author: PRESIDING JUSTICE LaPORTA

text:
      In re PETITION OF FRANK FILIPPELLI et al. (Frank J. Filippelli et al., Petitioners-Appellees; Mary Christine Woodham, Respondent-Appellant).
    First District (6th Division)
    No. 1—90—0388
    Opinion filed December 21, 1990.

      Briskman & Briskman, of Chicago (Robert I. Briskman, of counsel), for appellant.
    Handel, Lipton & Stevenson, Ltd., of Chicago (Richard A. Lifshitz and Carolyn E. Winter, of counsel), for appellees.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Petitioners, Frank J. and Linda M. Filippelli, brought a petition to adopt A.J.W., and respondent, A.J.W.’s natural mother, moved to dismiss the petition. The trial court on September 6, 1989, denied respondent’s motion to dismiss and certified for interlocutory appeal the question raised by the motion. Respondent did not file a petition for leave to appeal within 14 days and proceeded with a trial on respondent’s fitness as a parent. At the conclusion of the trial on January 10, 1990, the court found respondent unfit and terminated her parental rights. Respondent has filed an interlocutory appeal of the September 6 order denying her motion to dismiss the petition to adopt and of the January 10 order which found respondent an unfit parent and terminated her parental rights concerning A.J.W.

The record reveals that A.J.W., a four-year-old child, has lived with petitioners since March 12, 1989. On March 21, 1989, petitioners filed a petition to adopt A.J.W. In their initial petition, petitioners alleged that they were unrelated to A.J.W., who had been in their custody since March 12, 1989; the biological father was unknown; the respondent was under no legal disability and had surrendered the minor child to the petitioners; and the respondent had indicated her willingness to consent to the adoption of A.J.W. by petitioners. The petition asserted further that the unknown father was an unfit parent in that he had abandoned and deserted his child; failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of his child; and his consent to the adoption was not required.

On April 5, 1989, petitioners filed their first amended petition for adoption, which asserted that respondent’s parents had surrendered the minor child to petitioners; respondent was an unfit parent in that she had failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; and her consent to the adoption was not required.

On June 14, 1989, petitioners filed an amendment and supplement to the first amended petition to adopt which alleged that respondent had placed the child with her parents, Kenneth and Mary Woodham, who thereafter placed the child with petitioners on March 12, 1989; respondent was an unfit parent in that she had abandoned the child and had an habitual addiction to drugs for at least one year immediately prior to the commencement of the proceedings; and Ronald Karp, the biological father, was an unfit parent in that he had abandoned the child and deserted his child for a period in excess of three months immediately preceding the filing of the amendment and had failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.

The matter then proceeded to trial on the issue of the fitness of respondent and Karp. On July 20, 1989, respondent made an oral motion to dismiss the first amended petition to adopt, as subsequently supplemented and amended. Petitioners filed a memorandum of law in opposition to respondent’s motion and addressing the applicability of the third district’s decision in Johnson v. Burnett (1989), 182 Ill. App. 3d 574, 538 N.E.2d 892. Respondent filed a memorandum of law in reply to that filed by petitioners.

On September 6, 1989, the trial court denied respondent’s motion to dismiss the petition to adopt, but found that A.J.W. was not available for adoption and would not be available for adoption until there was a finding his parents were unfit. The court also indicated that the case should go forward on the issue of the fitness of A.J.W.’s parents. The court held, pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308), that its order denying the motion to dismiss involved a question of law as to which there was substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation, and the court certified this question for interlocutory appeal.

Respondent did not file a petition for leave to appeal within 14 days as required by Rule 308, and instead continued to litigate the question of her parental unfitness as alleged by petitioners.

At the trial on respondent’s fitness, several witnesses, including Linda Jo Seglar, Dr. Donald Sellers, Louise Kordat, Dr. Bernard Newman, Janet Kerwin, and Miriam Dedeian, testified that respondent had a history of drug abuse and had been addicted to alcohol and drugs for at least one year prior to the commencement of the proceedings. Of all the witnesses who testified at the trial, only respondent testified that she never abused or had been addicted to drugs. Respondent did acknowledge, however, that she had used marijuana and had snorted and freebased cocaine during her pregnancy with her daughter who was two years younger than A.J.W.

The petitioners testified that they had been told by respondent’s sister and parents that respondent would consent to their adoption of A.J.W.

Respondent testified that she did not know how her son came to live with the petitioners, but that she had been away from her home for several weeks because she was staying in Brookfield, Illinois, watching the home of someone else. Respondent stated that she first learned in the last week of May that her son was living with the petitioners. Respondent’s sister and parents testified that they had never told petitioners that respondent would consent to their adoption of A.J.W.

On January 10, 1990, the court entered an order finding that respondent had left A.J.W. with her parents, who subsequently placed the child with the petitioners for the purpose of their adopting the child. The court also found that petitioners had proved by clear and convincing evidence that respondent was habitually addicted to alcohol and drugs, other than those prescribed by a physician, for at least one year immediately prior to the commencement of the proceedings.

The court terminated respondent’s parental rights concerning A.J.W., and the matter was continued for further proceedings to determine the best interests of the child in allowing the petition for adoption. The court subsequently entered an order finding Ronald Karp in default and terminating his parental rights concerning A.J.W. Respondent filed the instant interlocutory appeal on February 8, 1990.

Respondent appeals the September 6, 1989, order denying her motion to dismiss the petition to adopt. Initially, we note that although the question raised by the motion was certified for appeal under Supreme Court Rule 308, respondent failed to file a petition for leave to appeal within 14 days as required by that rule. Consequently, appellate jurisdiction cannot be invoked under Rule 308, and this interlocutory order is not appealable under this rule. Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 403 N.E.2d 704; Rotogravure Service, Inc. v. R.W. Borrowdale Co. (1975), 36 Ill. App. 3d 606, 344 N.E.2d 554.

