{ "id": 3277829, "name": "DANIEL F. McCarthy, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee", "name_abbreviation": "McCarthy v. Allstate Insurance", "decision_date": "1979-09-18", "docket_number": "No. 78-249", "first_page": "320", "last_page": "325", "citations": [ { "type": "official", "cite": "76 Ill. App. 3d 320" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "298 N.E.2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. App. 3d 817", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2932529, 2929625 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/11/0817-02", "/ill-app-3d/11/0817-01" ] }, { "cite": "338 N.E.2d 912", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 943", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2870887 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0943-01" ] }, { "cite": "374 N.E.2d 1277", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5625692 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/0847-01" ] }, { "cite": "239 N.E.2d 330", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "96 Ill. App. 2d 432", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2536704 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/96/0432-01" ] }, { "cite": "368 N.E.2d 663", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 331", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3395136 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0331-01" ] } ], "analysis": { "cardinality": 616, "char_count": 11825, "ocr_confidence": 0.91, "pagerank": { "raw": 1.0103095995128043e-07, "percentile": 0.5419825634621941 }, "sha256": "8c3f5228e16bbbb0f654cc7473c3d337123f6a236c467e1513a82d1b730737bc", "simhash": "1:bedbccc37d9c9ac7", "word_count": 1878 }, "last_updated": "2023-07-14T15:19:59.772889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DANIEL F. McCarthy, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE PERLIN\ndelivered the opinion of the court:\nPlaintiff, Daniel F. McCarthy, appeals from an order entered by the circuit court of Cook County granting defendant Allstate Insurance Company\u2019s amended motion to strike and dismiss plaintiff\u2019s second amended complaint. The sole issue presented for review is whether the trial court erred in dismissing plaintiff\u2019s second amended complaint.\nFor the reasons hereinafter set forth, we reverse and remand the cause for proceedings not inconsistent with this opinion.\nPlaintiff filed an action in circuit court arising out of alleged nonpayment of rent by defendant to plaintiff. Plaintiff\u2019s second amended complaint sets forth two counts, one requesting reformation of the written lease between the parties, and the other requesting specific performance of the reformed lease. The following is a summary of the allegations in plaintiff\u2019s complaint:\nPlaintiff was the owner and lessor of an office building in Skokie, Illinois. Defendant was the lessee of a portion of that building. Defendant\u2019s tenancy arose pursuant to a written lease which provided for a five-year term (commencing on October 1, 1972, and terminating on September 30,1977) for the rental of 2,150 square feet at rental payments of $1,075 per month.\nOn December 27, 1973, and again on February 21, 1974, defendant through Mr. Barker, an employee of defendant with whom plaintiff had previously dealt concerning rental matters, requested additional space in the office building. This additional space was needed in the autumn of 1974. On April 19,1974, Mr. Shimanek, property manager for defendant, verbally confirmed this request. In order to provide the additional space requested by defendant, plaintiff notified two other tenants, Honeywell and Streater, that their leases would not be renewed upon expiration.\nIn September 1974 either Mr. Barker or Mr. Shimanek informed plaintiff that defendant wished to move their offices to another location rather than expanding its space in plaintiff\u2019s building. From September 16, 1974, until November 10, 1974, at the request of defendant, plaintiff negotiated various \u201csubstitutions of rental space.\u201d Pursuant to these negotiations, Blue Cross moved into defendant\u2019s 2,150 square feet and defendant agreed to become obligated to pay rent on the 1,697 square feet vacated by Blue Cross until plaintiff could rent the space. Moreover, defendant also agreed to become liable for a portion of the Honeywell space that remained unoccupied. On January 10, 1975, plaintiff advised defendant, in writing, that defendant\u2019s rental payments, pursuant to the \u201csubstitutions of rental space,\u201d were *1,062.46 per month. On January 14, 1975, Mr. Shimanek met with plaintiff and verbally agreed to the above terms.