delivered the opinion of the court:
Plaintiff, J.O. Philip Lindahl, sought to recover compensation from defendant, the City of Des Plaines, for his work in addition to his normal required hours. Plaintiff appeals the order of the circuit court of Cook County dismissing his claims pursuant to section 2— 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619).
On appeal, plaintiff contends that the trial court erred in dismissing his claims with prejudice and denying his motion to reconsider. The following issues are before this court: (1) whether plaintiff’s brief should be stricken; (2) whether plaintiff’s recovery is barred by the provisions of section 3 — 11—17 of the Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—17); (3) whether plaintiff met his burden of pleading estoppel; and (4) whether defendant’s affidavits provided a basis for dismissal.
We affirm.
Background
Plaintiff brought this action against his former employer, the City of Des Plaines, for breach of oral contracts, breach of contract implied in fact, and breach of contract implied in law (quantum meruit).
Thereafter, defendant filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) based on the statute of limitations, a motion to strike and dismiss pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619), and a motion to strike pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Defendant filed a memorandum in support of its motions.
Defendant filed relevant ordinances, appropriations, time sheets, and other materials in response to plaintiff’s production requests which were incorporated by reference into defendant’s section 2 — 619 motion, pleadings, and an affidavit. The affidavit was obtained from Ms. Donna McAllister, the city clerk for the City of Des Plaines on June 29, 1987. The affidavit consisted of the following statement:
“I, Donna McAllister, *** have reviewed all books and records for the period on 1972 to the present, and find that the City Council of the City of Des Plaines has passed no ordinances or resolutions relating to any oral or implied contract regarding J.O. PHILIP LINDAHL as Environmental Control Officer or Code Enforcement Officer.”
On the whole, the affidavit, ordinances, appropriations, and time sheets established that plaintiff was a salaried civil service employee of the City of Des Plaines, and that his employment was authorized by ordinances and appropriations from 1972 to 1985. The City Code of Des Plaines and sections 1 — 15—4, 1 — 15—7, and 1 — 15—8 of the compensation plan and position classification from 1972 through 1985 provided that plaintiff would not be eligible for “overtime” compensatory pay, but could obtain compensatory time off at the discretion of the head of his department. Later, during oral argument before this court, defendant admitted that it had a contract with plaintiff.
In lieu of depositions, plaintiff was allowed to interview employees of the City of Des Plaines and review any municipal ordinances regarding the allegations raised in the complaint. However, plaintiff chose not to conduct the interviews.
Plaintiff was granted leave to file his first amended complaint on February 23, 1988. The court allowed defendant’s motions to dismiss to stand as to plaintiff’s amended complaint. Plaintiff’s first amended complaint alleged that plaintiff was hired by defendant on June 1, 1972, as an environmental officer and was later employed by defendant from June 1, 1972, to December 31, 1985, as an environmental control officer and a code enforcement officer.
The complaint further alleged that plaintiff entered into an oral contract with defendant whereby plaintiff’s work week consisted of 37.5 hours for which he was to be paid an annual salary. Any hours worked in excess of the 37.5 weekly hours would constitute compensatory time, and that plaintiff, subject to the consent of his supervisor, could reimburse himself for compensatory time by taking time off from work equal to the accumulated compensatory time. The complaint also alleged that in the alternative, plaintiff agreed to accept payment for the accrued compensatory time upon the termination of his employment with defendant. The amended complaint further alleged that defendant executed certain documents ratifying and authorizing the terms of the agreement.
The first count of the amended complaint alleged that defendant breached the aforementioned contract. The second count of the amended complaint alleged that defendant, in breaching the contract, violated the Wage Payment and Collection Act (Ill. Rev. Stat. 1987, ch. 48, par. 39M — 1 et seq.). The third count of the complaint alleged that defendant breached the contract implied in fact. The final count of the complaint alleged that defendant’s action was a breach of contract implied in law (quantum meruit) based upon the fact that defendant accepted the benefit of plaintiff’s services without giving plaintiff just compensation, whereby defendant was unjustly enriched. Plaintiff failed to cite any specific ordinance or statutory authority for any of the terms of the alleged contract.
Plaintiff then filed a response to defendant’s motion to strike and dismiss on March 25, 1988. Defendant subsequently filed a reply to plaintiff’s response, attaching various affidavits.
