*1 herein, emancipation child, except provided as otherwise obligated but not of parent support death or educate An existing obligation pay child. for support educational both, expenses, or parent.” terminated death of a 5/510(d) (West 1996). ILCS section, According to this emancipation of a child support terminates obligations, except as provided other sections the Act. Section 513(a)(2) of the exception Act is an to support obligations for educa- tion expenses regarding a child who is emancipated only the re- spect that he is longer no a minor. Consequently, support obligations expenses education emancipation child, terminate upon by age, “[u]nless other than agreed writing otherwise or expressly (West 5/510(d) 1996). provided in a judgment.” Here, 750 ILCS parties did agree nor did the 1993 provide Jerry’s order obligation to pay per month for expenses $300 Theresa’s educational marry. would survive Theresa were to reasons, For the foregoing judgment of the circuit court of Sangamon County is affirmed.
Affirmed. GREEN, JJ.,
KNECHT and concur. RETREAT, BELL, THE Plaintiff-Appellant, v. WILLIAM F. Defendant-
Appellee. Fourth District No. 4 — 97—0325
Opinion May 15, filed
McCULLOUGH, J., dissenting. Bohlen, P.C.,
Christopher Barmann, (argued), W. Bohlen Kramer & Kankakee, appellant. for Kankakee, Shapiro (argued),
David Jaffe Jerome C. both of for W. and appellee. opinion COOK delivered the of the court:
JUSTICE dismissed, pleadings, In this unusual case the trial court years, granting file after complaint that had been on for almost seven years, During the seven defendant leave to withdraw his answer. for and filed a motion sum- discovery had been taken defendant had mary judgment that had denied. We reverse and remand (1) to amend to seek instructions for the trial court allow resolve case on the facts. additional relief this Retreat, 7, 1990, not-for-profit corpora- plaintiff, On June tion, F. Bell. The com- complaint against defendant William filed its Bernard alleged the Retreat leased a 1.2-acre tract from plaint that 1, 1976, gave that the lease Billberg, Jr., by July a lease dated “a the lessor received the Retreat a of first refusal the event during term of “the purchase premises” bona fide offer leased Lease, any this alleged renewal thereof.” The further (which 20, 1989, that on or about July purchased 16.5 acres tract) included the 1.2-acre from the estate of Billberg Florence for $285,000. complaint alleged 1, 1976, July that the lease “was force on” and effect Count I requested specific perfor- 1989. mance, convey that Bell ordered to the 1.2-acre tract to the Retreat (the $20,945 in exchange proportion for purchase price the total at- acres). to 1.2 sought tributable Count II a judgment against inBell $100,000. the amount of 11, 1991,
Bell filed January an answer in which he admitted that the lease was in full 30, 1986, force and effect until June but denied it was in force after that time. The parties proceeded with discovery. 13, 1992, On November Bell filed summary a motion for judgment alleging necessary Retreat had not filed the beyond extending 2, 1994, the lease June 1986. On March trial court denied the motion for “in judgment that there is question fact as to whether terms of the lease were extended.” 19, 1994, April On new counsel their On appearance for Bell. entered June Bell filed a “Motion Leave to Withdraw Answer and File Motion to Dismiss in the Alternative Motion Strike.” That granted years later, over two on September 25, On February granted the court the motion to dismiss in a “Mem- Opinion” orandum of granted leave to amend. *3 15, 1997,
On April the court appealed, entered the order now stating: Complaint That the not
“1. does set forth in support ‘in conclusion that the lease was full force and effect on the date in question.’ allege
2. That even if the Plaintiff did support facts sufficient to its conclusion that the lease was in full force and effect on 1989, July 20, Complaint about the would fail to a still state cause action, had, best, of as Plaintiff have a right would at first of parcel to it greater refusal as the rented and not as to the tract conveyed.” 15, 1997, April not give plaintiff order did to amend.
The trial court has discretion to permit a defendant to a withdraw an answer and file motion to as long dismiss as there will Falcone, 625, be no to prejudice plaintiff. Premo v. 197 Ill. 3d App. (1990) (answer 629, 1071, 554 only N.E.2d 1074-75 filed two weeks earlier). Usually granted leave an defen to withdraw answer is when matter, plead especially dant desires to some affirmative when some filing event has occurred to of the answer. v. subsequent Bailey (1988) Petroff, 791, 278, App. 798, 170 Ill. 3d 525 N.E.2d 282-83
453 (leave unless limitations, be waived which would plead statute Trust, Village v. West N.A. affirmatively); La Salle National raised (defen (1994) 77, 1157, mont, 43, 1178 Ill. 3d 636 N.E.2d App. 264 Simpson v. Illinois question); longer property owned dant no 471, Services, Inc., App. 225 3d 588 N.E.2d Health Care Ill. days 90 affidavit within (plaintiff failed to file health-care 473 simply has overlooked Of course when defendant filing complaint). quickly a to dismiss issue that could be raised answer, granted. such leave should be seeks leave withdraw 362, 365, 561 Recaro, N.E.2d App. Wall 204 Ill. 3d v.
