text:
    AMERICAN GARDEN HOMES, INC., Plaintiff-Appellee and Cross-Appellant, v. GELBART FUR DRESSING et al., Defendants-Appellants and Cross-Appellees.
    First District (4th Division)
    Nos. 1—91—0684, 1—91—0925 cons.
    Opinion filed September 30, 1992.
    Rehearing denied December 18,1992.

      James S. Gordon and Edward Slovick, both of Chicago, for appellants Gelbart Fur Dressing, James Mills, John Mills, and John Pigott.
    David J. Lloyd, of Berger, Newmark & Fenchel, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, American Garden Homes, Inc., brought an action in the circuit court of Cook County against defendants, Gelbart Fur Dressing (hereinafter Gelbart), Ronald S. Fishman, Barry S. Fish-man, Jerrold Sager, Donald E. Vacin, Theodore Gertz, as trustee for the Arnold Mass Children’s Trust, and Arnold M. Mass, James Mills, John Mills, and John Pigott pursuant to the Mortgage Act (hereinafter the Act) (Ill. Rev. Stat. 1973, ch. 95, pars. 52, 53, 54). The Act allows a mortgagor who has paid in full to compel a release of his mortgage and to recover a penalty and reasonable attorney fees from his mortgagee. Judgments were entered in favor of plaintiff. Defendants were ordered to release the mortgage and award plaintiff $42,941 in attorney fees. Defendants appeal from the adverse judgments as to count III and as to the counterclaim. Plaintiff appeals from the trial court’s denial of its breach of contract claim.

The issues on appeal are whether the trial court erred in finding that (1) plaintiff had standing to file suit as a “party aggrieved” under the Act (Ill. Rev. Stat. 1973, ch. 95, par. 54); (2) defendants were liable pursuant to the Act and that full payment of the mortgage had been received; (3) plaintiff was entitled to an award of all of its attorney fees for the entire case; (4) the Shapiro offer to purchase the Meadow Lane property was a sham; and (5) plaintiff failed to prove damages for its breach of contract claim.

We affirm.

Plaintiff was a general partner in the Meadow Lane Partnership that was organized in May 1971. Defendants were limited partners with a minority interest. Realty was purchased by the partnership with the help of borrowed funds. The debt was secured by a mortgage guaranteed by the limited partners and the principals of American Garden Homes, Inc. When the mortgage had been paid in full, John Pigott obtained possession of the mortgage documents.

A land trust was established by plaintiff on June 29, 1971, at Western National Bank of Cicero. The Meadow Lane Partnership was the beneficiary and plaintiff had power of direction. Also around that time, the land trustee purchased some real estate in Wheeling, Illinois. On October 17, 1972, the Exchange National Bank of Chicago lent $280,000 to the land trustee. The loan was secured by a note and personally guaranteed by Norman Fishman and Jerrold Ruskin, both acting in behalf of plaintiff; and by John Mills, Ronald Fishman, Norton Shapiro and Arnold Mass, all acting on behalf of Gelbart. The Exchange National Bank notified the guarantors that the loan was past due on September 11,1975.

Some of the guarantors met at the Exchange National Bank on October 3, 1975. Each paid a percentage of the loan equivalent to his partnership interest. They further agreed to allow the law firm of Anixer, Delaney, Bilandic & Pigott to hold the mortgage documents as escrowee for the benefit of those who had paid the bank. An escrow letter was prepared. Plaintiff contends that it did not ask Exchange National Bank to release the mortgage.

Plaintiff and Norman Fishman, Jerrold Ruskin, Gelbart, James and John Mills, and the Arnold Mass Children’s Trust entered into a letter agreement. The essence of the agreement was that plaintiff had to gain the approval of the majority of the partners before engaging in transactions with the partnership assets. It was agreed to proceed with the sale of the partnership real estate, asking $270,000 for the realty but accepting $225,000.