The affidavits were obtained from Ms. Arlene Donahue, the director of human resources and services for the City of Des Plaines; Ms. Donna McAllister, the city clerk of the City of Des Plaines; Mr. Gregory Peters, the comptroller of the City of Des Plaines; and Mr. Duane Bleitz, the former comptroller of the City of Des Plaines. Ms. Arlene Donahue made the following statement by affidavit:
“I, ARLENE DONAHUE, being first duly sworn upon oath
depose and state the following:
* **
■ 2. *** I have personal knowledge of the City employee compensation records (salary records) of all the employees and the Position Classification and Compensation Plans for the City of Des Plaines.
3. I have reviewed the City Code of the City of Des Plaines and the Compensation Plan and Position Classification, speeifically Sections 1 — 15—4, 1 — 15—7 and 1 — 15—8, and the salary positions contained in Section 1 — 15—4 as they applied to Civil Service employees; specifically for the years 1972 through 1985, for PHILIP LINDAHL and his positions of Environmental Control Officer and Code Enforcement Officer.
4. *** [A]s to the issue of Compensatory Time raised by PHILIP LINDAHL’S Complaint and Amended Complaint, PHILIP LINDAHL *** may have been only entitled to compensatory time, hour-for-hour, at the discretion of his department head, but was not entitled to any compensatory pay for the years 1972 through 1975 ***.
5. *** [T]his affidavit is made on affiant’s personal knowledge and, if sworn as a witness, I can and will testify competently to the facts hereinabove stated.”
Ms. Donna McAllister made the following statement by affidavit:
“I, DONNA McALLISTER, being first duly sworn upon
oath depose and state the following:
* * *
2. *** I reviewed all City Ordinances, appropriations, and contracts for the years 1972 through 1985, Position Classification and Compensation Ordinances for the years 1972 through 1985, *** and the City Job Evaluation Committee job descriptions and Certification of Civil Services status for PHILIP LINDAHL ***.
3. *** I have found no other appropriation ordinances, compensation ordinances, or contracts relative to PHILIP LINDAHL for the period 1972 through 1985.
4. *** [TJhis Affidavit is made on affiant’s personal knowledge and, if sworn as a witness, I can and will testify competently to the facts hereinabove stated.”
The affiants Gregory Peters and Duane Bleitz each tendered two separate affidavits. These affidavits are similar in content. In the first affidavit submitted by Mr. Peters and Mr. Bleitz, respectively, both affiants made the following statement:
“2. *** I have personal knowledge of the City employee compensation records (salary records of the employees and the Position Classification Plan and Compensation Plan for the City.
3. I have reviewed the City Code of the City of Des Plaines and the Compensation Plan and Position Classification, specifically Sections 1 — 15—4, 1 — 15—7, and 1 — 15—8, and the salary positions contained in Section 1 — 15—4 as they applied to Civil Service employees; specifically for the years 1972 through 1985, for PHILIP LINDAHL and his positions of Environmental Control Officer and Code Enforcement Officer.
4. *** [A]s to the issue of Compensatory Time raised by PHILIP LINDAHL’s Complaint and Amended Complaint, PHILIP LINDAHL *** [was probably] entitled to compensatory time, hour-for-hour, but was not entitled to any compensatory pay for the years 1972 through 1985 ***.
5. *** [T]his affidavit is made on affiant’s personal knowledge, and if sworn as a witness, I can and will testify to the facts herein above stated.”
In the second affidavits submitted by Mr. Peters and Mr. Bleitz, respectively, the affiants made the following identical statement:
“2. *** [F]or the years 1972 through 1975, the City of Des Plaines had no account entitled “Contingency Account” or “Interfund Account” but did have an account called “Salary Adjustment Account.” This account was used for the limited purpose of paying yearly salary step adjustments; and/or cost of living adjustments. This account was authorized for no other purpose and it has been used for no other purpose and it has been used for no other purpose for the years 1972 through 1985.
3. No other appropriation account existed for the purpose of paying compensatory pay to the position of Environmental Control Officer or Code Enforcement Officer, or specifically for PHILIP LINDAHL for the years 1972 through 1985.
4. *** [T]his affidavit is made on affiant’s personal knowledge and, if sworn as a witness, I can and will testify competently to the facts hereinabove stated.”