(1990). a but second happens when one defendant answers That often to dismiss. a meritorious motion appears files what to be defendant Rinaldi, 179, 182, 634 N.E.2d 262 Ill. 3d App. First Bank v. Birk, N.E.2d (1994); App. v. 168 Ill. 3d Kruk (1988) (defendant alleging delay joined other defendants’ motions process). in service of sought, is not “to make
When leave withdraw an answer 616(a) (735 (West 1996)), defense or assert a cross claim” ILCS 5/2 — wording objection technical simply raise the is answer should be complaint conclusory, leave to withdraw the forward, not denied. Lawsuits should move backward. Motions out, stage, plaintiff cases where early dismiss are useful weed clearly clearly it that no set prevail, apparent cannot cases where is recovery. Wright of facts can which will entitle a proven (1996). Danville, 110, 115 City 174 Ill. 2d 675 N.E.2d v. complaint adequately ap That not If the the situation here. discovery file mo that he take prised Bell of the issues so could complain summary how can Bell now judgment, As complaint did inform him of the Retreat’s claim? adequately summary judg Bell’s motion for the trial court held when denied ment, question whether the lease was existence on Questions of fact cannot be decided on question fact. dismiss, ruling “In on a section 2—615 motion motion to dismiss. accept well-pleaded the court must as true all Bryson which can drawn therefrom.” and all inferences reasonable Publications, Inc., Ill. 2d 672 N.E.2d v. News America (1996). 1207, 1213-14 clearly indicating
If lease had information extended, filed motion for he should have another *4 905, Corp., App. 257 Ill. 3d judgment. Pagano v. Occidental Chemical allowed). (successive (1994) A mo 909, 569, 629 N.E.2d 573 motions way determine whether summary is a better judgment It is a motion to dismiss. support there are facts to than 454
appears that the sole reason wanted this case decided on mo- dismiss, tion to and not on a motion for summary judgment, was to advantage may take of the rule that affidavits not be considered deciding section 2—615 motions. is frequently
It said that the determination of a section 2—615 motion is based on the rather on pleadings facts, than the underlying that facts only from the face apparent pleadings may be considered, affidavits, products and that discovery, and other evi dentiary may Michael, materials be considered. 3 R. See Illinois (1989) (Civil Trial). Practice 27.4 Procedure § Before The cases so holding concerned, however, are attempts on the part the de (which fendant, movant, well-pleaded contradict must be true) accepted partially and to convert the section 2—615 motion Pratt, into a motion for judgment. Wegman v. 219 App. Ill. (error (1991) 3d 579 N.E.2d 1044 prayer to strike trial); on transcript based of criminal v. Millikin National Seefeldt (1985) (section Bank, App. 137 Ill. 3d 32 485 N.E.2d 2—615 judgment by of dismissal be supported cannot matters other unlike 619); the pleadings, judgments under section Baugh 2— Martindale-Hubbell, Inc., man v. Ill. App. 129 3d 472 N.E.2d (court may not consider affidavits supporting “offered movant”); Forms, Inc., Johnson v. Nationwide Business 41 Ill. (1976) (error App. 3d 359 N.E.2d to confuse mo affidavits, tions and consider defendant’s depositions, exhibits motion). section 2—615 cases, however, ignore
There are no
discovery
affidavits and
materials
plaintiff,
opposition
submitted
to the section
motion,
2—615
in response
arguments
to defendant’s
plaintiff
pleading only
plaintiff
is
conclusion and that
plead
cannot
specific
in support
of that conclusion. “The circuit court should
pleadings only
clearly
dismiss a cause of action on
appar
it is
ent that
set
proven
no
of facts can be
which will entitle a
recovery.” Wright,
