*1 presented, fearing issues are in seemingly relaxation exceptional cases weakens the protections afforded to all.
Last, we find no suffi- intervening circumstances record purge cient the taint of defendant’s detention illegality otherwise for the him of ei- provide against basis admission at trial ther his statement or weapon recovered a result. as
We therefore reverse defendant’s and remand convictions new trial.
Reversed remanded.
COCCIA, P.J., GORDON, J., concur. ACADEMY, MAINTENANCE, Plaintiff-Appellant, LOYOLA v. S&S ROOF al.,
INC., Defendants-Appellees. et (4th Division) First District No. 1 — 88—2525 3, 1990. Opinion May on denial of Modified rehearing June 1990. *2 McMORROW,P.J., dissenting. F. (William Galliani and Patrick Doell, Ltd., Chicago R. of &
Galliani counsel), appellant. for Healy, of Maintenance, Mundelein, for S&S Roof Boldt, appellee A. of
Raymond Seidel, Cosgrove M. Chicago (Terry Peterson, Ross, of Schloerb & Energy Systems, Inc. Hoke, Kelly counsel), appellee for of Stephen M. of the court: the opinion delivered JIGANTI JUSTICE in favor of defend- summary granted The trial court sought subsequently ant. The appeal questions This motion. the plaintiff’s court denied
trial to amend. the motion deny trial court to and discretion power a three-count Academy, Loyola plaintiff, En Maintenance, Inc., Kelly defendants, Roof S&S against Inc., incurred to its roof. ergy Systems, seeking damages recovery I, S&S, In count acts of against alleged negli directed various Loyola In gence Loyola’s roofing system. related to S&S’s installation of II, S&S, count of against Loyola alleged also directed S&S’s breach III, an In count implied warranty merchantability. against directed roof, ex Kelly, alleged manufacturer breach an Loyola press The trial warranty. granted summary judgment favor the defendants on counts II III. a reconsidera Loyola moved for tion of the judgment order. The court denied the motion. I, S&S then filed a remaining motion dismiss count the sole count. motion, At the hearing on S&S’s made an oral motion for Loyola court, leave to file an amended complaint. prejudice, granted dismiss, S&S’s motion to and without prejudice, Loyola leave Thereafter, to amend. Loyola filed a written motion for amend. the proposed complaint, Loyola alleged defendant had breached an Kelly implied warranty merchantability violated Consumer Fraud and Business Practices Deceptive 121½, Act (Ill. Rev. Stat. 261 et seq.). Loyola further alleged against both defendants and S&S Kelly breach of an implied of fitness for a warranty particular purpose and breach of contract. The trial court denied motion Loyola’s for leave to amend the com plaint.
In amend, the trial appealing court’s denial of leave to Loyola maintains that under 1005(g) section of the Code of Civil Procedure 2 — (I 1985, 110, Stat. 1005(g)), Rev. ch. the trial court is ll. 2 — the explicitly granted power upon just and reasonable terms to permit amendments after asserts that the trial summary judgment. Loyola court’s denial of its leave to amend was an abuse discretion. Section Code, 14,1985, 2— 05(g) September effective provides: 1 0 “Before or the entry summary after of a the court judgment, shall to permit pleadings upon just be amended and reasonable 1985, 110, terms.” Ill. Stat. 1005(g). Rev. ch. par. 2 — The defendants’ response Loyola’s argument to is that the stand ard for amending complaints judgment after final is enunciated in any Procedure, section 616(c) Code Civil which states: 2 — time, “A be or after pleading may any before to conform the the terms judgment, proofs, upon to pleadings as that Rev. Stat. may just.” (Ill. to costs continuance be 1985, 110, par. 2-616(c).) ch.