Respondent contends that the September 6, 1989, order is appealable under Supreme Court Rule 304(b)(1), which provides that a party may appeal a judgment or order entered in the administration of an estate, guardianship, or similar proceeding which finally determines a right or status of a party (107 Ill. 2d R. 304(b)(1)). This contention is without merit because a denial of a motion to dismiss does not finally determine a right or status of a party. Rotary Club v. Harry F. Shea & Co. (1983), 120 Ill. App. 3d 988, 994, 458 N.E.2d 1002, 1006.

We must also reject respondent's assertion that this court can review the propriety of the September 6, 1989, order under Supreme Court Rule 307(a)(6) (107 Ill. 2d R. 307 (a)(6)) because it was “attendant to” the January 10, 1990, order which terminated her parental rights. A denial of a motion to dismiss is not appealable under any of the exceptions set forth in Rule 307. (Rotary Club, 120 Ill. App. 3d at 994, 458 N.E.2d at 1006.) Rule 307 allows only the review of the order from which a party takes an appeal, and such an appeal does not open the door to a general review of all orders entered by the trial court up to the date of the order that is appealed. Rosinia v. Gusmano (1980), 90 Ill. App. 3d 882, 887, 414 N.E.2d 21, 24; Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 1151, 405 N.E.2d 1316, 1321.

Because respondent has failed to properly invoke the jurisdiction of this court to review the order of September 6, .1989, that interlocutory order is not now subject to review.

Respondent also appeals the order of January 10, 1990, which found that respondent was an unfit parent in that she was habitually addicted to alcohol and drugs, other than those prescribed by a physician, for at least one year immediately prior to the commencement of the proceedings, and which terminated her parental rights concerning A.J.W.

This order is appealable under Supreme Court Rule 307(a)(6), which provides for review of interlocutory orders terminating parental rights. Yet, respondent has not argued that the court’s determination of unfitness was against the manifest weight of the evidence. Consequently, respondent has waived review of that issue. 107 Ill. 2d R. 341(e)(7); Burys v. First Bank (1989), 187 Ill. App. 3d 384, 543 N.E.2d 253.

In urging reversal of the January 10, 1990, order, respondent argues that petitioners could not file their petition before the trial court had entered a finding that respondent was unfit.

In support of this claim, respondent relies upon Johnson v. Burnett (1989), 182 Ill. App. 3d 574, 538 N.E.2d 895, where the third district held that section 8 of the Adoption Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 1510) requires that the parents be found unfit prior to the filing of a nonrelated party’s adoption petition. (Johnson, 182 Ill. App. 3d at 578, 538 N.E.2d at 895.) We respectfully disagree with this decision.

Section 5A of the Adoption Act provides, in relevant part, that a proceeding to adopt an unrelated child shall be commenced by the filing of a petition within 30 days after such child has become available for adoption. (Ill. Rev. Stat. 1989, ch. 40, par. 1507A.) The definition of a person available for adoption includes a child to whose adoption no consent is required pursuant to section 8 of the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 1501F(b).) Section 8(a)(1) of the Act provides that consent is not required where the person whose consent would otherwise be required shall be found by the court, by clear and convincing evidence, to be an unfit person as defined in section 1 of the Act. Ill. Rev. Stat. 1989, ch. 40, par. 1510(a)(1).

An unfit person is defined as any person whom the court shall find to be unfit by reason of habitual drunkenness or addiction to drugs, other than those prescribed by a physician, for at least one year immediately prior to the commencement of the unfitness proceeding. (Ill. Rev. Stat. 1989, ch. 40, par. 1501D(k).) Section 5B provides that a petition to adopt a nonrelated child shall state that the person or agency having authority to consent under section 8 has consented, or has indicated willingness to consent, to the adoption of the child by the petitioners, or that the person having authority to consent is an unfit person and the ground therefor. Ill. Rev. Stat. 1989, ch. 40, par. 1507B(j).

It has been held that the Adoption Act contemplates a two-step process: first, the filing of a petition, followed as soon as possible by a hearing, and then if consent or unfitness is found, the entry of an interim order; second, ordinarily after a six-month waiting period, the final decree of adoption. (In re Adoption of Burton (1976), 43 Ill. App. 3d 294, 302, 356 N.E.2d 1279, 1286.) This procedure was followed in Mateyka v. Smith (1964), 47 Ill. App. 2d 1, 361 N.E.2d 707, and appears to be the only method under the Adoption Act by which an adoption can be accomplished where the parents are unfit and refuse to consent.

In every adoption case, there must be (1) a termination of parental rights by reason of consent or a finding of unfitness, and (2) a determination of whether the best interests of the child would be served by allowing the petition. The court must enter a finding of unfitness before an order of adoption can be entered, but we do not believe that the statutory language mandates that the trial court must enter its finding of unfitness before a petition to adopt can be filed.

We believe that the Adoption Act allows the filing of a petition which alleges unfitness, and the ground therefor, and a subsequent hearing by the court in the adoption proceeding at which the court determines whether the allegation of unfitness has been proved. Ill. Rev. Stat. 1989, ch. 40, pars. 1501D(k), 1507B(j); Mateyka, 47 Ill. App. 2d 1, 361 N.E.2d 707.

The statute does not provide that a finding of unfitness is a condition precedent to the filing of a petition to adopt. Rather, section 5A imposes a 30-day cut-off, or limitation, period and provides that a petition may not be filed at a later date without leave of court and a showing that the failure to timely file was not due to the petitioners’ culpable negligence or their willful disregard of the provisions of that section.

This limitation precludes potential adoptive parents who have custody of the child from procrastinating in the filing of their petition. It provides protection to the child by encouraging potential adoptive parents to act promptly without undue delay and to bar those petitioners who, absent a showing of good cause, fail to demonstrate the appropriate concern and interest in the child to promptly proceed with their petition for adoption. This requirement serves the child’s best interests by promoting certainty of the child’s legal status, emotional and economic stability, and continuity of care.

The Illinois Supreme Court has held that the Adoption Act must be construed as a whole, without isolation of particular sections. In re Estate of Tilliski (1945), 390 Ill. 273, 61 N.E.2d 24.