No was not argues possession that that 1989. Bell July acres year year. The lease, tenant from under the but as a holdover however, cannot be question of fact that of is a possession, nature the the argues that Retreat was on a motion to dismiss. Bell also decided com- a the the lease to its required copy extending to attach of (West 1996): plaint. See ILCS 5/2—606 instrument, upon “If a is a written claim defense founded thereof, relevant, be at- copy or of so much of the same as is must therein, unless the pleading tached to the exhibit recited pleader pleading stating his or her an affidavit attaches to him showing that the instrument is not accessibleto or her.” court, however, not that in the trial and the argument Bell did raise given opportunity Retreat should at least the to attach an affidavit pleading regarding accessibility. to its necessity
The for a written notice of extension could have been of have Of copies waived the lessor or the notice could been lost. lessor, notice, the the original course delivered to would have attorney in the the On the possession of Retreat. Retreat, giving estate sent a notice to the representing Billberg the Bell, $285,000 “officialnotice” that a offer had been received from option the under “should the Retreat Club resolve exercise refusal,] right please notify first me Paragraph [the 10 of the Lease recognized thereby It is that the lessor significant of the resolution.” ap- right in that the of first refusal that the lease was existence and Ackman, The L. dated June states plied. affidavit Richard Retreat, that a notice of attorney prepared he was the for the he that lease, Billberg and that the notice was sent extension allege attempted The Retreat could have these estate. the trial may that be excused where complaint,
amended failure if change ruling made clear it would not its even court it that complaint were amended. argues pleadings. to the argument
Bell’s own is limited estate and appearance Billberg Retreat entered (The the admission of argument ignores the sale Bell. consented to attorney represented the estate’s that he solicited the consent rights.) prejudice the Retreat that the consent would not decision, gave The trial court a second reason for which stated would control even was sufficient. That reason part was that the lessee of a small a larger tract is tract has remedy, lease, no right under first refusal contained when the lessor chooses to sell the tract larger attempt sep- and does not arate If out the smaller tract. the trial is on that ques- court correct law, cases, tion of on which there seems to no Illinois then the trial properly complaint. court dismissed the trial court “ mistaken, however, remedy. the lessee has no ‘To allow the owner the whole to by-pass optionee merely by attaching ad- part option ditional land to the nugatory under would render substantial which the optionee bargained for and ob- ” v. Hoffman, tained.’ Costello 30 A.D.2d 291 N.Y.S.2d (1968), quoting Kruse, Super. Guaclides v. 67 N.J. (1961). A.2d *6 say New remedy,
The York cases that the in proper a case where larger parcel already title to the has passed, compel reconvey- is to premises grant ance injunction barring of the leased an its sale anyone grantee option. other of the v. Tarallo Norstar (1988). Bank, 485, 144 A.D.2d 534 N.Y.S.2d 487 The lease here, apparently has now expired reconveyance would at least give opportunity the Retreat an against bid Bell. Other states al- low specific performance, allowing compel the lessee to a sale of the tract, smaller perhaps proportionate price at as the Retreat seeks Dakota, Berry-Iverson Johnson, here. Co. North Inc. v. 242 N.W.2d (N.D. 1957). (Fla. 126, 1976); Denco, Belk, 134-35 Inc. v. 2d 97 So. 261 Money damages may Co., & appropriate. Anderson v. Armour 205 (1970). 801, 84, Kan. 473 P.2d 89 The Retreat sought specific performance money damages complaint, attempt and in an all to cover now injunction bases asks leave amend to seek an well. A plaintiff remedy. this situation should have some
Accordingly, we granting reverse order the trial court Bell’s We to dismiss. remand the case with instructions to allow the complaint relief, Retreat amend its seek further and with facts, instructions this case be resolved either trial summary judgment appropriate. motion for Reversed and remanded with instructions.