On August 18, 1988, the trial court granted defendant’s motion to dismiss, stating that it was based “specifically [upon] the provisions of chapter 24, section 3 — 11—17 of the Illinois Revised Statute.” The trial court also ruled with respect to the claim based upon section 3 — 11—17 that there was no evidence in the record of “any legal action taken by the City, through its corporate officers, that would support [the] alleged contract which the plaintiff claims [exists] in this case.” Finally, the trial judge stated that one “can’t have a contract with a municipality for the payment of money unless [there is an authorization by ordinance].” The court then gave plaintiff 30 days to file a motion to reconsider.
Plaintiff filed a motion to reconsider on September 20, 1988. Plaintiff filed a brief in support of his motion to reconsider citing Eertmoed v. City of Pekin (1980),
Opinion
I
Defendant first contends that plaintiff’s brief should be stricken because plaintiff’s brief fails to establish jurisdiction over this case pursuant to Illinois Supreme Court Rule 341(e)(4) (134 Ill. 2d R. 341(e)(4)). Defendant maintains that plaintiff failed to include a section entitled “Jurisdiction” and a statement of the jurisdictional basis of this appeal. Plaintiff, in reliance upon Illinois Supreme Court Rule 301, counterargues that his brief should not be stricken. 134 Ill. 2d R. 301.
Illinois Supreme Court Rule 341(e)(4) reads as follows:
“(e) The appellant’s brief shall contain the following parts in the order named:
* * *
(4) ***
(i) In a case appealed *** as a matter of right from the Appellate Court, a brief statement under the heading ‘Jurisdiction’ of the jurisdictional grounds for the appeal ***.” 134 Ill. 2dR. 341(e)(4)(i).
Illinois Supreme Court Rule 301 reads, in pertinent part, as follows:
“Every final judgment of a circuit court in a civil case is appealable as of right. The appeal is initiated by filing a notice of appeal. No other step is jurisdictional.” 134 Ill. 2d R. 301.
We find that plaintiff’s brief should not be stricken. Rather than setting forth a brief statement of the basis for this appeal under the heading “Jurisdiction,” plaintiff set forth a brief statement of the basis for this appeal under the heading “Nature of the Action.” Under this heading, plaintiff wrote the following statement: “Appeal from a Final Order of Dismissal pursuant to Section 2 — 619 of the Illinois Civil Practice Act dismissing employment contract claims against Plaintiff’s former employer, the Defendant, CITY OF DES PLAINES.” Appeals from final orders of dismissal are the proper basis for an appeal to the appellate court of Illinois pursuant to Rule 301. (134 Ill. 2d R. 301.) Therefore, plaintiff’s error was one of form and not of substance.
Plaintiff has asked this court for permission to correct this error. Plaintiff petitions this court instanter for leave to amend his brief to include the following language:
“JURISDICTION
This is an appeal from a Final Order of Dismissal pursuant to Section 2 — 619 of the Illinois Civil Practice Act dismissing employment contract claims against Plaintiff’s former employer, the Defendant CITY OF DES PLAINES.”
Accordingly, we grant plaintiff leave to amend his brief.
II
We now turn our attention to plaintiff’s claim that the trial court improperly dismissed this case and that his recovery is permitted under section 3 — 11—17 of the Municipal Code. (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—17.) Plaintiff also relies upon Westbrook v. Middlecoff (1901),
Defendant maintains that the trial court properly granted its motion to dismiss pursuant to section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) because a municipal employee is not entitled to any compensation or benefits absent an express authorization and appropriation by an ordinance approved by a majority vote of the city counsel pursuant to the Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—17). Defendant also relies upon May v. City of Chicago (1906),
Municipalities derive their governmental authority from the Constitution and statutes of the State of Illinois. The Municipal Code provides as follows:
“The corporate authorities of each municipality may pass all .ordinances and make all rules and regulations proper or necessary, to carry into effect the powers granted to municipalities ***.” Ill. Rev. Stat. 1987, ch. 24, par. 1 — 2—1.