We believe that the Johnson court did not construe the Act as a whole. That decision did not consider the portion of section 8(a)(1) which indicates that a person’s consent is not required where the person “shall be found” to be unfit by clear and convincing evidence. The phrase “shall be found” is prospective and manifests a legislative intent that the court hold the hearing on fitness within the adoption proceeding following the filing of the petition to adopt. The Johnson decision also did not consider that the Act defines an unfit person as any person whom the court “shall find” to be unfit by reason of habitual drunkenness or addiction to drugs. This definition also indicates that the finding of unfitness is to be made after the petition to adopt has been filed.

In addition, the Johnson court did not address section 5B(j), which provides that a petition to adopt a nonrelated child shall state that the person or agency having authority to consent under section 8 has consented, or has indicated willingness to consent, to the adoption of the child by the petitioners, or that the person having authority to consent is an unfit person and the ground therefor (Ill. Rev. Stat. 1989, ch. 40, par. 1507B(j)). This section clearly contemplates that a petition to adopt may be filed alleging unfitness and the basis for the allegation. This statutory provision does not require that the petition allege that a court of competent jurisdiction had previously entered a finding of unfitness, but only that unfitness be alleged along with the ground therefor.

Finally, the Johnson decision offered no guidance as to how unfitness is to be alleged and proven. The Adoption Act does not provide for the filing of a “petition for a determination of unfitness.” Thus, if a petition to adopt may not be filed until a finding of unfitness has been entered, a petitioner has no device to bring the allegedly unfit parent before the court so such a finding could be made.

We note that in its order of January 10, 1990, the trial court specifically found that petitioners had proven by clear and convincing evidence that respondent was unfit. Consequently, even if we were to hold that the petition had been filed prematurely, the petitioners would be free to file an amended petition (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 616), and the trial court’s decision of January 10, 1990, would not be altered.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE CHICAGO HOUSING AUTHORITY, Plaintiff-Appellant, v. MYTRA TAYLOR, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—0614
    Opinion filed December 21, 1990.

      Keck, Mahin & Cate, of Chicago (F. Willis Caruso, Jill E. Egans, and Catherine A.T. Nelson, of counsel), for appellant.
    Edwin F. Mandel Legal Aid Clinic, of Chicago (Catherine C. MacCarthy and Marc Stahl, of counsel), for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

The plaintiff, Chicago Housing Authority, brought an action in forcible entry and detainer to recover possession of an apartment occupied by defendant, Mytra Taylor. Defendant filed a motion to dismiss the complaint, asserting that the plaintiff had waived its right to pursue the action when it served defendant with a second notice and demand for rent and a second complaint. The trial court granted defendant’s motion and dismissed the complaint. On appeal, plaintiff contends that the trial court erred in finding that it had waived its right to pursue its original claim against defendant.

The record reveals that defendant has leased and occupied the subject premises since September 1987. The apartment occupied by defendant was part of a subsidized housing development owned and operated by the plaintiff. On July 20, 1989, plaintiff issued a notice and demand for rent in the amount of $782.79 against defendant which was delivered to defendant's daughter. On August 11, 1989, plaintiff filed a complaint and summons based upon the notice issued July 20, 1989. Defendant was served with this summons and complaint on August 22, 1989. On September 1, 1989, plaintiff obtained a default judgment for possession of the leased premises. Defendant filed a motion to vacate the default judgment which was granted on September 21, 1989.

On September 14, 1989, plaintiff issued a second notice and demand for rent in the amount of $988.39 which was received by defendant on or about September 25, 1989. On November 2, 1989, plaintiff filed a second complaint and summons based upon the notice issued September 14, 1989. This action was voluntarily dismissed by plaintiff at the initial trial call on November 21, 1989.

On November 13, 1989, defendant filed a motion to dismiss the first complaint, contending that the service of the first notice was invalid because the notice was served upon defendant’s 10-year-old daughter. Defendant also filed an answer and affirmative defenses to the first complaint. On December 1, 1989, defendant filed an amended motion to dismiss the first complaint, asserting that the plaintiff had waived its right to pursue the action by serving her with the second notice and with the second complaint. After a hearing, the trial court granted defendant’s amended motion to dismiss, finding that plaintiff had waived its right to pursue the initial action against defendant.

Defendant asserts that after receiving the July notice, she went to the management office several times and attempted to pay her rent, but plaintiff refused to accept her payments. The affidavit of defendant’s mother asserts that on September 29, 1989, and on September 30, 1989, she tendered to plaintiff the amount of rent due on her daughter’s apartment, but plaintiff refused the tendered amounts on both occasions. Plaintiff denies that defendant tendered the rent due and relies on defendant’s deposition testimony that after July 1989, she did not attempt to pay the overdue rent because she knew that plaintiff would not accept it.

It has been held that an act of a landlord which affirms the existence of a lease and recognizes a tenant as his lessee after the landlord has knowledge of a breach of the lease results in a waiver of the landlord’s right to a forfeiture of the lease. McGill v. Wire Sales Co. (1988), 175 Ill. App. 3d 56, 59, 529 N.E.2d 682, 684; Housing Authority v. Little (1978), 64 Ill. App. 3d 149, 150, 380 N.E.2d 1201, 1202.

The question to be decided is what acts constitute a waiver. (Okey, Inc. v. American National Bank & Trust Co. (1981), 96 Ill. App. 3d 987, 993, 422 N.E.2d 221, 225.) The existence of a waiver is essentially a question of intent to be determined by the trier of fact (Glad-Nan Corp. v. Henry’s Drive-In, Inc. (1961), 29 Ill. App. 2d 363, 367, 173 N.E.2d 521, 523), and where a disputed question of fact exists, judgment on the pleadings is improper (Okey, Inc., 96 Ill. App. 3d at 993, 422 N.E.2d at 226).

