{ "id": 3607776, "name": "INLAND REAL ESTATE CORPORATION, Plaintiff-Appellant, v. LYONS SAVINGS & LOAN, Defendant-Appellee", "name_abbreviation": "Inland Real Estate Corp. v. Lyons Savings & Loan", "decision_date": "1987-03-31", "docket_number": "No. 2\u201486\u20140281", "first_page": "848", "last_page": "855", "citations": [ { "type": "official", "cite": "153 Ill. App. 3d 848" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "67 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "394 Ill. 71", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2472075 ], "pin_cites": [ { "page": "73-75" } ], "opinion_index": 0, "case_paths": [ "/ill/394/0071-01" ] }, { "cite": "373 N.E.2d 530", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 920", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3413123 ], "year": 1983, "pin_cites": [ { "page": "925" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0920-01" ] }, { "cite": "494 N.E.2d 1227", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "144 Ill. App. 3d 958", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3501052 ], "year": 1978, "pin_cites": [ { "page": "967" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/144/0958-01" ] }, { "cite": "415 N.E.2d 1015", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473261 ], "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0462-01" ] }, { "cite": "422 N.E.2d 143", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "96 Ill. App. 3d 1077", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12146336 ], "year": 1978, "pin_cites": [ { "page": "1082" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/1077-01" ] }, { "cite": "425 N.E.2d 1174", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 700", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3098917 ], "year": 1981, "pin_cites": [ { "page": "710" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0700-01" ] }, { "cite": "373 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 662", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3423350 ], "weight": 2, "pin_cites": [ { "page": "667" }, { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0662-01" ] }, { "cite": "20 N.E.2d 835", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "300 Ill. App. 231", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3236926 ], "pin_cites": [ { "page": "236-37" } ], "opinion_index": 0, "case_paths": [ "/ill-app/300/0231-01" ] }, { "cite": "23 N.E.2d 348", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "302 Ill. App. 71", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3144953, 3144166 ], "year": 1939, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/ill-app/302/0071-02", "/ill-app/302/0071-01" ] }, { "cite": "433 N.E.2d 1350", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1939, "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 247", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5471797 ], "weight": 2, "year": 1939, "pin_cites": [ { "page": "253-54" }, { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0247-01" ] } ], "analysis": { "cardinality": 756, "char_count": 19196, "ocr_confidence": 0.779, "pagerank": { "raw": 2.790303771196607e-07, "percentile": 0.8359657261871252 }, "sha256": "1bfb09064e8f01fe91a9823839b870339273ff7b5939eeb5113a78d1ca0dd51f", "simhash": "1:721ad434e040931a", "word_count": 3116 }, "last_updated": "2023-07-14T16:39:45.296283+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "INLAND REAL ESTATE CORPORATION, Plaintiff-Appellant, v. LYONS SAVINGS & LOAN, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE REINHARD\ndelivered the opinion of the court:\nPlaintiff, Inland Real Estate Corporation, appeals from the dismissal of its complaint against defendant, Lyons Savings and Loan, an Illinois savings and loan corporation.\nPlaintiff raises the following issues for review: (1) whether the trial court can properly consider additional motions to dismiss once it has denied a motion to dismiss, (2) whether the motions to dismiss pursuant to section 2 \u2014 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619) raise factual issues in defense which conflict with the well-pleaded facts in the complaint thereby precluding dismissal under a section 2 \u2014 619 motion, and (3) whether an affidavit filed with one of the motions to dismiss was conclusory and should have been stricken.