In March of 1983, Norman Fishman asked Pigott to deliver the note and the mortgage. Less than one week later, he asked for the mortgage documents to be turned over to the attorneys for Meadow Lane. Pigott denied both of these requests, stating that he was holding these documents for the guarantors, not for the partnership. Plaintiff filed suit against all of the limited partners. The trial began on June 19, 1990. Defendants filed their notice of appeal from the judgments against them as to count III of the amended complaint and as to their counterclaim.

Defendants’ first argument on appeal is that plaintiff has no standing to file a suit as a “party aggrieved” under the Act. (Ill. Rev. Stat. 1973, ch. 95, par. 54.) Defendants argue that the Act should be interpreted restrictively in terms of the parties who have rights. They contend that plaintiff is not a mortgagor and therefore the Act is inapplicable, despite Pigott’s holding of the mortgage documents.

We disagree.

“Party aggrieved” is a general term allowing a broad spectrum of parties to seek relief through a civil action. The legislature intentionally chose such broad language so as not to frustrate the purpose of the Act. In order to effect its purpose, the Act should be subject to liberal interpretation. (Hettermann v. Weingart (1983), 120 Ill. App. 3d 683, 690.) The purpose of the Act is to allow the mortgagor to obtain a release when the terms of the mortgage have been fully satisfied. Standing is determined by the basis of one’s interest in the litigation, not by whether or not one has legal title to the property in question. (See Long v. Elk Grove Village (1978), 64 Ill. App. 3d 1006.) Despite majority approval by the partners, sale of the real estate was fruitless because Pigott, the attorney agreed upon by the guarantors, would not release the mortgage. He indicated that he was holding the note and mortgage for the guarantors, not the partnership. The effect of a narrow statutory interpretation would allow a partnership deadlock to last indefinitely. Meadow Lane Partnership realty has been held hostage for over 10 years due to the attempt to impose this type of interpretation.

Plaintiff has standing seeking to challenge its debt. Norman Fishman and Jerrold Ruskin were working on behalf of plaintiff. They were among those who personally guaranteed the loan from Exchange National Bank. We agree with plaintiff’s interpretation of section 4 of the Act and find that plaintiff is a “party aggrieved” and legitimately entitled to seek relief under the Act. Ill. Rev. Stat. 1973, ch. 95, par. 54.

Defendants’ second contention on appeal is that, whether or not they are liable under the Act, there was no evidence that the mortgage along with the debt has been fully satisfied. Defendants argue that the payments made to Exchange National Bank cannot be interpreted as capital contributions made to satisfy the mortgage. They do not recognize any commonality between those claiming an interest in the mortgage and those claiming an interest in the debt. We disagree.

Here, the trial court found that the funds paid to Exchange National Bank on behalf of plaintiff and in relation to its ownership interest in Meadow Lane were the functional equivalent of capital contributions to the partnership. (See Roth v. Carlyle Real Estate Ltd. Partnership VII (1984), 129 Ill. App. 3d 433, 438-39.) The trial court reasoned that “the identity between the beneficial owners of the land trust and those who paid off the note caused a cancellation of the debt and a merger of the ownership and the debt interests.” Our supreme court has defined the doctrine of merger as follows: “ ‘Rights are said to be merged when the same person who is bound to pay is also entitled to receive.’ ” (Jurado v. Simos (1988), 166 Ill. App. 3d 380, 382, quoting Donk Brothers & Co. v. Alexander & Taussig (1886), 117 Ill. 330, 338.) Therefore, plaintiff’s payments on the debt to Exchange National Bank may be considered merged with its ownership interest in the Meadow Lane realty. The application of the merger doctrine, as well as the trial court’s conclusion as to the function of the payments, allows ample evidence that full payment of the mortgage had been received.

Defendants contend that they cannot be ordered to release the mortgage because they are not the mortgagee and have not been held as such by the trial court. However, the evidence shows that defendants’ attorney had control over the mortgage documents and refused to release them. All of the guarantors who met at Exchange National Bank agreed to allow the firm of Anixer, Delaney, Bilandic & Pigott to hold the mortgage documents as escrowee for their benefit. The letter explaining this transaction was signed by John Pigott on behalf of the law firm. Norman Fishman sent a written request to Pigott in an effort to receive the note and mortgage. Fishman later requested that the mortgage documents be sent to the attorneys for Meadow Lane. Pigott’s refusal to honor either request prevented any sale or purchase of the realty.