Based on section the that after sum 616(c), defendants conclude 2 — has be amended to mary judgment pleadings may only been entered conform the to the In of their the pleadings proofs. support argument
defendants cite v. Great Wells Atlantic & Tea Co. Pacific 1012, Wells, Ill. 525 N.E.2d In the 1127. court reasoned that together, 616(c) when taken sections stand for the 1005(g) 2 — 2 — after “that a proposition grant before but summary judgment, final, becomes the shall summary judgment permit before the court to upon just (Wells, be amended and reasonable terms.” pleadings con 1020, 1132.) N.E.2d at court on to went that, after the judgment, only permissible clude final amendments pursuant the the to pleadings proofs those which conform to section 616(c). 2 — the diverges Our from that of court. The analysis Wells is to construed “to the end that liberally Code of Civil Procedure be to finally according controversies determined the may speedily 110, the Stat. rights parties.” (Ill. par Rev. ch. substantive alone, 616(c) plead section limits amendments to Standing 1 — 2 — final to those conform to the In judgment proofs. after that the ings case, judgment already the had been entered when present summary Nevertheless, made motion the we do Loyola that conform not believe limited to amendments that the Loyola the discretionary to court’s pleadings proofs. the We believe of Civil to 1005(g) per under section the Code Procedure power 2 — terms upon just implicates power mit amendments and 2— of the court to vacate under sections 2 — 1203 judgments 2-1203, 2-1301(e).) 1301(e). (See pars. Ill. Rev. Stat. do so judgment It is within court’s discretion to vacate v. St. Jo justice parties. (Espedido substantial between promotes If 526 N.E.2d Hospital (1988), seph just in its under the and reasonable discretion believes that is ap an 1005(g) standard of section amendment 2 — court, should va justice, interest of substantial propriate, case and allow the amendment. judgment present cate discretionary power court had vacate order, final removing 616(c) judgment impediment thus section 2 — to amend. See 1005(g) section motion for leave Ruklick Loyola’s 2 — Schmid, 1208. v. Julius established, contrary argument, defendants’
Having grant motion for authority Loyola’s the trial court did have *4 amend, now to examine whether the court leave to we turn defend motion. Both the denying Loyola’s exercised discretion to the case of v. Gra Kupianen and the in this case cite ants N.E.2d the factors the 3d (1982), ham to grant bear mind in whether an amendment deciding court should to court considered whether pleadings. Kupianen, appellate whether proposed pleading, amendment would cure defective amend, there had been the timeliness previous opportunities amendment, proposed and the potential prejudice surprise note, however, other It is that in the party. important Kupianen case, the movant from the trial court’s denial of motion appealed his to amend the after pleadings the court had dismissed his countercom plaint. case,
In the present we are with the court’s denial of dealing a motion to amend the pleadings granted after the court judgment. Different considerations are applicable depending stage of the proceedings in which the movant first brings pro posed (See amendment. (1972), Able Pure Oil Co.
558, 290
N.E.2d
The later in the
proceedings
pro
movant
poses
amendment, the more
it is to
likely
opposing
party
(See
Michael,
burden the court.
3 R.
Practice
Illinois Civil
(1989).)
not
We do
view motions
pleadings
§26.2
to amend the
after
summary judgment with the same
liberality
we view motions to
amend after a dismissal order in the pleading stage. Upon reaching
the summary judgment stage of the
the court
proceedings,
has moved
from an
examination
the sufficiency of the
pleadings, through
discovery stage, to a determination of whether
there
material is
sues of fact to advance to a full trial. See Janes v. First Federal Sav
ings & Loan
Association
(1974),
Presumptively, by the time of the
on
hearing
the motion for
summary judgment, the parties know
everything
be known about
the facts and the law of the case. The hearing on the motion is a sig
nificant, potentially
dispositive stage of
proceeding. Entering this
stage, the trial judge
right
has a
and a need to know what the parties
know. Accordingly, motions to
based on information
known to the movant before the hearing should be made before the
court reaches the summary judgment stage. (Cf. Delgatto v. Brandon
Associates,
Ltd.
131 Ill. 2d
N.E.2d 763.