The Municipal Code requires that an appropriation be made by the municipal corporate authorities before the municipality may enter into a contract with another party. Section 8 — 1—7, in relevant part, provides as follows:
“[N]° contract shall be made by the corporate authorities, or by any committee or member thereof, and no expense shall be incurred by any of the officers or departments of any municipality, whether the object of the expenditure has been ordered by the corporate authorities or not, unless an appropriation has been previously made concerning that contract or expense. Any contract made, or any expense otherwise incurred, in violation of the provisions of this section shall be null and void as to the municipality, and no money belonging thereto shall be paid on account thereof.” (El. Rev. Stat. 1987, ch. 24, par. 8— 1-7.)
(See also Selby v. Village of Winfield (1929),
“The passage of all ordinances for whatever purpose, and of any resolution or motion (1) to create any liability against a city or (2) for the expenditure or appropriation of its money, shall require the concurrence of a majority of all members then holding office on the city council, including the mayor, unless otherwise expressly provided by this Code or any other act governing the passage of any ordinance, resolution, or motion ***.” Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—17.
In addition, this court has found that “any contract made without a prior appropriation is null and void.” (Chicago Patrolmen’s Association v. City of Chicago (1974),
The Illinois Supreme Court has held that persons dealing with a municipal corporation are “charged with the knowledge of the limitations of the power of that corporation for any contract attempted to be entered into by any of its officials.” (May v. City of Chicago (1906),
The Illinois Supreme Court has decided several cases which are analogous to the case at bar. For example, in the case of May v. City of Chicago (1906),
In the similar case of Gathemann v. City of Chicago (1914),
Recently, in Chicago Patrolmen’s Association v. City of Chicago (1974),
Plaintiff relies upon Westbrook v. Middlecoff (1901),
In addition, plaintiff relies upon Eertmoed v. City of Pekin (1980),
Furthermore, we find plaintiff’s reliance upon County of Coles v. Goehring (1904),
In Goehring, Mr. Goehring brought an action of assumpsit against the County of Coles concerning a contract entered into between them in 1898 for the reconstruction and repair of the Coles County court house. The Coles County committee on grounds and buildings for the board of supervisors solicited bids for the repair work, and Mr. Goehring’s bid was accepted. “In December, 1898, a resolution was adopted by the board *** for repairing the court house, *** and the county clerk directed to draw and deliver *** an order [to Goehring] ***.” Goehring,
The McGovern case also involved a contractor and his action to recover for payment for services rendered. M.H. McGovern, as assignee of the M.H. McGovern Company, brought an action of assumpsit to recover compensation for work and materials furnished pursuant to a 'written contract entered into between the city and the McGovern Company to repair asphalt pavement. The McGovern Company made a bid for the construction work, and the mayor and the superintendent of streets accepted the bid. An appropriation bill was adopted in February of 1908 for the repair of streets. “It was clearly the intention of the city council, in the appropriation ordinance of February 21, 1908, to appropriate the license fees collected to the repair of streets, and this was what the statute provided should be done with such fees.” McGovern,
Similarly, in Great Lakes Dredge & Dock Co. v. City of Chicago (1933),
McGovern, Goehring, and Great Lakes Dredge & Dock Co. are distinguishable from the case at bar because defendants in those cases made legislative appropriations to pay the plaintiffs. In the instant case, defendant made no appropriation for “overtime” pay for plaintiff.
Plaintiff’s reliance upon these three cases is also inappropriate because construction contracts between a municipality and a contractor are unique and distinct from employment contracts between a municipal entity and a salaried employee. Construction contracts are unique because construction work is uncertain in that after the parties involved have agreed upon a price for the construction work, costs may escalate during construction and the contractor may encounter unforeseen circumstances which make the performance of the construction project more costly. (See, e.g., McGovern v. City of Chicago (1917),
Finally, we find plaintiff’s reliance upon Allen v. Treat (1966),
The contention of appellant that he is entitled to additional compensation cannot be sustained. Plaintiff bears the burden of showing that he is entitled to additional compensation because a relevant appropriation was made. (Harry Goldstine Realty Co. v. City of Chicago (1940),
Under the circumstances in the instant case, Illinois case law makes it clear that plaintiff is not entitled to receive compensation pay for his “overtime.” Plaintiff’s agreement with his supervisor whereby he was to obtain payment for his “overtime” is null and void. (Chicago Patrolmen’s Association v. City of Chicago (1974),
We find that plaintiff’s recovery is barred by section 3 — 11—17 of the Municipal Code. (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—17.) A municipal employee is not entitled to additional compensation or benefits absent an express authorization and appropriation by an ordinance.