Evidence of acts which are inconsistent with a declaration of forfeiture may prove a waiver (Okey, Inc., 96 Ill. App. 3d at 993, 422 N.E.2d at 225), and the acceptance of rent is one such inconsistent act (McGill, 175 Ill. App. 3d at 60, 529 N.E.2d at 685; Okey, Inc., 96 Ill. App. 3d at 993, 422 N.E.2d at 225; Housing Authority v. Little (1978), 64 Ill. App. 3d 149, 150, 380 N.E.2d 1201, 1202; Waukegan Times Theatre Corp. v. Conrad (1945), 324 Ill. App. 622, 632, 59 N.E.2d 308, 312).

The question before this court is whether the plaintiff’s service of the second notice and the second complaint constituted a waiver of its right to pursue its initial action against defendant.

The facts in this case are analogous to those presented in Shelby County Housing Authority v. Thornell (1986), 144 Ill. App. 3d 71, 74, 493 N.E.2d 1109, 1111, in which the court held that the mailing of subsequent notices did not operate to waive previous notices. The court found that the landlord had not waived its right to terminate the lease by sending the tenant three successive notices specifying two different dates for termination of the lease and eviction of the premises. The court stated that the subsequent notices merely updated the first, and the tenant could not reasonably have been misled into believing that the landlord had recognized the existence of the tenancy. See also Mitchell v. Tyler (1948), 335 Ill. App. 117, 80 N.E.2d 449 (landlord did not waive its right under the first notice by serving tenant with a 60-day notice of termination of tenancy while prior judgment in forcible entry and detainer was on appeal).

In the instant case, plaintiff had obtained a default judgment for possession of the leased premises on September 1, 1989. At that time, defendant’s tenancy under the lease had been terminated and plaintiff was entitled to possession of the premises. Yet, defendant was still residing in the apartment and had not paid the rent due. We believe that the plaintiff’s issuance of the second notice may be viewed as an update of the first notice, indicating that defendant had 14 days to vacate the premises and that additional rent was due over and above the amount stated in the first notice. Plaintiff has asserted that the issuance of the second notice and the filing of the second complaint were inadvertent. This is supported by the evidence that plaintiff voluntarily dismissed the second action the first time it was called before the court. Thus, a trial court could conclude that the second notice was consistent with plaintiff’s initial action against defendant.

The original action was still pending when the second notice was issued. After receiving the second notice, defendant filed pleadings in the first suit, i.e., an answer, affirmative defenses, and a motion to dismiss alleging invalid service. In addition, defendant testified during her deposition that after July 1989, she did not attempt to pay the overdue rent because she knew that plaintiff would not accept it. These actions do not indicate that defendant believed plaintiff intended to abandon its position in the first suit.

Defendant asserts that she tendered rent payments which were refused by plaintiff. Assuming, arguendo, that defendant’s assertions are true, the repeated refusal of tendered rent payments is indicative that plaintiff was proceeding under the understanding that the lease had been terminated. This conduct is consistent with plaintiff’s claim that it was entitled to possession of the leased premises and negates an inference of waiver of its rights under the first notice.

Defendant cites several cases which involve situations where rent payments were accepted by the landlords after the lease terms had been breached by the tenants. There is no evidence that plaintiff here ever received or accepted any rent from defendant after the July notice had been issued. Consequently, these cases are not controlling here.

Defendant also relies heavily on the decision in Duran v. Housing Authority (Col. 1988), 761 P.2d 180. In that case, the Colorado Supreme Court held that the housing authority’s service of a second notice on the tenant superseded the previous notice and constituted a waiver of the housing authority’s right to terminate the lease.

Yet, we find the facts in Duran to be distinguishable from those in the case at bar. That case was decided after a trial, and the notices were “couched in the language of a proposal” (Duran, 761 P.2d at 184). The notices provided that unless the overdue rent was fully paid within 14 days from the date of delivery of the notice, “the Authority intends to terminate and cancel [the] month to month lease. *** We surely hope that you will make up the rent payments you owe, so that you can remain in your unit.” (Duran, 761 P.2d at 181.) The Duran court limited its decision to factual situations involving “the precise language used” in these notices. Duran, 761 P.2d at 184.

The notices in the case at bar did not contain the language used in the Duran notices and were not framed as proposals. The first notice specified the amount of the rent delinquency and indicated that the tenancy would be terminated if the overdue rent was not paid within 14 days after service of the notice. The notice also stated that only full payment of the rent demanded in the notice would waive the plaintiff’s right to terminate the lease under the notice. The second notice contained similar language, but specified an additional amount of overdue rent which had accrued in the intervening month.

In addition, the tenant in Duran testified that she understood the second 14-day notice to mean the the housing authority’s manager had changed his position regarding the termination of -the tenancy. It was undisputed in Duran that after the eviction action had been filed but prior to the expiration of the second 14-day. notice period, the tenant attempted to pay the overdue rent and, in fact, tendered payment to counsel for the housing authority in open court.

In the case at bar, defendant did not testify that she understood the second notice to mean that plaintiff had changed its position. While there was conflicting evidence as to whether defendant attempted to pay the overdue rent, she testified during her deposition that after July 1989, she made no such attempt because she knew that plaintiff would not accept it. On this evidence, it appears that defendant was not confused about the plaintiffs position and was fully aware that plaintiff intended to pursue its rights under the first notice.

The Duran court specifically noted that although an intention to waive a benefit may be implied by conduct, the conduct itself should be free from ambiguity and clearly manifest the intention not to assert the benefit. (Duran, 761 P.2d at 183.) We do not believe that the plaintiff’s issuance of the second notice clearly manifested an intention not to assert its rights under the first notice. Based on the facts presented in the instant case, we do not believe that the Duran decision is binding here.

Defendant also relies upon Avdich v. Kleinert (1977), 69 Ill. 2d 1, 370 N.E.2d 504, for the proposition that a notice to quit has been held a waiver of the right to enforce a forfeiture under the lease. Avdich does not, however, support defendant’s position. That case held only that where the landlord had given a five-day notice, he waived the right to enforce the lease forfeiture until the expiration of the time stated in the notice. (Avdich, 69 Ill. 2d at 9, 370 N.E.2d at 508.) In the case at bar, there is no allegation that plaintiff filed its action prior to the expiration of the notice period. Consequently, the decision in Avdich is not controlling here.