In the instant case Loyola proposes amendments poten tially significant impact to the case. The Loyola alleges facts
804 The litigation. at the of this inception amended were known complaint its complaint trial could have filed amended Loyola court noted II, I and on counts granted summary judgment before the court for reconsideration of Loyola’s motion contemporaneously its lack of alac offered no for Loyola justification summary judgment. it its denied and the trial court was within discretion rity, motion to amend the Loyola’s of the trial court is affirmed.
Affirmed. J.,
JOHNSON, concurs. McMORROW,dissenting: PRESIDING JUSTICE recognizes majority ostensibly Although I dissent. respectfully following summary judgment pursuant to amend plaintiff’s right (Ill. Rev. Illinois of Civil Procedure 1005(g) to section Code 2 — this 110, then eviscerates 1987, 1005(g)), majority Stat. ch. par. 2 — restrictive limitations needlessly and right imposing unprecedented by be to amend will plaintiff’s right in which the on the circumstances amend that “motions to creates broad rule majority permitted. the hear information known the movant before based on summary judgment the court reaches ing should be made before 803.) The ma Ill. added.) App. 198 stage.” (Emphasis (Loyola, plaintiff’s the trial court then determines that jority the “facts because following summary judgment request incep were known in the amended [plaintiff] alleges no justification “offered litigation” tion of th[e] doing, In so Ill. App. lack of 198 alacrity.” (Loyola, its Procedure of the Code of Civil the admonition majority ignores construed, that controver end “shall be provisions liberally its to the substan according determined speedily finally sies may 110, 1987, 1 — 106. Ill. Rev. Stat. rights parties.” tive regarding to Illinois contrary precedent majority’s ruling v. Conti (see Siebert following summary judgment requests 728; 891, N.E.2d Ill. 3d 515 (1987), App. 161 nental Oil Co. Ruff 811, 513 3d (1987), Hospital Northwestern Memorial Ill. 3d (1982), 107 v. Graham upon Kupianen N.E.2d relying Club, 774; v. Camelot Swim 373, 377, Wingate see also N.E.2d substantial 963), accomplish and fails to ju in Illinois established already of the standard justice. Application should have allowed the trial court reveals that risprudence motion for leave to file an complaint.
Siebert v. Continental Oil Co. N.E.2d Hospital (1987), Northwestern Memorial Ruff v. identical to instant virtually cause and show that the trial court in the case at bar abused dis cretion when it denied leave to file an amended complaint. both Siebert and the trial court entered Ruff, summary judgment favor of the defendants and denied motions for leave to plaintiffs’ amend. On that the motions for appeal, courts determined to amend should previous op have been allowed despite plaintiffs’ portunities to amend their complaints. conclusion, To reach this the courts in noted that Siebert Ruff
section 2 — 1005 of the Illinois Code of Civil Procedure in provides per tinent part: “Before or after entry judgment, of a court shall permit pleadings just to be amended and reasonable upon terms.” (Ill. Rev. Stat. ch. 1005(g).)The courts ob 2 — that, according Notes, served to the Historical and Practice this provi “ sion in section 2 — 1005 the power of the court to permit ‘reaffirms amendments to pleadings any time, as mandated 2— by section 616(a) Law, of the Practice Civil notwithstanding party’s invocation of the summary judgment procedure notwithstanding the success ” that invocation.’ in (Emphasis Ruff.) Ruff, 159 Ill. 3d at 817-18, quoting Stat., Ill. Ann. Historical and par. 2 — Notes, Practice (Smith-Hurd Siebert, at 21 1987); see also Supp. Ill. App. 3d at 895.