The decision of the trial court will not be reversed unless it is against the manifest weight of the evidence. (In re Marriage of Strang-Reynolds-Conour (1991), 218 Ill. App. 3d 467, 468.) In the instant case, the trial court found that the mortgage and the debt were fully satisfied. Upon examining the record, we agree with the decision and find that it was not against the manifest weight of the evidence.

The third argument on appeal is whether the trial court erred in awarding attorney fees to plaintiff. Plaintiff was only successful on one of the five counts of its amended complaint. Defendants argue that the other claims were not only unsuccessful but unrelated and therefore not compensable. (Hensley v. Eckerhart (1983), 461 U.S. 424, 434-35, 440, 76 L. Ed. 2d 40, 50-52, 54-55, 103 S. Ct. 1933, 1939-40, 1943.) Thus, defendants contend that the trial court was wrong in its assessment of fees against them. We disagree.

The determination of attorney fees is left to the discretion of the trial court. (Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 184-85.) A court of review will not overturn its findings unless there is an abuse of discretion. (Pole Realty Co., 84 Ill. 2d at 184-85.) In keeping with the ruling of the United States Supreme Court, the Illinois Appellate Court has stated that “where the work on the unsuccessful claim is related to the work on the successful claim, an attorney fee award may be appropriate.” (Northtown Ford v. Human Rights Comm’n (1988), 171 Ill. App. 3d 479, 490.) Plaintiff specifically prevailed on count III, which was brought under the Act. (Ill. Rev. Stat. 1973, ch. 95, pars. 52, 53, 54.) Count III alleges that Gelbart and John and James Mills are attempting to hold themselves out as mortgagees. It also alleges that all of the partnership’s obligations under the note have been fully satisfied. Finally, it alleges that Pigott falsely represented that he was acting on behalf of the partnership, obtained the note and mortgage document, and breached his fiduciary duty to plaintiff by refusing to release the mortgage documents.

The other four counts are related to count III with respect to the issue of the partnership. All of the counts, including count III, attempt to dismantle the partnership deadlock and to hold defendants responsible for any damages. Thus, we find that the trial court did not abuse its discretion by awarding plaintiff attorney fees pursuant to the Act. (Ill. Rev. Stat. 1973, ch. 95, par. 54.) Further, “[attorney's fees may be awarded to a party defending an appeal when the court deems it reasonable and proper.” (Kolar v. Kolar (1977), 47 Ill. App. 3d 37, 42.) We therefore agree to award plaintiff its fees against defendants for the expenses incurred in defending its claims in this appeal.

Fourth, defendants contend that the trial court’s judgment against them on their counterclaim was against the manifest weight of the evidence. Defendants argue that Shapiro’s $285,000 offer to purchase the partnership realty was misconstrued by the trial court as being a sham. We disagree.

Two days after the trial of this cause began, Robert Shapiro, a partner in Gelbart, submitted his first offer to purchase the partnership. His offer was for $250,000. On June 22, 1990, the next day, Bridge Land Partnership submitted an offer for $260,000. The partners in Bridge Land were Norman Fishman, Ronald Fishman and Arnold Mass. The following business day, Shapiro submitted a second offer to purchase the realty for $285,000.

Shapiro’s higher offer was well above the estimated value of the property. Both offers were contingent upon the proceeds of sale being disbursed pro rata to the owners of the mortgage note. Shapiro admitted as much in his testimony. The colloquy between Mr. Shapiro, the witness, and Mr. Lloyd, plaintiff’s counsel, went as follows:

“A. The balance of the proceeds would be paid, the pro rata share of all the people who held the mortgage. No other payment for anything else, as I understand it. That’s at least as I understand the arrangement.
Q. And if American Garden Homes wanted to use the proceeds to satisfy some other financial obligations, it may or may not have, or the general partnership — or excuse me — the Meadow Lane Partnership might have, that was not permitted?
A. Under this document?
Q. In fact—
A. You mean this document that I’m looking at?
Q. That’s correct.
A. Yes, the answer is correct.”