STEIGMANN, J., concurs. McCULLOUGH, dissenting: JUSTICE disagree majority’s I that Bell’s mo- Because with the conclusion granted, I dissent. improvidently respectfully to dismiss was
457 well-pleaded dismiss, all 2—615 motion to on a section ruling In those inferences from all taken as true and reasonable are however, of law conclusions mere plaintiff; are in favor of the drawn complaint in the allegations by specific factual unsupported or fact 374, 384-85, Ill. 641 City, 2d disregarded. are Doe v. Calumet (1994). makes when proper Dismissal is N.E.2d basis; facts must be specific conclusory allegations without factual Outdoor, v. Inc. which conclusions rest. Universal pleaded upon such N.E.2d Grove, App. 194 Ill. 3d Village Elk (1990). instrument, such as the founded on a written When a claim is case, the lease must be attached to in the instant therein, showing the appended affidavit as an or recited exhibit (West ILCS 5/2—606 pleader. instrument inaccessible 1996). was a of the copy to the Retreat’s complaint
Attached to that lease. 1976, five-year lease and a March “addendum” provided: of the Paragraph 8 1976 lease agreed that shall the exclusive “It is further the Lessee have option right and to renew or extend this Lease for an additional years term, expiration year [-] of five of the five original term provided under the same terms and conditions as for herein with however, provision', exception provided, this renewal that no- given by of the such option tice exercise of shall be Lessee to the (60) days sixty expiration Lessor at least before term added.) lease, writing.” (Emphasis this said notice be in renewal, Retreat any did not attach written notice of nor showing inaccessible, affidavit the instrument to be but did attach 18, 1981, addendum, part: March which provides relevant
“WHEREAS, parties it is the intention of the hereto that the (5) year subject may Lease pe- be extended for additional five Lessee, July 1, 1986[,] option being riod at the from to June *7 and, 1991;
* * * to option 1. Lessee shall have the exclusive and renew and (5) years subject the Lease for additional term of five at extend 30, 1986, expiration the the extension to June said renewal and of [,] 30, 1991, July the being extension from 1986 to June under in terms the Lease dated the same and conditions as contained day July, 1st of by given Lessee option
2. Notice of the exercise of this shall be June, day sixty days Lessor at before 30th of least the writing.” said notice to be in apparent It is from the terms of the lease that unless it was five-year period, option extended of the to renew for a exercise days expira- written notice the least through prior lessor at tion, expired it on June 1981. The Retreat did not attach a copy of any exercising option written notice the to extend the lease June The 1986. March 1981 addendum to the its terms confers only on option following a future a second renewal five-year expira- option provided 1, 1976, tion of the for in the July lease. While referencing original five-year July 1, the commencing renewal the addendum makes no mention of actual option exercise of that Rather, or provided of notice appears lessor. the addendum 1, 1976, constitute modification of 8 of paragraph July lease, which precluded five-year option. extension renewal admission,
Even Bell’s in his withdrawn answer to the com- plaint, that full 30, 1986, the lease was in force and until effect June admission, constitutes an evidentiary binding judicial fact or a there any is no beyond evidence of extension that date. The did Retreat attach to its complaint any or file of record evidencing instrument 1, 1986, option commencing July timely exercise the renewal ofor lessor option. of exercise of that Absent instruments evidenc- ing exercise of the second option, sup- renewal the Retreat could not port allegation conclusory the lease was full force and ef- fect at the time of sale of property the factual basis upon specific which its claim for was performance founded. majority concludes that Bell never the applicability raised section 2—606 “defense” the trial court but so for does However, first time on motion appeal. paragraph Bell’s to dismiss at 1(a) provides: thereof, agreement
“The lease Paragraph upon referred to expired purported which is to be based own terms on June thereto; being no extension renewal attached nor is any there attached thereto written notice election to exercisethe option pursuant provisions to extend to the thereof.” suggests The majority untimely that Bell’s motion to dismiss was procedural history based on case’s extensive and states that if clearly indicating had information that the lease had not been extended, he again judgment, should have filed for rather moving withdrawing complaint. his answer to dismiss the I disagree suggestion for insuffi Bell’s to dismiss ciency any It is untimely. appropriate stage verdict, proceedings, particularly objec before raise the the complaint fails to state a cause of action and is therefore legally Wimmer v. 108 Ill. 2d Koenigseder, insufficient. (1985) (waste judicial
N.E.2d resources to allow continu proceeding cause of ation of where failed state valid *8 review). first time though for objection brought even action history of this Moreover, irregularity procedural despite any i.e., that negative, case, prove not on Bell to the burden was renewed, to attach by the Retreat but was borne lease not sued on. The June complaint proof of the instrument its attorney Ackman, and one time a member of affidavit Richard Retreat, comport requirements of section 2—606 does not that the lease is acces- allege showing because it does not Moreover, support for affidavit is insufficient factual sible. Ackman’s avers that While Ackman for two additional reasons. it to the he of extension of the lease and mailed prepared estate, he in which he did so specify period the time Billberg does end) nor to which days than 60 (required prior be earlier July 1, It is July 1, 1986. also the extensions he refers — years Ackman’s more noteworthy that is dated than three affidavit granted before the trial court motion to dismiss and also al- Bell’s Nevertheless, lowed the Retreat leave to amend. the Retreat did not complaint. Surprisingly, majority supplies amend own conjecture as for the missing rationale instruments or averments as accessibility. reasons,
For all the I respectfully above dissent. ILLINOIS, OF Plaintiff-Appellee, THE PEOPLE THE STATE OF v. BRIAN CONERTY, Defendant-Appellant. P. District
Fourth No. 5 — 97—0870 Opinion May Rehearing filed denied June 1998.—