Ill
Defendant contends that plaintiff has failed to meet his burden of pleading estoppel. Defendant relies upon Eertmoed v. City of Pekin (1980),
The doctrine of equitable estoppel is a doctrine by which “a person may be precluded by his act or conduct *** from asserting a right which he otherwise would have.” (Black’s Law Dictionary 483 (5th ed. 1979).) “Estoppel will generally arise where a party by his statements or conduct leads another to do something [that] he would not have done but for the statements or conduct of the other, and where the one guilty of the expressions or conduct should not be allowed to deny his utterances or acts to the loss of the innocent party.” Bank of Pawnee,
“While the doctrine of [equitable] estoppel has been [applied] to municipal corporations [citation], a finding of estoppel against a public body is not favored [citation].” (Bank of Pawnee v. Joslin (1988),
The doctrine of equitable estoppel may be invoked against a municipality if two prerequisites are met: “(1) an affirmative act on the part of the municipality; and (2) the inducement of substantial reliance by the affirmative act.” (Bank of Pawnee, 166 Ill. App.. 3d at 939; see also Rose,
The affirmative act which induces plaintiff’s reliance must be “[an] act[] of the municipality itself, such as legislation, rather than the unauthorized acts of a ministerial officer. [Citation.] Normally, a city or village cannot be estopped by an act of its agent beyond the authority expressly conferred upon that official, or made in derogation of a statute.” Bank of Pawnee v. Joslin (1988),
This court has previously held that a municipality cannot be estopped by an act of its agent beyond the authority specifically conferred on the agent. (Bank of Pawnee,
We find that the circumstances of this case are not substantially compelling as to warrant the application of estoppel against defendant. In the case at bar, plaintiff is seeking to estop defendant from maintaining that the agreement between plaintiff and his supervisor is unenforceable. Defendant may be classified as a public body. The City of Des Plaines is “but a creature of the State and may exercise only those powers that the legislature [has] expressly or impliedly delegated.” (Rose v. Rosewell (1987),
In the instant case, the doctrine of estoppel may not be invoked against defendant for two reasons. First, the representations of plaintiff’s supervisor were not acts of the City of Des Plaines itself. These representations were acts of defendant’s agent, who exercised no control over the city payroll. (Rose, 163 III. App. 3d at 651.) Second, plaintiff did not detrimentally rely upon his supervisor’s representations because knowledge of the limitations of defendant’s liability with respect to any contract which its officials attempt to enter into was imputed to plaintiff. (Bank of Pawnee,
In addition, a municipality cannot be estopped by an act of its agent beyond the authority specifically conferred on the agent. (Bank of Pawnee v. Joslin (1988),
Furthermore, we have noted that contracts made in violation of section 8 — 1—7 are void ah initio and unenforceable pursuant to the doctrine of estoppel. (Ligenza v. Village of Round Lake Beach (1985),
Accordingly, we rule that plaintiff has failed to meet his burden of proving estoppel. We therefore rule that defendant was not estopped to deny the enforceability of the contract.
IV
Finally, plaintiff contends that defendant’s affidavits do not provide a basis for dismissal pursuant to Illinois Supreme Court Rule 191 (134 Ill. 2d R. 191) and the Code of Civil Procedure (111. Rev. Stat. 1987, ch. 110, par. 2 — 619). Plaintiff also alleges that defendant’s motion to dismiss utilized defendant’s affidavits to establish an affirmative defense while plaintiff was not afforded the opportunity to obtain depositions from the affiants, or an evidentiary hearing in which it is incumbent upon the municipality being sued to prove affirmative defenses. Plaintiff relies upon Woods v. Village of La-Grange Park (1936),
Defendant maintains that there was a sufficient basis for dismissing plaintiff’s complaint because he failed to cite an ordinance approving his alleged oral contract, and defendant clearly showed that the relevant ordinances barred compensation for plaintiff’s overtime work. Defendant relies upon Supreme Court Rule 191 (134 Ill. 2d R. 191), section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), and Ligenza v. Village of Round Lake Beach (1985),
The Code of Civil Procedure makes the following provision:
“(a) Defendant may, within the time for pleading, file a motion for dismissal *** upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
* * *
(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.