After examining the evidence, the trial court found that the $285,000 offer was a sham. Both offers were based upon the assumption that a mortgage existed. This court of review has upheld the trial court’s finding that there was sufficient evidence that the mortgage had already been satisfied. Given that no mortgage existed, the Shapiro offers could not be given consideration. Thus, we find that the judgment of the trial court against the counterclaim brought by defendants was not against the manifest weight of the evidence.

The last issue on appeal is plaintiff’s claim that the trial court erred in finding that plaintiff failed to prove any damages under count IV. Count IV alleged a breach of the partnership agreement and sought monetary damages. The trial court found that any delay in the sale of the partnership property did not result in a decrease in its value. At trial, Norman Fishman qualified as an expert and valued the property at less than $225,000. Both the Shapiro offer and the Bridge Land offer were far in excess of this minimum valuation.

The record indicates that on September 10, 1985, John Padromas, president of Howard Savings and Loan Association, wrote a letter of intent to purchase the property. The damages that plaintiff claims as a result of having to forgo the Padromas “offer” are speculative. The offer to purchase was still subject to zoning approval and the execution of a final contract. “[Although letters of intent may generally be enforceable in Illinois [citation], such letters are not necessarily enforceable unless the parties intend them to be contractually obligatory.” (Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 1098.) Here, the existence of a binding contract had not been established.

The December 1975 partnership agreement included a specific price range for the sale of the Meadow Lane Partnership realty. The relevant portion of the agreement reads as follows:

“In order to facilitate this disposition, the undersigned agree that the partnership land should be offered for sale promptly with the initial asking price of $270,000.00 with the understanding that the minimal acceptable price for the land is $225,000.00.”

The Shapiro offer was for $285,000. The Bridge Land offer was for $260,000. Thus, we agree with the finding of the trial court that plaintiff failed to prove damages resulting from a breach of contract.

For the foregoing reasons, we affirm the ruling of the circuit court and we award attorney fees to plaintiff for expenses incurred in defending its claims in this appeal.

Affirmed.

LINN and McMORROW, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LINN PRESIDING JUSTICE JIGANTI,

license: Public Domain

text:
    ROBERT PTASZEK, Plaintiff-Appellant, v. KAREN MICHALIK, Defendant-Appellee.
    First District (4th Division)
    No. 1—91—1151
    Opinion filed September 30, 1992.
    Rehearing denied December 3,1992.

      JIGANTI, P.J., dissenting.
    Anthony Sammareo, of Forest Park, for appellant.
    No brief filed for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Robert G. Ptaszek, seeks post-judgment relief from an agreed order of paternity that was entered on December 16, 1986. That paternity declaration was the result of Ptaszek’s action to have himself declared the natural father of Erik Robert Michalik. Because the petition to vacate the 1986 order was filed more than two years after its entry, Ptaszek must establish that the ground he asserts for relief from the 1986 order was fraudulently concealed from him. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401(c).

The trial court denied the petition to vacate the order of paternity, finding that Ptaszek failed to establish that Karen Michalik, Erik’s mother, had fraudulently concealed the fact that he may not be the child’s biological father. In addition, the court found that Ptaszek, who had actively sought and maintained a father-son relationship with Erik for seven years, had failed to exercise due diligence with respect to challenging paternity.

On appeal, Ptaszek urges this court to reverse, claiming that the court’s ruling was against the manifest weight of the evidence. He also claims that the trial court erred in refusing to admit into evidence the results of blood tests that were obtained following the filing of his petition to vacate.

For the reasons that follow, we affirm.

Backgbound

Ptaszek and Michalik began a sexual relationship in May or June of 1981. When she became pregnant in August of that year, she told him she was certain that he was the father. They discussed the possibility of marriage but at that time the relationship had already deteriorated and it terminated altogether in 1982. The baby was born on April 1, 1982. Two or three months thereafter, Michalik introduced Ptaszek to the man she later married. From the beginning, however, Ptaszek acted as Erik’s father and contributed support.