Defendant has argued that even if plaintiff’s conduct does not constitute a waiver of its rights under the first notice, it should be estopped from asserting those rights because she was misled and confused about her obligations by the second notice. Estoppel is an affirmative defense which must be specifically pled or it is waived. (Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972, 998, 466 N.E.2d 958, 977.) Because defendant failed to present this estoppel argument in the court below, she is precluded from raising it before this court.

In deciding the merits of a motion to dismiss, a trial court cannot determine disputed factual issues without an evidentiary hearing. (Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 501 N.E.2d 156; Premier Electrical Construction Co. v. La Salle National Bank (1984), 132 Ill. App. 3d 485, 477 N.E.2d 1249.) We find that the record before us presents a question of fact as to whether plaintiff intended the second notice to operate as a waiver of its rights under the first notice. Consequently, the cause must be remanded for an evidentiary hearing on this disputed question of fact.

Finally, we address the pending motions which were taken with the case.

Plaintiff brought a motion to recover payment for defendant’s use and occupancy of the leased premises during the pendency of this appeal. Defendant opposed plaintiff’s motion to recover payment of this rent, contending that the appellate court was not the proper forum in which to request such relief and plaintiff was required to file a new eviction action in the trial court in order to recover payment for the use and occupancy of the leased premises during the appeal process. Defendant contended further that the plaintiff was not entitled to an order allowing payment for use and occupancy because it had already entered into a special agreement for rent with the defendant.

On May 15, 1990, this court granted plaintiff’s motion to recover payment for the use and occupancy of the leased premises during the pendency of the appeal and ordered defendant to pay the previously accrued rent which totalled $1,456.96 as of April 1990. Defendant filed a motion to reconsider that ruling.

In her motion for reconsideration, defendant asserted that in April 1990, after the plaintiff had filed its notice of appeal in this case, plaintiff and defendant settled the underlying rent dispute by entering into a rent repayment plan whereby plaintiff agreed not to evict defendant from the leased premises and defendant agreed to enter the Protective Payee Program of the Illinois Department of Public Aid. Defendant asserted that under this plan, her monthly assistance payments were to be controlled by her mother, a State-approved public payee obligated to pay one-half of defendant’s assistance payment directly to the plaintiff for 10 months to pay current and delinquent rent. Defendant asserted that because she did not have $1,456.96, she could not comply with this court’s order of May 15, 1990, and requested that portion of the order be reconsidered or modified. Defendant also requested that the court strike that portion of the order which stated that acceptance of rent would not serve to reinstate the tenancy.

On June 20, 1990, defendant filed a motion to remand this action to the trial court for an evidentiary hearing, alleging that there existed a factual question as to whether the parties entered into a settlement agreement of the rent dispute in April 1990. Plaintiff opposed defendant’s motion for remand, denying that a settlement agreement had been reached and asserting that the issue for review centered on the question of the plaintiff’s waiver of its rights in the initial action. Plaintiff asserted further that a remand for an evidentiary hearing would serve only to delay the litigation.

We reject defendant’s claim that this court did not have authority to enter the order of May 15, 1990, requiring her to make payment for the use and occupancy of the leased premises during the pendency of this appeal.

Supreme Court Rule 366(5) provides that the reviewing court has the power to enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief, including a remandment, a partial reversal, the order of a partial new trial, the entry of a remittitur, for the enforcement of a judgment, that the case may require. 107 Ill. 2d R. 366(5).

This rule affords the reviewing court the power to enter an order requiring a tenant who continues to reside in the rental unit to make rent payments which are due and owing for the use and occupancy of an apartment during the pendency of an appeal. Consequently, defendant’s argument that this court had no authority to enter the May 15,1990, order is without merit.

Defendant has also asserted that the order of May 15, 1990, should be modified or the cause remanded for an evidentiary hearing because the parties reached a settlement of the rent dispute in April 1990. Plaintiff denies that any settlement agreement was ever reached, but acknowledged at oral argument that some payments have been made during the pendency of this appeal.

The existence of a settlement agreement is a disputed question of fact that was raised after the notice of appeal was filed and is outside the record before us. We have already determined that this cause must be remanded for a determination of plaintiff’s intent in issuing the second notice and in filing the second complaint. On remand, the trial court should consider and take appropriate action as to all matters before it, including the question of whether a settlement agreement had been reached by the parties.

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

EGAN and RAKOWSKI, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    HCA HEALTH SERVICES OF THE MIDWEST, INC., d/b/a Riverside Hospital, Plaintiff-Appellant, v. SHEILA ROSNER et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—90—0642
    Opinion filed December 21, 1990.

      McKenzie & McKenzie, P.C., of Chicago (Kevin D. Sprow and Robert E. McKenzie, of counsel), for appellant.
    Metropolitan Life Insurance Co., of New York, New York (William J. Toppeta and Amy K. Posner, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff-appellant HCA Health Services of the Midwest, Inc., d/b/a Riverside Hospital (HCA), sought recovery of its fees for medical services rendered to Nathanial Rosner. HCA’s initial complaint sounded in breach of contract, promissory estoppel and additionally sought fees pursuant to section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 767). The trial court granted defendantsappellees Tom’s Foods, Inc.’s (TFI’s) and Metropolitan Life Insurance Company’s (Metropolitan’s) motions for summary judgment. The trial court held that HCA’s claims were preempted by the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. §1001 et seq. (1988)), but denied. HCA’s motion to amend its complaint to bring actions against defendants under ERISA. HCA appeals, contending: (1) that the trial court erred in denying HCA leave to file an amended complaint; (2) that estoppel is a proper claim under ERISA; and (3) that TFI and Metropolitan are proper defendants under ERISA. We reverse and remand.

HCA provided services to Nathanial Rosner, a minor, from about February 15, 1988, to about April 15, 1988. Nathanial Rosner is the son of codefendant Sheila Rosner and Phillip Rosner. The action against Sheila Rosner has become barred due to her bankruptcy. Phillip Rosner was a covered employee under a medical plan established by his employer, TFI. Metropolitan administered claims submitted under the plan.

