administer the assistance provided for in the Act.
“In Count II of Plaintiff‘s Complaint Plaintiff states that Defendants have advised that they will not process payroll requests for the Superintendent‘s salary. This allegation is false. The County has not and will not fail or refuse to process a payroll request from the Veterans Assistance Commission to the County to pay Plaintiff‘s salary so long as the Veterans Assistance Commission has sufficient funds to pay the Superintendent‘s salary and forwards a proper payroll request to the County. The County pays Plaintiff‘s salary out of the Veterans Assistance Commission funds appropriated by the Madison County Board.”
¶ 42 According to the affidavit, the defendants have affirmatively stated that they have not, and will not, refuse to process a payroll request. Thus, there appears to be no actual controversy between the parties at this time as to count II. After reviewing the record, we find that count II was brought prematurely, as it does not present a concrete dispute requiring a judicial decision. We affirm the trial court‘s decision to dismiss count II. Nothing, however, would preclude Lavite from pursuing a remedy should an actual controversy arise with regard to his compensation.
¶ 43 Finally, we direct our attention to count III, wherein the plaintiff sought payment of attorney fees from the Madison VAC funds. The trial court identified several reasons for its dismissal of this count with prejudice. First, as with count I, the trial court held that the Madison VAC was a necessary party. In addition to the reasoning previously set forth herein, it is noteworthy that attached to the plaintiff‘s complaint, as exhibit E, was a “Resolution To Hire Attorney,” dated April 10, 2015. This resolution authorized the hiring of an attorney to represent Lavite and indicated as follows:
“NOW THEREFORE BE IT RESOLVED, that the President is authorized to execute the attached retainer agreement with attorney Thomas W. Burkart Law Office to represent the interests of the Commission and its Superintendent in all matters addressed in letters from Joseph Parente dated March 6 and April 6, 2015 and the complaint that accompanied the latter.”
Defendants’ argument that Lavite lacked standing was nonsensical, as they claimed the plaintiff “did not have a real interest in the funding of the VAC.” That was not the issue. As the executive officer, Lavite had the authority to represent the Madison VAC in its efforts to have
¶ 44 The court also dismissed count III, holding that the plaintiff had no standing to seek mandamus under the Act for payment of attorney fees “where the VAC must first submit the reimbursement request to the County for its review and approval.” In reaching its decision, the circuit court relied upon Veterans Assistance Comm‘n v. County Board, 2015 IL App (3d) 130969. In light of our prior discussion regarding the issue of standing and the aforementioned resolution attached to Lavite‘s complaint, we find that Lavite has standing to bring this claim on behalf of the Madison VAC for payment of attorney fees.
¶ 45 Finally, we consider whether the Madison VAC was entitled to have its attorney fees paid from the VAC funds that had already been appropriated, or whether the VAC was subject to the County ordinances applicable to the expenditure of monies in excess of $5000 and/or the competitive purchasing ordinance. The defendants, once again, alleged an affirmative matter in their attempt to dismiss count III. Therefore, we review the court‘s dismissal pursuant to section 2-619(a)(9).
¶ 46 In support of this argument, the defendants rely upon Veterans Assistance Comm‘n v. County Board, 274 Ill. App. 3d 32, 654 N.E.2d 219 (1995). In that case, the VAC suggested benefit amounts for veterans at an amount different than those recommended by the county board. Veterans Assistance Comm‘n, 274 Ill. App. 3d at 34. Additionally, the VAC approved an annual superintendent salary of $46,000, but the board appropriated only $23,700. Veterans Assistance Comm‘n, 274 Ill. App. 3d at 34. The county executive also signed an order appointing the county auditor to oversee the distribution of money and supplies to veterans, and then the board adopted a resolution that purported to amend parts of the VAC‘s handbook that included the standards for determining need, veterans’ benefit levels, and VAC rules. Veterans Assistance Comm‘n, 274 Ill. App. 3d at 34. The trial court ruled in favor of the county. Veterans Assistance Comm‘n, 274 Ill. App. 3d at 34. The appellate court reversed and remanded. In doing so, the court held that section 9 of the Act “does not empower the board to create rules that unilaterally alter veterans’ benefit levels, VAC salary levels or VAC rules.” Veterans Assistance Comm‘n, 274 Ill. App. 3d at 36. The court further explained, “[h]ere, the board seeks to reduce benefits to veterans in need. If we were to adopt defendants’ assertion that section 9 gives the board supremacy over the VAC, we would be granting the board the power to thwart the very purpose of the Act. This we cannot do.” Veterans Assistance Comm‘n, 274 Ill. App. 3d at 37.
¶ 47 Similarly, in this case, the Board seeks to impose oversight on the Madison VAC by imposing its ordinances, which directly affect the operation of the commission. As in Veterans Assistance Comm‘n v. County Board, this it cannot do. Therefore, we vacate subparagraph b of the trial court‘s order relating to count III of Lavite‘s complaint, as the County had already appropriated the funds for the Madison VAC and had no further right to impose its ordinances on the Madison VAC in the selection of an attorney for Lavite.
¶ 48 Moreover, the defendants conceded that “Illinois law is clear that attorney‘s fees for legal representation of a County Veterans Assistance Commission must be paid from the Veterans Assistance Commission funds, not from the general fund of the County.” Here, the plaintiff‘s
¶ 49 In Hazen, the VAC requested that its attorney be paid from county funds. There, the court indicated that “the attorney for the VAC is not entitled to compensation from general county funds but rather must be paid from VAC funds. This holding is consistent with the decision of the Supreme Court of Illinois in Makowicz v. County of Macon (1980), 78 Ill. 2d 308, 399 N.E.2d 1302, that the superintendent and other VAC employees are employees of the VAC and not of the county board.” Hazen, 138 Ill. App. 3d at 842.
¶ 50 Unlike the controversy in Hazen, the defendants concede their obligation to pay, so long as the VAC has the necessary funding, and have only objected based on the applicability of the ordinances. Therefore, we find there is no genuine issue of fact as to the payment of attorney fees. Thus, the court erred in dismissing count III. Accordingly, we vacate that order and remand to the circuit court with instructions to deny the defendants’ motion to dismiss count III.
CONCLUSION
¶ 52 In conclusion, as to count I, we vacate the trial court‘s order in its entirety and remand to the trial court with instructions to deny the defendants’ motion to dismiss. As to count II, the circuit court‘s order of dismissal is affirmed, as the claim was premature. As to count III, we vacate the trial court‘s order and remand to the trial court with instructions to enter an order denying the defendants’ motion to dismiss.
¶ 53 Affirmed in part, vacated in part, and remanded with instructions.