Ptaszek continued to enjoy regular visitation with Erik until 1984, when Michalik tried to put a stop to it. In March 1984 Ptaszek filed a paternity action to establish that he was Erik’s natural father and to establish a visitation and support schedule. The complaint asserted that he was Erik’s natural father, had developed a close relationship with the child, and that Erik believed him to be his natural father.

Michalik’s answer to the complaint admitted Ptaszek’s allegation of paternity. She contested his continued visitation, however. In a pleading she filed on December 12, 1986, seeking a mental examination of Ptaszek, she alleged that he had an unstable temper, drank to excess, and abused their son. Her petition also stated that Erik, who would have been more than four years old at that time, “refuse[d] to see [Ptaszek].”

On December 16, 1986, the parties entered into an agreed order that identified Ptaszek as the natural father. The order set out his obligation to pay child support and to provide health insurance while Michalik retained custody of the child. The visitation issue was reserved pending evaluation and counseling of the parties by the social services department.

The record indicates that the parties participated in additional or supplemental court proceedings on the visitation issues and that Ptaszek believed Michalik was impeding his visitation with Erik.

On August 3, 1989, Ptaszek filed the pending petition, pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure, seeking vacation of the agreed order of paternity that had been entered almost three years earlier. (This was seven years after Erik’s birth and 31 months after Ptaszek had obtained the judicial declaration of fatherhood.) In the petition he denies paternity, relying solely on a May 30, 1989, conversation with Michalik in which she stated he was not Erik’s father. In support of his section 2 — 1401 petition, Ptaszek submitted an affidavit stating that he had “had no reason to doubt” Michalik’s earlier statements “that acts of intercourse engaged in by [him and Michalik] resulted in her conceiving a child.” (In now asserting his nonpaternity as “fact” in the petition to vacate, Ptaszek presumably took Michalik’s statement once again at face value.)

According to Ptaszek’s testimony at the 1991 hearing on the section 2 — 1401 petition, he was first told that Erik was not his son on May 30 when Michalik telephoned and asked Ptaszek why he mistreated her and hit her. His testimony on this point is vague, but apparently the May 30 conversation related to an incident or argument of a day or two before in which Ptaszek had hit Michalik. She called to ask why he “beat her up” and treated her the way he did. According to Ptaszek, this was the first time she told him Erik was not his son.

In her response to the petition to vacate, Michalik stated that at the time of Erik’s conception Ptaszek had “no reason to believe that he was the exclusive sexual partner of Karen Michalik” and that he had notice or knowledge of the circumstances surrounding Erik’s paternity at the time of birth and at the time of his action to establish paternity. She did not testify at the hearing.

At the hearing, Ptaszek attempted to introduce into evidence blood tests the parties and child had taken pursuant to his request to clarify paternity. Ptaszek had sent the results of the tests to Michalik with a request to admit facts and genuineness of documents. She did not file a response thereto. The trial court ruled that the results of blood tests would not be admitted into evidence, however, on grounds of relevance. The court noted that Ptaszek filed his section 2 — 1401 petition alleging fraudulent concealment before any such tests were taken and that the petition was not based on the results of the tests.

Ptaszek admitted that he was seeking a reduction of his child support payments in a separate action.

The court then asked Ptaszek a series of questions relating to the circumstances of the parties’ 1981 sexual liaison. Ptaszek said that he had believed Michalik when she told him she had not engaged in sexual relations with anyone else during their affair. Ptaszek conceded, however, in response to the court’s final question, that “when a lady is engaging in sex with two different men during the period of conception, she really doesn’t know who is the father, either.”

The court ruled that the facts presented did not justify a finding of fraudulent concealment, noting that Ptaszek had been represented by counsel in the paternity proceedings he had instituted in 1984, two years after Erik’s birth. The court also remarked that Ptaszek was aware that Michalik had married within six months after Erik’s birth. Ptaszek’s paternity action did not conclude until 1986, and he waited more than two years after that before he attacked the judgment and sought blood tests, based solely on a telephone conversation in which Michalik stated that he was not Erik’s father. Accordingly, the trial court denied Ptaszek’s section 2 — 1401 petition to set aside the 1986 agreed declaration of paternity.