Having determined that the trial court possessed the to authority vacate summary judgment and permit plaintiffs’ amendment to their complaint, court in turned Siebert detailed analysis “what standards the court ‘shall’ use in at its decision as arriving whether or not the amendment should permitted.” (Siebert, Relying upon Kupianen Graham 373, 377, the Siebert court concluded that “ the relevant factors are: the proposed ‘whether amendment would cure the defective pleading [citation]; parties whether other would sustain or prejudice virtue of the amendment surprise by proposed [ci tations]; the timeliness of the amendment proposed [citation]; whether previous opportunities to amend the could be iden ” tified. (Siebert, these Applying [Citation.]’ it, factors to the case before the court in Siebert found that the plain tiff should have been allowed to file an amended complaint: bar, “In the case at the amendment would cure the defective *** ***.
pleading this by addressed elements in test were The next two to the is applicable in a statement which court in Kupianen could have resulted surprise case at ‘No bar: pleading stage. still at the the case was other since parties court at to the trial presented was amendment proposed The court in was heard.’ time the motion vacate [Citation.] first three components having decided Kupianen, counterclaim, amendment allowing in favor of analysis its conclusion reaching factor not the final apply did have the counterclaim should amendment attempted Despite the same approach. adopt been We permitted. ju sub the case opportunities having previous had ap only just the complaint, dice to amend the complaint.” is to allow the now proach Siebert, 161 Ill. 3d at 896. at bar. As of the case
Siebert, dispositive Kupianen Ruff, in the instant cases, proposed those in each of plain- alleged than those theories legal different cause contained also amendments were proposed Plaintiff’s tiff’s original The record original complaint. the defects to overcome sufficient the court’s to amend at sought leave plaintiff promptly shows that initial complaint. to the merits of plaintiff’s hearing respect last sought had not previously that plaintiff The record also indicates for leave to amend filed its motion amend, and that plaintiff leave to allowance. express the trial court’s unfairly prejudicial not be to amend would the motion Permitting litigation involved actively remained defendants, who have “ *7 or prejudice ‘No The court in Siebert reasoned: its inception. since the case was since parties to the other have resulted could surprise to presented was amendment stage. proposed pleading at the still ” (Siebert, heard.’ to vacate was the time the motion the court at trial 377.) Ill. 3d at App. 107 Kupianen, quoting 3d at App. 161 Ill. Siebert, and, as in stage pleading also at the was The case at bar other parties.” could have resulted surprise or prejudice “[n]o bar, as in Also, in the case at at 896.) 3d (Siebert, App. 161 Ill. previous had having the “[d]espite plaintiff’s Kupianen, Siebert and only the complaint, amend the judice in the case sub opportunities to amend the plaintiff is to allow now approach and reasonable just Siebert, Based 896.) upon 3d at 161 Ill. (Siebert, App. the complaint.” between justice in order to do substantial and and Ruff, Kupianen, to file plaintiff have allowed court should the the trial parties, complaint. an amended to the case at Kupianen refuses to the factors majority apply on the is because it theory Kupianen distinguishable per
bar following tained to a to amend with request prejudice. dismissal factors, new, the the creates broad rule place Kupianen majority the “motions to amend on information known to pleadings based movant the court hearing before the should made before reaches added.) (Loyola, the summary judgment stage.” (Emphasis this basis, majority at On the determines that the trial following summary to amend request alleges because “facts amended com [plaintiff] were at the plaint inception litigation” known and th[e] “offered no justification (Loyola, for its lack alacrity.” at 804.) Thus, majority exclusively upon relies factor which Siebert, the court in and Ruff, significant found least and Kupianen i.e., readily excused, whether the had prior opportunities amend the complaint.
I logic find neither nor ruling. Contrary wisdom majority’s to the majority’s statement that different considerations are applica depending ble stage proceedings in which the plaintiff first requests (Loyola, 803), to amend its Ill. Illinois applied courts have of Kupianen the factors to motions for leave to amend filed dismissal with following prejudice those filed See, after entry summary judgment. Wingate v. e.g., Camelot Club, Swim Inc. 963; Ruklick v. Julius Schmid, App. 3d N.E.2d 1208.