* * *
(c) If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.” Ill. Rev. Stat. 1987, ch. 110, pars. 2-619(a)(9), (c).
Supreme Court Rule 191 provides in pertinent part:
“Affidavits *** submitted in connection with a motion for involuntary dismissal under section 2 — 619 of the Code of Civil Procedure *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” 134 Ill. 2d R. 191(a).
In the instant case, plaintiff contends that the affidavit of Ms. Donna McAllister filed in response to his original complaint does not address the allegations in his first amended complaint. Plaintiff also contends that defendant fails to prove that plaintiff is barred from recovery based upon the contents of the affidavit.
We find that there was a sufficient basis for dismissing plaintiffs complaint because he failed to cite an ordinance approving his alleged oral contract. Defendant’s motion to dismiss was properly granted pursuant to section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619) because plaintiff’s claim was barred by sections 3 — 11—17 and 8 — 1—7 of the Municipal Code (Ill. Rev. Stat. 1987, ch. 24, pars. 3— 11 — 17, 8 — 1—7). Therefore, plaintiff’s claim was “barred by other affirmative matter avoiding the legal effect of or defeating the claim.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9).
Section 2 — 619(a) permits the use of affidavits. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a).) The affidavits filed on March 25, 1988, complied with Supreme Court Rule 191. (134 Ill. 2d R. 191.) First, the affidavits were based upon the personal knowledge of the affiants. It is sufficient that “the affidavit[s] here expressly state[ ] that the affiantfs] had personal knowledge of the allegations contained in the motion to dismiss, and that if called as a witness, [each] affiant could competently testify to the matters asserted therein.” (Downers Grove Associates v. Red Robin International, Inc. (1986),
We also find that the trial court properly dismissed this case because courts must accept an affidavit as true if it is uncontradicted by a counteraffidavit or other evidentiary materials. “When facts within an affidavit are not contradicted by counteraffidavit, they must be taken as true notwithstanding the existence of contrary unsupported allegations in the adverse party’s pleadings.” (Ligenza v. Village of Round Lake Beach (1985),
With respect to plaintiff’s allegation that the affidavit of Ms. McAllister filed on June 29, 1987, failed to address the allegations in his first amended complaint, we find that Ms. McAllister’s affidavit complied with Supreme Court Rule 191 (134 Ill. 2d R. 191) because plaintiff’s initial complaint made general allegations that a contract with defendant existed. The initial affidavit of Ms. McAllister simply countered plaintiff’s general allegations. Plaintiff’s complaint was not specific; therefore, Ms. McAllister’s affidavit is not required to be more specific.
Finally, plaintiff, in reliance upon Woods v. Village of La-Grange Park (1936),
We find plaintiff’s reliance upon these cases inappropriate. Plaintiff cites Woods as a case in which this court ruled that defendant’s affidavits were used to establish an affirmative defense to plaintiff’s actions, and that it is incumbent upon a municipality being sued to prove the affirmative defense. In fact, the court’s ruling was limited to the issue of judicial notice of the content of an affirmative defense. The court ruled that before judicial notice could be taken of an affirmative defense, the subject matter of the affirmative defense must be properly presented to the court. Woods,
However, plaintiff’s reliance upon Woods is inappropriate for a more fundamental reason, the reason being that Woods was ruled upon by this court twice. The appellate court of Illinois rendered a second Woods decision known as Woods v. Village of LaGrange Park (1939),
Furthermore, plaintiff relied upon Kelly v. Chicago Park District (1950),
Finally, the facts do not substantiate plaintiff’s contention. The record shows that defendant did not preclude plaintiff from conducting discovery. The trial court granted leave to plaintiff to interview employees of the City of Des Plaines and to review any existing documents, and defendant agreed. Plaintiff chose not to do so and, therefore, cannot claim to have been denied the right to discovery.
We, therefore, find that the affidavits conformed to the requirements of Rule 191 (134 Ill. 2d R. 191(a)) and that the trial court properly relied upon the affidavits in considering the merits of defendant’s motion to dismiss. Accordingly, we find that there was a sufficient basis for dismissing plaintiff’s complaint.
For the aforementioned reasons, we affirm the trial court’s decision.
Affirmed.
JIGANTI, P.J., and LINN, J., concur.