Opinion

Ptaszek’s brief ignores his own conduct and the passage of time in urging this court to set aside a final judgment of paternity that he actively pursued. In so doing he ignores the principles of res judicata and estoppel that Illinois courts have applied in similar situations to prevent persons from changing their minds about parenthood. (See In re Marriage of Emerson (1983), 115 Ill. App. 3d 712, 450 N.E.2d 987 (and cases cited therein) (divorced father would be stopped from denying his paternity after he had married a pregnant woman with knowledge of the circumstances and had agreed to the judgment of dissolution that set out his parental rights and obligations).) Michalik did not file an appellee brief, but this does not affect our disposition of the case. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

A section 2 — 1401 petition is, of course, a collateral attack on a final judgment rather than a direct appeal from the merits. To reopen a final judgment after 30 days but within two years, a litigant must establish that he has a meritorious claim or defense to the original action; he exercised due diligence in presenting the claim or defense in that action; and he has exercised due diligence in bringing the section 2 — 1401 petition. (E.g., Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 499 N.E.2d 1381.) Although the statute is applied with the aim of achieving a just result, the section 2 — 1401 petition “was never intended to give a litigant a new opportunity to do that which should have been done in an earlier proceeding. The provision was never intended to relieve a litigant of the consequences of his mistake or negligence.” In re Marriage of Travlos (1991), 218 Ill. App. 3d 1030, 1035, 578 N.E.2d 1267, 1271.

After the passage of two years, moreover, even a showing of due diligence and a meritorious claim or defense is insufficient to win vacation of the judgment. Instead, a litigant must additionally establish that the grounds for relief were fraudulently concealed from him, in order to toll the limitation period. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401(c); In re Marriage of Emerson (1983), 115 Ill. App. 3d 712, 450 N.E.2d 987.) In Emerson, the court noted that a party cannot simply assert that the judgment was premised on false facts and that a good defense exists; he must show that the facts could not have been discovered at or prior to the judgment and that he exercised due diligence.

In this case, Ptaszek had the opportunity to either challenge or verify his paternity from the outset. He deliberately chose to claim he was Erik’s father. Certainly, he could have sought blood tests in his original paternity proceeding, had he desired. What he wanted in 1984, however, was to continue his admittedly close relationship with his two-year-old son. Now, years later (after continued struggles over visitation), he reverses himself and seeks to be relieved of the burdens of fatherhood.

In the dry analysis of the elements of a section 2 — 1401 petition, no one asks what 10-year-old Erik thinks about the apparently disposable nature of fatherhood. That the child might even blame himself for his father’s decision to disown him is not, of course, the issue here, but it certainly should give pause to the adults in his life.

This is not a case in which a putative father challenges paternity in a timely fashion and is freed from legal obligation after a finding that he is not the biological father. Indeed, Ptaszek’s paternity was never in issue, certainly not from his viewpoint, for eight years. Although it appears that Michalik and Ptaszek only dated for a few months and never seriously considered marriage, Ptaszek embraced his role as father from the beginning. He helped pay the baby’s medical expenses, signed the certificate of live birth, contributed to Erik’s support, and visited with him. He initiated the 1984 action for declaration of paternity to safeguard that relationship, not because Michalik denied that he was the father. In fact, she admitted the allegations of his paternity complaint.

The allegations of fraud in this case are exceedingly slim. Ptaszek states, in essence, that he believed Michalik’s statement that he was Erik’s father back in 1981 but now he believes her 1989 statement that he is not really Erik’s father after all. How she could have been certain of either set of representations is left unexplained, which undercuts the fraud theory substantially.