HCA alleged that when Nathanial Rosner was admitted as a patient, it contacted Metropolitan for the purpose of determining whether the services to be provided would be covered. Metropolitan orally confirmed the existence of benefits to the patient, giving its own name as the plan name and informing HCA that it was the claims administrator for the plan. HCA mailed confirmation letters to both Metropolitan and TFI. Metropolitan approved the medical necessity of the patient’s stay at the hospital for up to 62 days. After the patient’s discharge, however, Metropolitan informed HCA that TFI had not authorized payment of the balance due, which is $14,360.79. Phillip Rosner, meanwhile, assigned his rights to benefits under the plan to HCA.

HCA filed its initial complaint in February of 1989. On March 10, 1989, TFI and Metropolitan filed a petition to remove the action to Federal court, asserting that the Federal court had jurisdiction based on ERISA. The case was remanded to the circuit court, however, because defendant Sheila Rosner had not joined in the petition for removal. The transmittal to the clerk of the circuit court is dated July 17. 1989.

On August 15, 1989, defendants filed their motions for summary judgment, although neither defendant had yet answered the complaint. The motions were fully briefed and heard on November 7, 1989. The trial court granted the motions, ruling that HCA’s claims were preempted by ERISA. After the trial court had ruled, HCA orally moved to amend the complaint to bring actions under ERISA, but the trial court instructed HCA to bring a written motion. The written order granting defendants summary judgment was entered the next day. HCA brought a “Motion to Modify the Order of November 8, 1989, and for Leave to File an Amended Complaint” on November 28, 1989. After another round of briefing, the motion was heard on February 9, 1990. The trial court denied HCA’s motion.

ERISA regulates employee benefit plans, which include both pension and welfare benefit plans. ERISA preempts “any and all State laws insofar as they *** relate to an employee benefit plan” (29 U.S.C. § 1144(a) (1988)) unless the State claim is “too tenuous, remote or peripheral.” (Shaw v. Delta Air Lines, Inc. (1983), 463 U.S. 85, 100 n. 21, 77 L. Ed. 2d 490, 503 n. 21, 103 S. Ct. 2890, 2901 n. 21.) The term “State law” includes “all laws, decisions, rules, regulations, or other State action having the effect of law, of any State.” (29 U.S.C. § 1144(c) (1988).) The preemption provision of ERISA has been construed as barring causes of action based on both State common law and statutory law. (Arnold v. Babcock & Wilcox Co. (1988), 123 Ill. 2d 67, 73, 525 N.E.2d 59 (and cases cited therein).) State laws are preempted if the conduct sought to be regulated is part of or arises from the administration of an employee benefit plan. Gadsby v. Health Insurance Administration, Inc. (1988), 168 Ill. App. 3d 460, 466, 522 N.E.2d 865.

In the trial court, HCA argued in opposition to defendants’ motions for summary judgment that its State law claims were not preempted by ERISA. That ERISA governed HCA’s claims was the basis of TFI’s and Metropolitan’s petition for removal to the Federal court. The trial court, in granting defendants’ motions, specifically found that HCA’s claims were preempted by ERISA. HCA does not now dispute that its claims fall under ERISA. Rather, the pivotal issue in this case is whether HCA should have been allowed to file an amended complaint which in fact attempted to allege ERISA causes of action.

In two recent cases, which were both decided after the trial court’s ruling in this case, the First District Appellate Court addressed the propriety of amending a complaint after the entry of summary judgment. In Loyola Academy v. S&S Roof Maintenance, Inc. (1990), 198 Ill. App. 3d 799, 556 N.E.2d 586, plaintiff filed a three-count complaint against defendants, seeking to recover damages incurred to its roof. The initial complaint alleged negligence in the installation of plaintiff’s roofing system, breach of implied warranty of merchantability and breach of express warranty. Defendants successfully moved for summary judgment as to the warranty counts. The trial court also dismissed the negligence count, with prejudice. At the hearing on the motion to dismiss, plaintiff orally moved for leave to amend the complaint. Thereafter, plaintiff filed a written motion requesting leave to amend. The proposed amended complaint asserted different actions against each defendant than the initial complaint had, consisting of actions for breach of implied warranty of fitness for a particular purpose and merchantability, violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 1211/2, par. 261 et seq.) and breach of contract. The trial court denied plaintiff’s motion for leave to amend. Loyola Academy, 198 Ill. App. 3d at 801.

The court held that the trial judge had the power to allow plaintiff to amend the complaint pursuant to section 2 — 1005(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(g)), and that plaintiff was not limited in its ability to do so by conforming the pleading to the proofs. (Loyola Academy, 198 Ill. App. 3d at 802.) The court, however, stressed that motions to amend the pleadings after summary judgment typically are made much later in the proceedings and are viewed with less liberality than those made at the “pleading stage.” (Loyola Academy, 198 Ill. App. 3d at 803.) The court concluded:

“In the instant case Loyola [plaintiff] proposes amendments of potentially significant impact to the case. The facts Loyola alleges in the amended complaint were known at the inception of this litigation. The trial court noted that Loyola could have filed its amended complaint before the court granted summary judgment on counts I and II, or contemporaneously with Loyola’s motion for reconsideration of the summary judgment. Loyola offered no justification for its lack of alacrity, and the trial court was within its discretion when it denied Loyola’s motion to amend the pleadings.” Loyola Academy, 198 Ill. App. 3d at 803-04.

In Hill v. Jones (1990), 198 Ill. App. 3d 854, 556 N.E.2d 613, the court followed the analysis of the Loyola Academy decision. In Hill, plaintiff brought an action alleging violation of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366). In the two years following the filing of the initial complaint, significant discovery was taken, and defendant brought a motion for summary judgment, which was denied. The defendant then brought a second motion for summary judgment, which the trial court granted. At the hearing on the second motion for summary judgment, plaintiff made an oral request to amend her complaint, which was denied. Plaintiff subsequently filed a written motion to vacate the order of summary judgment and for leave to amend the complaint. The proposed amended complaint alleged actions based on common law negligence and fraud. The trial court again denied plaintiff’s motion. Hill, 198 Ill. App. 3d at 855.