\nPlaintiff\u2019s complaint alleges that in October 1983, plaintiff negotiated for a $3,750,000 line of credit by applying for a loan with two mortgage brokers, B. A. Mortgage Company of Chicago and G. H. Graff and Associates, Inc.; that plaintiff agreed to pay each mortgage broker 1% of the amount of the line of credit if a loan commitment was obtained; and that plaintiff would pay the lender of such a loan an additional 1% of the commitment amount. It also alleges that defendant obtained plaintiff\u2019s application from these mortgage brokers and issued a commitment letter dated November 1, 1983. It further alleges that certain modifications were negotiated and incorporated into the commitment by a letter from defendant dated November 4, 1983; that plaintiff accepted the commitment on November 10, 1983; that defendant confirmed its acceptance on or about November 15, 1983, as indicated by a letter from one of the mortgage brokers attached to the complaint; and that plaintiff paid $37,500 to each mortgage broker and $37,500 to defendant for the issuance of the loan commitment. Both the commitment letter and the modifying letter were attached to the complaint. Plaintiff alleges that these two attachments constitute the entire agreement between the parties concerning the $3,750,000 commitment for a line of credit.\nPlaintiff also alleges in the complaint that it drew $1,250,000 on the line of credit in May 1984; that several other requests for draws on the remainder of the line of credit were made by plaintiff but were rejected by defendant; that the commitment was to remain in full force for one year from the date of acceptance, November 10, 1983; that on October 22, 1984, plaintiff advised defendant that it was in need of a draw of $1,995,000 on the line of credit; that plaintiff, on November 9, 1984, provided defendant \u201cwith all documents and materials necessary and required to fund\u201d the loan and performed \u201call things required to be performed pursuant to the commitment\u201d to obtain the loan; and that defendant failed and refused to fund the loan. Plaintiff then alleges that defendant was unable to meet certain government regulations to be able to fund the entire $3,750,000 commitment; that defendant, knowing of its inability to fund the loan, did not inform plaintiff of this inability; that this failure to advise created a failure of consideration entitling plaintiff to a refund of the commitment fee paid; and that the defendant\u2019s failure to fund the latest draw request defeated the entire purpose of the total commitment, damaging plaintiff in the amount of the commitment fee paid.\nThe letter of commitment purportedly issued by defendant on November 1, 1983, attached as \u201cExhibit A\u201d to the complaint, indicates, in pertinent part, that defendant agreed to furnish a $3,750,000 line of credit to be used to fund second and third mortgages for plaintiff, that this line of credit would be available for 12 months from the date of acceptance, that plaintiff would pay a $37,500 fee for the 12-month term and an additional $37,000 fee for a once-only 12-month extension of the time period if it chose, that each funding on the line of credit was subject to the submission of an MAI appraisal acceptable to defendant, and that this offer only was open until November 3, 1983. Plaintiff\u2019s acceptance of this commitment is purported to be indicated by a letter dated November 4, 1983, written to a mortgage company by defendant, attached as \u201cExhibit B\u201d to the complaint, which included modifications to defendant\u2019s offer and an acknowledgement of the $37,500 commitment fee. \u201cExhibit C\u201d to the complaint is purported to be an acknowledgement of the existence of the line of credit agreement.\nDefendant filed a motion to dismiss under section 2 \u2014 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014 619(a)(9)) contending that plaintiff was barred from recovery as it failed to request the funds within the time period provided for in the agreement. Specifically, the motion asserts that the line of credit agreement governing the transaction was entered into on May 9, 1984, that this line of credit was available only until November 1, 1984, that the agreement required a 30-day notice prior to the request for funds, that plaintiff did not give the proper 30-day notice prior to the expiration of the credit period, and that the required documentation was not provided by plaintiff until after the time period had expired. This motion was supported by the affidavit of William Hale. The affidavit asserted that Hale is the in-house counsel for defendant and that the line of credit agreement, attached to the affidavit and dated May 9, 1984, embodied the terms and conditions of the line of credit established for plaintiff by defendant. The form of this agreement does not resemble the agreement attached to plaintiff\u2019s complaint.