In our opinion, the blood tests in the pending case were properly excluded as immaterial to the issue of fraudulent concealment. Neither Michalik nor Ptaszek previously had the benefit of such tests and both parties apparently had long believed or at least agreed to accept that Ptaszek was Erik’s father. Even if the blood tests are assumed to be accurate and reliable on the issue of biological paternity, Ptaszek’s burden of proof on his petition to vacate the three-year old paternity judgment was not to simply show he is not the father after all. Rather, his burden was to establish by clear and convincing evidence that Michalik knew he was not the father and intentionally misled him about that fact, upon which he relied to his detriment. E.g., In re Marriage of Bashwiner (1982), 107 Ill. App. 3d 772, 779, 438 N.E.2d 490 (and cases cited therein); accord In re Marriage of Travlos (1991), 218 Ill. App. 3d 1030, 1037, 578 N.E.2d 1267.

We find that Ptaszek failed to adduce sufficient evidence that Michalik actually knew or should have known he was not the biological father and deliberately lied about it. Even if Michalik failed to disclose that she had engaged in sexual relations with other men during the time of Erik’s conception, Ptaszek could have sought clarification of his paternal status at the time the child was born. (See In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 527 N.E.2d 474 (silence alone is not fraudulent concealment and the issue of fraudulent concealment is necessarily analyzed in the context of the due diligence requirement).) The parties’ short-lived affair was casual and Michalik married another man within months of the baby’s birth. Instead of questioning his paternal standing, Ptaszek did everything possible to assure that Erik would be regarded by all as his natural son. Michalik did nothing to prevent him from seeking blood tests or other assurances of his paternity, either before, during, or after his 1984 paternity suit. Ptasek’s willingness to rely on Michalik’s statements that he was the father does not mean she affirmatively stopped him from ascertaining the true facts of his paternity. Accordingly, we find that he failed to establish that he had a right to rely on her alleged misrepresentations, particularly in light of the facts of which he had actual notice. See In re Marriage of Travelos, 218 Ill. App. 3d at 1038 (divorced husband’s theory regarding ex-wife’s fraudulent concealment of bank accounts failed where husband did not avail himself of the means of knowledge open to him).

The sole testimony in support of the alleged fraud was that Michalik first told Ptaszek that the child was his and then years later, during an argument, said the opposite. Both statements, necessarily, are at the most opinions; as long as Michalik had more than one sexual partner during the period of conception, there was no way for anyone to be absolutely certain of paternity, particularly without blood tests or other evidence that neither party sought in the original paternity action. Therefore, we find that Ptaszek failed to establish a knowingly false statement of material fact on which he had the right to rely. (See Metropolitan Bank & Trust Co. v. Oliver (1972), 4 Ill. App. 3d 975, 978, 283 N.E.2d 62 (statements of opinion or which deal with expectations or probabilities are not generally actionable as misrepresentations of fact).) We further find that Ptaszek failed to establish detrimental reliance because the very point of Ptaszek’s 1984 paternity action was to establish, not refute, his paternity. After achieving that result, Ptaszek cannot now claim he was prevented from finding the truth simply because he took Michalik’s statements at face value and adopted them to suit his own purposes.

The bare, unauthenticated results of the blood tests do not persuade us that Ptaszek should be permitted to reopen the paternity issue three years after that ultimate issue of fact was, or should have been, settled. Given the parties’ actions and intentions from 1982 through 1989, the blood tests are virtually beside the point. Even if we were to consider the results of the blood tests at this juncture, we believe that while they may tend to show mutual mistake of fact regarding biological paternity, they are not indicative of actual fraud.

We conclude that the 1986 order was a final adjudication of important issues involving the child’s welfare as well as Ptaszek’s rights and obligations as his father. It is of little significance now to say that Ptaszek might never have sought a declaration of his own paternity if he had earlier known or had good reason to suspect that he was not Erik’s biological father. That may be true. Or, it may be that he really did not care; his own complaint for paternity cited his belief he was the “natural” father of Erik, who had a close relationship with the child. Ptaszek insisted on a judicial declaration of the very fact he now says he was precluded from ascertaining or disproving because of Michalik’s fraud. We cannot approve such a solecism. From the time of Erik’s birth, Ptaszek’s aims were to acknowledge paternity pay support, and sustain the father-child relationship through visitation. He had access to all the relevant facts except whether Michalik had other sexual partners. He chose not to question his fatherhood at a time when, if biological paternity was the true concern, he might have spared an innocent child much pain. We find it illogical and disturbing that Ptaszek now insists that he was defrauded, misled, or otherwise prevented from learning the “true” facts of Erik’s biological paternity.