The Hill court also noted the late point in the proceedings at which plaintiff sought to amend and stated:

“Upon reaching the summary judgment stage of the proceedings, the court has moved from an examination of the sufficiency of the pleadings, through the discovery stage, to a determination of whether there are material issues of fact to advance to a full trial. [Citation.] Presumptively, at the time of the hearing on the motion for summary judgment, the parties are aware of the significant facts and law which apply to the case. The hearing on the motion is an important, potentially dispositive stage of the proceeding.” Hill, 198 Ill. App. 3d at 858.

The court concluded:

“In the present case, the plaintiff is proposing to make significant changes to the pleadings after summary judgment has been granted. The plaintiff could have anticipated these amendments far earlier in the course of the litigation. As the plaintiff has offered no justification for failing to propose her alternative theories at a more appropriate stage of the proceedings, we do not believe the trial court abused its discretion in denying the plaintiff leave to amend.” Hill, 198 Ill. App. 3d at 858-59.

The plaintiff in this case was in an entirely different posture than the plaintiffs in Loyola Academy and Hill when plaintiff sought to amend its complaint. In those cases, the defendants brought motions for summary judgment which, if granted, would dispose of the entire case against the defendants. Only after the motions were granted did the plaintiffs seek to amend their complaints, alleging new theories of recovery against the defendants. In the case before this court, unlike those cases, it was defendants themselves who argued that ERISA preempted HCA’s claims. Defendants sought to have the case removed to Federal court and asserted ERISA as the basis for jurisdiction. The defendants here, instead of proving they were not liable on the theories the plaintiff alleged, proved that, if they were liable, it was on a ground different than the ground plaintiff alleged.

ERISA preemption, upon which both defendants based their motions for summary judgment, does not act as a defense to a State law claim; rather, ERISA preemption converts the related claim into a Federal question. (Belasco v. W.K.P Wilson & Sons, Inc. (11th Cir. 1987), 833 F.2d 277, 287.) As such, it may be looked at as establishing the rules of the game, but not the outcome.

In this case, no determination of the merits of HCA’s claim had been made. Defendants established no facts which contradicted the facts HCA alleged in its complaints. No extensive discovery had been taken. The month after the complaint was filed, defendants petitioned to have the case removed, and within a month of the case being transmitted back to the circuit court, defendants filed their motions for summary judgment. Defendants had not answered the complaint.

In fact, defendants’ motions could properly have been brought via section 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9)) as “other affirmative matter” barring the legal effect of or defeating the claim. (See, e.g., Alfieri v. CSX Corp. (1990), 201 Ill. App. 3d 559 (question of whether plaintiff’s State law claims were preempted by the Railway Labor Act (45 U.S.C. §§151 to 163 (1983)) decided pursuant to section 2 — 619(a)(9) motion).) Loyola Academy and Hill make clear that a party has no unfettered right to amend a pleading after the entry of summary judgment. The facts of this case, however, are markedly different than the facts in those cases.

In denying HCA leave to amend the complaint, the trial judge relied on the case of Fultz v. Haugan (1971), 49 Ill. 2d 131, 305 N.E.2d 873. Fultz involved a plaintiff’s attempt to amend the complaint after it was dismissed, and the court held that plaintiff could not do so as no evidence was presented prior to dismissal, and plaintiff could only amend to conform the pleadings to the proof. (Fultz, 49 Ill. 2d at 136.) Fultz did not involve a motion for summary judgment, however, and at the time of Fultz, a trial court had no discretion under section 2 — 1005(g) to allow amendment after summary judgment, as the section did not exist. Loyola Academy and Hill, which were decided after the trial judge ruled in this case, establish that amendment of a pleading after the entry of summary judgment is not dependent on conformance to the proof. Thus, Fultz is not authority to deny HCA leave to amend its complaint, and the trial court abused its discretion in denying HCA leave to amend.

We next address the issue of whether estoppel may be asserted under ERISA. While defendants cite several cases wherein courts have held that estoppel may not be asserted under ERISA, the Seventh Circuit Court of Appeals has recently held that estoppel may be asserted under ERISA. (See Black v. TIC Investment Corp. (7th Cir. 1990), 900 E2d 112.) The Black opinion notes that although courts have expressed concern about allowing estoppel to be asserted in pension plan cases and cases involving multiple employers, such concerns were not present in single-employer welfare plan cases. (Black, 900 F.2d at 116.) Here, the plan is a single-employer welfare plan, like the plan in Black. Defendants attempt to distinguish Black on the basis that, in Black, the plan was unfunded, while here the plan is “self-funded.” How the plan was funded in Black, however, was not discussed with regard to the court’s discussion of why estoppel should be allowed in that case. This court finds the reasoning of Black persuasive, and therefore, we hold that in such circumstances estoppel may be raised under ERISA.

Nor does the recent district court case of Illinois Psychiatric Hospital v. Willy (N.D. Ill. June 26, 1990), No. 89 C 8745, cited by defendants, mandate a contrary result. In Willy, the district court held that the plaintiff-health care service provider had no standing to sue and raise estoppel under ERISA. The counts at issue in Willy appear not to have alleged an assignment by the beneficiary of its claims to the plaintiff. Here, an assignment has been alleged (albeit not in the estoppel counts). The Illinois Supreme court, in Kennedy v. Deere & Co. (1987), 118 Ill. 2d 69, 76, 514 N.E.2d 171, held that a health care provider who has been assigned an employee-participant’s right to benefits under a plan may bring an action under ERISA. Defendants did not argue below that HCA had no standing to sue under ERISA; to the contrary, it was argued that HCA did have standing to bring an ERISA claim as a result of the assignment. Defendants have offered no evidence to rebut HCA’s claim of assignment. Nor have defendants argued to this court that, should HCA properly plead the assignment in the estoppel based ERISA counts, HCA could not benefit from such a theory based on the fact that the representations complained of were made to HCA, as opposed to Phillip Rosner.