\nDefendant then paid to plaintiff the following sums: February 1975, *1,075; March 1975, *2,710.13; April 1975, *2,710.13; May 1975, *2,710.13. On May 7, 1975, plaintiff, by letter, advised defendant that the above payments of *9,205.39 were *3,444.11 in excess of the total then due. Plaintiff advised defendant to discontinue payments for three months in order to balance the account. Thereafter defendant failed to make any payments to plaintiff. On November 17,1975, plaintiff forwarded a letter and statement of account to defendant requesting an amount then allegedly due of *4,602.10. On November 24, 1975, defendant wrote to plaintiff stating that it disagreed with the amounts claimed and indicated that it wished to cancel the lease agreement with no further obligations by either party. On December 3, 1975, plaintiff, by letter, indicated to defendant that he was unwilling to cancel the lease agreement and requested payment.\nOn June 15, 1976, plaintiff filed a complaint against defendant in the circuit court of Cook County, Municipal Department. On August 4,1976, defendant filed a motion to strike and dismiss alleging, inter alia, that the complaint did not contain a plain and concise statement of plaintiff\u2019s purported cause of action as is required by section 33(1) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 33(1)) and that the complaint on its face was barred by the Statute of Frauds (Ill. Rev. Stat. 1975, ch. 59, par. 1). This motion was never heard. On November 1,1976, pursuant to plaintiff\u2019s motion, the cause was transferred to the chancery division and plaintiff therein filed an amended complaint. On November 29, 1976, defendant filed a motion to strike and dismiss, alleging that the amended complaint did not contain a plain and concise statement of plaintiff\u2019s purported cause of action as required by section 33(1) of the Civil Practice Act; that the complaint contained irrelevant and immaterial subject matter in violation of section 45(1) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 45(1)); and that the claim was unenforceable under the Statute of Frauds. On February 1,1977, defendant was granted leave to amend its motion to strike and dismiss. On March 3, 1977, defendant filed a memorandum in support of its motion to strike and dismiss but did not amend the motion itself. On June 8,1977, plaintiff was granted leave to amend, and on September 6,1977, the second amended complaint was filed. On October 4,1977, defendant\u2019s motion to strike and dismiss was denied and defendant was given 28 days to file an amended motion. On November 3, 1977, defendant filed an amended motion to strike and dismiss alleging that plaintiff\u2019s second amended complaint failed to contain a clear and concise statement of the alleged cause of action as required by section 33(1) of the Civil Practice Act, contained immaterial and irrelevant subject matter in violation of section 45(1) of the Civil Practice Act and contained improper and inconsistent allegations. Defendant further alleged that:\n\u201cThe complaint on its face evinces that it is unenforceable under the provisions of the Statute of Frauds, Ill. Rev. Stat., ch. 59, for Paragraph 26 admits that unidentified Verbal acts\u2019 were in violation of the Statute of Frauds. However, defendant cannot fully determine the insufficiency of the complaint in terms of the Statute of Frauds, or other issues of law because the complaint cannot be understood in this regard in its present form.\u201d\nOn November 15, 1977, defendant\u2019s amended motion to strike and dismiss plaintiff\u2019s second amended complaint was granted. Dismissal was with prejudice and without leave to amend.\nThe Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, pars. 1-94) establishes the boundaries within which a court operates in determining the sufficiency of pleadings. Section 33(1) states that \u201c[a] 11 pleadings shall contain a plain and concise statement of the pleader\u2019s cause of action. e \u201d *\u201d Section 33(3) provides that \u201c[pjleadings shall be liberally construed with a view to doing substantial justice between the parties.\u201d Section 42(2) states that \u201c[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.\u201d These sections are designed and intended to permit controversies to be determined according to substantial justice between the parties and not according to the technicalities or niceties of pleading. People v. Northbrook Sports Club (1977), 53 Ill. App. 3d 331, 368 N.E.2d 663, citing Fitzgerald v. Van Buskirk (1968), 96 Ill. App. 2d 432, 239 N.E.2d 330.