\nThe trial court granted plaintiff\u2019s motion to strike the Hale affidavit and allowed defendant 14 days to file an amended affidavit. The court also set the hearing date on defendant\u2019s motion to dismiss for June 3, 1985. On May 21, 1985, defendant filed the amended affidavit of Hale. It was alleged that the facts alleged therein were within his personal knowledge and that the documents attached to the affidavit were business records of defendant kept in the ordinary course of business. Attached to this second Hale affidavit was, again, the \u201cLine of Credit Agreement\u201d along with seven other documents asserted to be business records of defendant which pertained to the credit agreement at issue between plaintiff and defendant.\nOn May 24, 1985, defendant filed a second section 2 \u2014 619(a)(9) motion to dismiss contending that, as plaintiff failed to comply with a condition precedent of the letter of commitment requiring plaintiff to submit to defendant an acceptable MAI appraisal of the property for which the funds would be used, the complaint should be dismissed, apparently because the agreement relied upon by plaintiff in the letter of commitment ceased to exist. Attached to this motion was the affidavit of Michael Maslanka, vice-president of the commercial real estate division with defendant and defendant\u2019s chief real estate appraiser. Maslanka asserted in the affidavit that the MAI real estate appraisal submitted by plaintiff was rejected in October or November 1984 because the appraisal was premised on incorrect and improper information, including the utilization of the wrong definition of \u201cmarket value.\u201d Also attached was a portion of this appraisal and defendant\u2019s definition of \u201cmarket value.\u201d\nOn the same day, defendant filed a third section 2 \u2014 619(a) motion to dismiss. This third motion set forth three reasons for the dismissal of the complaint: the failure to attach the entire and relevant documents to the complaint; the omission of language in the letter of commitment attached to the complaint; and the failure to timely forward the necessary documents to defendant to qualify for the funding. No affidavit was attached to this motion although it referred to the documents attached to the Hale affidavit.\nOn June 3, 1985, plaintiff filed another motion to strike the second Hale affidavit, arguing that it was both conclusory and insufficiently supported with facts to serve as the foundation for submitting the exhibits attached to the affidavit. The trial court heard the arguments of the parties on plaintiff\u2019s motion to strike the Hale affidavit followed by arguments on defendant\u2019s second motion to dismiss the complaint for failing to comply with a condition precedent of the agreement. Plaintiff appeared to object to proceeding on this motion as it was not the first motion to dismiss filed, but proceeded anyway. The court denied the motion to strike the affidavit and granted defendant\u2019s motion to dismiss, finding that plaintiff failed to comply with a condition precedent to the agreement.\nOn June 21, 1985, however, plaintiff filed a motion to vacate and reconsider the June 3 order. It argued that defendant should be estopped from asserting the alleged failure of the condition precedent because defendant accepted other nonconforming appraisals on other occasions and because defendant did not originally refuse to fund the loan for this reason. Attached to this motion was the affidavit of Raymond Petersen, a vice-president with plaintiff, who asserted that he arranges the financing for plaintiff, that defendant never notified him that the appraisal was unsatisfactory, and that the letter received rejecting plaintiff\u2019s funding request, also attached to the affidavit, did not state that the reason was an unacceptable MAI appraisal but specified three other reasons.\nAfter the submission of memoranda and the presentation of arguments on this motion on September 5, 1985, the trial court vacated its June 3 order, denied defendant\u2019s second motion to dismiss, and continued the motion to strike the Hale affidavit for further consideration. Plaintiff then filed responses to the remainder of defendant\u2019s motions in which it argued that defendant waived consideration of the two remaining motions to dismiss by proceeding on one, that the remaining motions are contradictory and are based op insufficient information, and that the Hale affidavit should be dismissed. Thereafter, on February 10, 1986, although no transcript of a hearing was made part of this record, the trial court dismissed plaintiff\u2019s complaint with prejudice without specifying which motion was granted. Plaintiff\u2019s subsequent motion requesting the trial court to state which of the two motions to dismiss was granted on February 10 was denied.