In addition, there is no sound reason to
one standard
apply
the motion to
is
following
amend
prejudice,
dismissal with
different
apply substantially
standard when the motion to
made
Both
following summary judgment.
with prejudice
dismissal
are, in
summary judgment
“significant,
the words
the majority,
po
tentially dispositive stage[s] of the proceeding^].” (Loyola, 198 Ill.
At each of
litigation,
these
points
parties
obligated
to know the facts
supporting
law
their positions,
and to so inform the court.
Rev.
(See Ill.
Stat.
2—
611; 134
137 (sanctions
Ill. 2d R.
for failure to make
in
legal
into facts and law
quiry
supporting
position).)
stage
which the motion
amend is
is a factor with
presented
respect
by the amendment.
unfairly prejudiced
whether the nonmovant will be
af
has
been filed
Irrespective
plaintiff’s request
of whether
“
preju
dismissal
or
summary judgment,
ter
after
‘[n]o
***
parties
could
other
since
case
surprise
dice
result[ ]
stage[,]
still at the
amendment
pleading
[provided]
proposed
was
[t]he
*8
was
was
to the trial court at the time the motion to vacate
presented
”
107 Ill.
(Siebert,
App.
quoting Kupianen,
heard.’
161 Ill.
3d at
377.)
above, in the case at bar were
parties
3d at
As noted
still
to file
request
at the
pleading stage
plaintiff presented
facts,
an
not
but
the
complaint alleging,
legal
new
different
little, if
was
parties
acknowledged
any, discovery
ories. The
have
that
ruling
summary judg
taken
to the court’s
on the defendants’
prior
ment
in the court’s re
plaintiff
motions. The
prejudice
apparent
I fail to
plaintiff
complaint,
fusal to allow
to file its first amended
but
by
discern how defendant would be
allowance
prejudiced
since
plaintiff’s
particularly
motion to file
first amended complaint,
parties
arguments relating
were still before the court with
The
relies do not
its deter
upon
majority
support
cases
which
amend be
mination that the
was
denied leave to
plaintiff
were
[plaintiff] alleges
complaint
cause
“facts
the amended
no
known
“offered
inception
litigation”
plaintiff
th[e]
justification
(Loyola,
for its lack of
alacrity.”
(1974), 57 Ill.
In
First
& Loan Association
Savings
Janes v.
Federal
disapproved
the Illinois
Court
Supreme
motions that seek both dismissal with
hybrid
prejudice
The
the trial court
judgment.
supreme
judge
court cautioned
should
the court entertains
dispose of motion
dismiss before
relevant to
motion for
The
decision is not
summary judgment.
Janes
the issues
cause.
raised
instant
majority
also relies
Able
Pure Oil Co.
Able,
leave to
plaintiff requested
do will and when prejudice reasoning de (8 The Able court’s defendant.” balancing prejudice plaintiff both pended primarily upon that amendment were allowed or denied. and defendant the event fails consider the to either the majority if allowed or denied the defendants that will result amendment were in the instant cause. 592, 367
Powers v. Mirror National Works refers, involved a at N.E.2d to which the also majority after notice had been tempt appeal to amend his complaint in Powers is expired. Consequently, statute of limitations had cause did not to the case at bar. The instant applicable had been appeal to amend the after notice of request Indeed, filed. defendants in the case at bar never to the trial argued the motion for leave to amend should be denied on *9 ground that the amendment included a cause of action on which statute of limitations had expired. Nor has the in the instant plaintiff cause litigated another, various theories “one after allow recovery ing each particular proceed claim to to final institut judgment before one,” ing the next Powers as did the (52 599). reasons,
For these I disagree majority’s with the refusal to apply the factors set forth in Kupianen and the determination majority’s the trial court leave to amend its com- plaint following summary judgment.
In re SALMONELLA LITIGATION (2nd First Division) District No. 1 — 88—0983 Opinion May 8, 1990. Rehearing denied June 1990.