\nThe crux of defendant\u2019s argument both below and on appeal is that the complaint is \u201cso confusing that parts of it are unintelligible\u201d and \u201cthat it would be impossible for Allstate to respond to it properly.\u201d Plaintiff maintains that the pleading is not incomprehensible but merely involves a highly complex series of transactions which defendant is capable of understanding but feigns ignorance of the detail. We are not persuaded by defendant\u2019s argument. The factual allegations contained in plaintiff\u2019s second amended complaint are adequate to inform defendant of the nature of the claim it is called upon to meet. Although the complaint could have been modified in both length and clarity without loss of the essential ingredients, we conclude that the nature of the complaint was in fact comprehensible and deserving of response. City of West Chicago v. Clark (1978), 58 Ill. App. 3d 847, 374 N.E.2d 1277, upon which defendant relies, is distinguishable. In Clark the trial court dismissed the pleading because, inter alia, it did not contain a plain and concise statement of the pleader\u2019s cause of action. The pleading contained more than 400 pages consisting of a 53-paragraph complaint with some 30 exhibits appended thereto. The appellate court found that the complaint was replete with argumentative and conclusory language, was excessively verbose and should obviously have been stricken because of the futility of attempting to answer it. The court also held that the complaint had no basis in law. In the case at bar the complaint contains 19 pages consisting of a 28-paragraph complaint with six exhibits appended thereto. Defendant did not allege below nor does defendant argue on appeal that plaintiff failed to allege facts sufficient to state a cause of action. Moreover, it would appear that although the evidentiary facts pleaded by plaintiff were not necessary to the pleading, they did not detract from plaintiff\u2019s cause of action. Although far from being a model pleading and containing surplus allegations which could have been stricken on a proper motion, we believe that the complaint was comprehensible. If the necessary facts appear in the complaint but are encumbered with unnecessary matter or are insufficiently stated, the motion should ask for a correction of the pleading by striking out specified immaterial matter and making the pleading more definite and certain in specified particulars. See Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 338 N.E.2d 912.\nDismissal of a cause of action is adrastic punishment to be imposed upon a litigant. (Johnson v. Chicago & Western Indiana R.R. Co. (1973), 11 Ill. App. 3d 817, 298 N.E.2d 3.) \u201cSubstantial justice\u201d would not be served in the instant case by dismissing a complaint which reasonably informed defendant of the equitable claims asserted by plaintiff. Therefore we conclude that defendant\u2019s amended motion to strike and dismiss was improvidently granted.\nWe do not reach the issue of whether this action is barred by the Statute of Frauds since this issue was not considered by the trial court. Defendant in its amended motion to strike and dismiss argues only that there may be a Statute of Frauds issue but that defendant \u201ccannot fully determine the insufficiency of the complaint in terms of the Statute of Frauds, or other issues of law, because the complaint cannot be understood in this regard in its present form.\u201d As a consequence, we express no opinion as to viability of this issue.\nBased upon the foregoing, we reverse and remand the cause for further proceedings not inconsistent with this opinion.\nReversed and remanded.\nDOWNING and HARTMAN, JJ., concur.\nThe order of dismissal did not state the grounds relied upon by the trial court.\nStreater\u2019s lease expired on March 30, 1974. Honeywell\u2019s lease expired on September 15, 1974.\nDefendant\u2019s monthly rental was calculated as follows: 1,697 square feet of the space vacated by Blue Cross plus 292 square feet of the former Honeywell space at *6.41 per square foot, totaling *1,062.46 per month.", "type": "majority", "author": "Mr. JUSTICE PERLIN" } ], "attorneys": [ "Allen H. Meyer, of Chicago, for appellant.", "Duane C. Quaini and Jeffrey Lennard, both of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellee." ], "corrections": "", "head_matter": "DANIEL F. McCarthy, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellee.\nFirst District (2nd Division)\nNo. 78-249\nOpinion filed September 18, 1979.\nAllen H. Meyer, of Chicago, for appellant.\nDuane C. Quaini and Jeffrey Lennard, both of Sonnenschein, Carlin, Nath & Rosenthal, of Chicago, for appellee." }, "file_name": "0320-01", "first_page_order": 342, "last_page_order": 347 }