Finally, we address whether defendants were proper defendants under ERISA. TFI did not argue that it was not a proper party defendant in moving for summary judgment. It contends that the proposed amended complaint fails to properly name the plan as a defendant, although the prayer for relief in count III of the amended complaint appears to envision the plan as the party against whom recovery is sought. The name of the plan, like defendant, is “Tom’s Foods, Inc.” TFI is named as the agent for service of process in the plan, and TFI is designated in the plan as the plan’s sponsor.

Importantly, TFI has not advanced any argument asserting that the denial of benefits was proper under the plan. The proposed amended complaint alleges that TFI refused to authorize payment of the balance HCA claims is due. There is no evidence in the record, nor has TFI argued, that the plan was administered by any independent decision maker. If an employer has controlled or influenced the administrator’s decision regarding the award of benefits, an employer may be subject to suit under ERISA. (Adamo v. Anchor Hocking Corp. (W.D.Pa. 1989), 720 F. Supp. 491, 498.) Moreover, the plan itself is a proper party defendant. (29 U.S.C. § 1132(d)(1) (1988).) The resolution of whether TFI and/or the plan is the proper party defendant may be determined via appropriate motion upon remand.

Metropolitan also contends that it is not a proper party defendant. Metropolitan raised the issue of whether it was a proper defendant under ERISA in its memorandum accompanying its motion for summary judgment. The trial court did not discuss the issue either in granting Metropolitan’s motion for summary judgment or in denying HCA leave to file an amended complaint. The trial court did note that it was ruling favorably on all aspects of Metropolitan’s motion for summary judgment, however. An examination of the record reveals that the granting of Metropolitan’s motion for summary judgment on the ground that Metropolitan was not a proper defendant was error.

ERISA does not regulate the duties of nonfiduciary administrators, and nonfiduciaries cannot be liable under ERISA. (Howard v. Parisian, Inc. (11th Cir. 1987), 807 F.2d 1560, 1564-65.) ERISA defines a fiduciary as one who “exercises any discretionary authority or discretionary control respecting management of [a] plan or exercises any authority or control respecting management or disposition of its assets.” (29 U.S.C. §1002(21)(A)(i) (1988).) An insurance company does not become a fiduciary simply by performing administrative functions and claims processing within a framework of rules established by an employer. Baker v. Big Star Division of the Grand Union Co. (11th Cir. 1989), 893 F.2d 288, 290-91.

Metropolitan presented the following evidence in moving for summary judgment: (1) the affidavit of LaMar White, which established that the TFI plan was an ERISA plan and that Phillip Rosner was a covered employee; (2) a copy of both the TFI plan and an “Administrative Services Agreement” (ASA) between Metropolitan and TFI; and (3) the affidavit of William Van Deusen, technical assistant in the customer business unit of Metropolitan, who authenticated the ASA and stated “[u]nder the ASA, Metropolitan provided claims handling services for TFI’s employee benefit plan, which was entirely self-funded by TFI, and not insured by Metropolitan.” By way of affidavit, HCA established that an employee of Metropolitan orally verified benefits for Nathanial Rosner. The original complaint contained counts which alleged that Metropolitan informed HCA that TFI did not authorize payment of benefits and that Metropolitan itself denied liability (without alleging that Metropolitan informed HCA that TFI denied the payment of benefits).

At the hearing on Metropolitan’s motion for summary judgment, Metropolitan argued that it was “acting as a contract administrator, exercising totally non-fiduciary, non-discretionary functions.” Metropolitan urged at the trial level and urges on appeal that defendants intended Metropolitan should have no liability under the plan.

A motion for summary judgment is properly granted where no triable issue of fact exists, and the party moving for summary judgment has the burden of establishing the absence of a genuine issue of material fact. (Waite v. Chicago Transit Authority (1987), 157 Ill. App. 3d 616, 619, 510 N.E.2d 1176.) Here, Metropolitan presented no evidence to establish that on the occasion in question it acted in a nondiscretionary manner. The plan itself gives Metropolitan significant discretionary authority, particularly in the area of deciding the medical necessity of services. The ASA provides that TFI would make the final decision to approve or deny coverage. The ASA, however, also states that Metropolitan would provide, among others, the following services: furnish advice and assistance on procedures to be followed for verification of coverage and for submission of claims; evaluate claims submitted, including professional evaluation by Metropolitan’s medical department when required; compute and verify the amount of benefits, and prepare and furnish to each employee an appropriate statement of the amounts of benefits; and review claims to establish medical necessity for services rendered or charges incurred when applicable.

It is clear that both the plan and the ASA evidence some discretion, although perhaps not final discretion, on the part of Metropolitan. Metropolitan did not present any evidence at the hearing on the motion for summary judgment as to the denying of HCA’s claim, either as to who decided the claim should be denied, or on what particular basis the claim should be denied.

Moreover, every employee benefit plan “shall provide for one or more named fiduciaries who *** shall have authority to control and manage the operation and administration of the plan.” (29 U.S.C. § 1102(a)(2) (1988).) The plan in this case makes no mention of any fiduciary; it only names Metropolitan as the administrator. Given the discretion that both the plan and the ASA provide Metropolitan, Metropolitan’s lack of a showing that it acted in a nondiscretionary manner in denying HCA’s claim or that it acted in conformance with the ASA in denying HCA’s claim, and the nonexistence of any possible fiduciary other than Metropolitan, Metropolitan’s status as a nonfiduciary was not a matter free from doubt, and the granting of summary judgment on this ground was error.

We emphasize, in ruling as we do, that the proposed amended complaint is not a model of clarity in pleading. We are not expressing a view as to whether or not Metropolitan is a proper defendant under ERISA. Rather, any deficiencies in the amended complaint may be addressed via appropriate motion upon remand, and Metropolitan may establish its nonfiduciary status, if Metropolitan is a nonfiduciary, by providing a sufficient evidentiary basis.

Accordingly, the judgment of the circuit court is reversed and remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

LaPORTA, P.J., and McNAMARA, J., concur.