\nWe initially consider plaintiff\u2019s contention, presented without citation of authority, that it was improper for the trial court to consider defendant\u2019s remaining section 2 \u2014 619 motions to dismiss once it had denied one of defendant\u2019s section 2 \u2014 619 motions to dismiss. Plaintiff further argues that the second and third motions to dismiss were filed without leave of court, that these two motions were filed beyond the time for pleading, and that none of the motions were consolidated.\nSection 2 \u2014 620 of the Code of Civil Procedure provides that \u201c[t]he form and contents of motions, notices regarding the same, hearings on motions, and all other matters of procedure relative thereto, shall be according to rules.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 620.) The supreme court rules, however, do not specifically address all the objections plaintiff raises to the procedure followed below. When a motion is filed within the time for pleadings, Supreme Court Rule 181(a) does provide, however, that \u201canother appropriate motion\u201d shall be filed within the time the court directs in the order disposing of the motion. (87 Ill. 2d R. 181(a).) As the Code of Civil Procedure is to be liberally construed to speedily and finally reach an end to the controversy according to the substantive rights of the parties (Ill. Rev. Stat. 1985, ch. 110, par. 1 \u2014 106), Rule 181(a) clearly demonstrates that additional motions to dismiss can be filed with the trial court. We believe that as the practice of filing of multiple section 2 \u2014 619 motions to dismiss is not prohibited by the supreme court rules, it was within the trial court\u2019s discretion to consider multiple motions for dismissal and to permit the filing of subsequent motions to dismiss beyond the initial time for pleading. (See, e.g., Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 253-54, 433 N.E.2d 1350; Rubinkam v. MacArthur (1939), 302 Ill. App. 71, 79, 23 N.E.2d 348; Municipal Employees Insurance Association v. Taylor (1939), 300 Ill. App. 231, 236-37, 20 N.E.2d 835.) The other objections to the motion procedure utilized below are without merit, and, furthermore, plaintiff has not shown any prejudice resulting from the practice of presenting and ruling on defendant\u2019s motions. See Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 253, 433 N.E.2d 1350.\nNext, we consider plaintiff\u2019s argument that all of defendant\u2019s section 2 \u2014 619 motions to dismiss raise factual issues constituting defenses which conflict with well-pleaded facts in the complaint rather than raising affirmative matter, thereby precluding dismissal pursuant to a section 2 \u2014 619 motion. Plaintiff further maintains that as the affirmative matters asserted in the two remaining motions to dismiss the complaint do not negate the alleged cause of action completely, the challenge presented in the motions is actually to the factual sufficiency of the complaint and cannot be brought pursuant to section 2\u2014 619.\nThe purpose of section 2 \u2014 619 is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed questions of fact. (See Ill. Ann. Stat., ch. 110, par. 2 \u2014 619, Historical & Practice Notes, at 662 (Smith-Hurd 1983); see also Dangeles v. Marcus (1978) 57 Ill. App. 3d 662, 667, 373 N.E.2d 645.) Subsection (a)(9) provides as a ground for dismissal \u201c[t]hat the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619(a)(9).) Although the affirmative defenses delineated in section 2 \u2014 619 are not exclusive, where the \u201caffirmative matter\u201d is merely evidence upon which defendant expects to contest an ultimate fact stated in the complaint, section 2 \u2014 619 should not be used. Hayna v. Arby\u2019s, Inc. (1981), 99 Ill. App. 3d 700, 710, 425 N.E.2d 1174; Connelly v. Estate of Dooley (1981), 96 Ill. App. 3d 1077, 1082, 422 N.E.2d 143; Dangeles v. Marcus (1978), 57 Ill. App. 3d 662, 667, 373 N.E.2d 645.\nAll three of defendant\u2019s section 2 \u2014 619 motions to dismiss raised defenses to plaintiff\u2019s cause of action based on the pleadings and exhibits attached to the complaint showing the existence of a letter of commitment to fund a line of credit in return for a certain fee. Defendant\u2019s motions asserted defenses that plaintiff failed to request the funds within the time period provided for in the agreement, that plaintiff failed to comply with a condition precedent of the letter of commitment requiring plaintiff to submit an acceptable appraisal, that plaintiff failed to timely forward the necessary documents to defendant to qualify for funding, that plaintiff failed to attach to its complaint the entire agreement and relevant acceptance and approval endorsement, and that the letter of commitment attached to the complaint omits relevant language. These defenses raise factual issues attacking the allegations in the complaint which should not be resolved by a section 2 \u2014 619 motion to dismiss.\nDefendant contends for the first time on appeal that, although it never moved to dismiss the complaint pursuant to section 2 \u2014 615 (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 615) below, the dismissal of plaintiff\u2019s complaint should be affirmed because plaintiff wholly failed to state a cause of action in its complaint. Defendant argues that the complaint is deficient in several respects and maintains that the sufficiency of a complaint which wholly and absolutely fails to state a cause of action may be raised for the first time on appeal.\nSection 2 \u2014 612(c) provides that \u201c[a]ll defects in pleadings, either in form or substance, not objected to in the trial court are waived.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 612(c); see O\u2019Brien v. Township High School District 211 (1980), 83 Ill. 2d 462, 466, 415 N.E.2d 1015.) It has been stated, however, that an exception to this waiver rule exists if it appears as a matter of law that a complaint wholly fails to state a cause of action. (See, e.g., Torres v. Divis (1986), 144 Ill. App. 3d 958, 967, 494 N.E.2d 1227; People ex rel. Difanis v. Futia (1978), 56 Ill. App. 3d 920, 925, 373 N.E.2d 530; Ill. Ann. Stat., ch. 110, par. 2 \u2014 612, Historical & Practice Notes, at 299 (Smith-Hurd 1983); see also Lasko v. Meier (1946), 394 Ill. 71, 73-75, 67 N.E.2d 162.) Even assuming the complaint here imperfectly states a cause of action, the allegations of the complaint do not wholly and absolutely fail to state any cause of action to warrant a dismissal when raised for the first time on appeal.\nPlaintiff\u2019s complaint alleges the existence of the line of credit agreement and attaches the documents purported to represent the terms and conditions of the contract, defendant\u2019s breach by refusing to fund a loan request under the contract, plaintiff\u2019s performance of all its conditions including the fee payment and submission of the required documents, and the existence of damages suffered as a result of defendant\u2019s breach. A factual situation would appear to be presented in which plaintiff\u2019s refusal to fund a loan pursuant to a line of credit agreement was a breach of that agreement. Likewise, although plaintiff failed to set forth the specific governmental regulations defendant was alleged to not have complied with, this is merely a technical defect and not a defect in substance, which, if raised below, could have been corrected by an amended pleading. The reasonable inferences flowing from this complaint present a sufficient factual situation on which to base the cause of action, and any formal defects could have been corrected by an amended pleading. It does not appear that no set of facts could be proved under this pleading which would entitle plaintiff to the requested relief.\nFor the foregoing reasons, the judgment of the circuit court dismissing plaintiff\u2019s complaint is reversed, and the cause is remanded for further proceedings. In view of this disposition of the case, it is unnecessary to determine the further issue raised by plaintiff on appeal concerning the sufficiency of the second Hale affidavit filed with one of defendant\u2019s motions to dismiss.\nReversed and remanded.\nUNVERZAGT and INGLIS, JJ., concur.", "type": "majority", "author": "JUSTICE REINHARD" } ], "attorneys": [ "Harry Golter and Robert S. Solomon, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellant.", "Douglas Drenk and David Drenk, both of Guerard & Drenk, Ltd., of Wheaton, for appellee." ], "corrections": "", "head_matter": "INLAND REAL ESTATE CORPORATION, Plaintiff-Appellant, v. LYONS SAVINGS & LOAN, Defendant-Appellee.\nSecond District\nNo. 2\u201486\u20140281\nOpinion filed March 31, 1987.\nHarry Golter and Robert S. Solomon, both of Wildman, Harrold, Allen & Dixon, of Chicago, for appellant.\nDouglas Drenk and David Drenk, both of Guerard & Drenk, Ltd., of Wheaton, for appellee." }, "file_name": "0848-01", "first_page_order": 870, "last_page_order": 877 }