We conclude that the trial court’s denial of Ptaszek’s petition to vacate the order of December 16,1986, was correct.

Affirmed.

JOHNSON, J., concurs.

PRESIDING JUSTICE JIGANTI,

dissenting:

The majority advances three reasons to support its determination that the trial court properly denied the plaintiff’s request for post-judgment relief. First, the majority states that there was no evidence of fraudulent concealment on the part of the defendant because, even though she represented under oath that the plaintiff was Erik’s natural father, she could not have been certain of that fact. Therefore, the plaintiff did not establish a knowingly false statement of material fact on which he had the right to rely. (Metropolitan Bank & Trust Co. v. Oliver (1972), 4 Ill. App. 3d 975, 978, 283 N.E.2d 62.) Second, the majority concludes that the plaintiff failed to exercise due diligence in the original paternity action because he did not insist on a blood test to establish paternity. Third, the majority concludes that two separate blood tests which excluded the plaintiff as Erik’s natural father were “beside the point” and therefore properly excluded by the trial court. I respectfully dissent from the majority opinion because I disagree with all three of these conclusions.

First, I believe that the defendant’s categorical representations of very private matters concerning Erik’s parentage are sufficient to constitute fraudulent concealment. Fraudulent concealment has been defined as consisting of affirmative acts designed to prevent the discovery of a cause of action or ground for relief. (In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 224, 527 N.E.2d 474.) The majority states that the defendant’s representations that she was sure the plaintiff was Erik’s father were “at the most opinions” and that “[h]ow she could have been certain” of those representations is left unexplained. (Emphasis in original.) (238 Ill. App. 3d at. 77-78.) The explanation is really quite simple. The defendant could have been “certain” only if she was engaging in sexual intercourse with no one other than the plaintiff. This is the only logical interpretation of the defendant’s repeated representations that she was sure the plaintiff was Erik’s father. At the hearing on his section 2 — 1401 petition, the plaintiff testified that “I asked her if she was sure if it was my child. And she said she is sure it was my child ***.” When asked whether he ever determined whether the defendant was having sexual relations "with anyone else, the plaintiff responded, “I didn’t have her investigated. I did question her to see if she was having anybody else.” According to the plaintiff, the defendant never gave him any indication that it was possible that he was not Erik’s father, and he trusted her.

Supporting the plaintiff’s position that the defendant made misrepresentations as to Erik’s parentage at the time of the judgment in the paternity action is her continued insistence that the plaintiff is in fact the only one who could be Erik’s father. After the blood tests in the proceeding excluded the plaintiff as the father, the defendant filed a petition asking for a second blood test. Her reason was that the first blood test “must have [been] a mistake.” She further alleged that “at the time the child was conceived, the Defendant *** was a virgin and had her first sexual intercourse with [the plaintiff].” She then stated that “during all of the time in question, she had no contact with any other man.”

Furthermore, in her answer to the plaintiff’s 1984 complaint to establish paternity, the defendant admitted under oath that the plaintiff was Erik’s natural father. If, as the majority appears to accept, the defendant was engaging in a sexual relationship with more than one man at the time Erik was conceived, this admission was certainly a misrepresentation because she would have had no way of knowing whether the plaintiff was the father.

In Bellow v. Bellow (1976), 40 Ill. App. 3d 442, 352 N.E.2d 427, this court found fraudulent concealment based on the defendant’s misrepresentations as to his future income made in a letter sent by the defendant’s lawyer to the plaintiff’s lawyer. The court found that the record strongly suggested that the defendant was well aware of his earning power and that the plaintiff relied upon the misrepresentations to her detriment. The court stated that although settlements are looked upon with favor, a settlement agreement may be set aside where inequity and unfairness have been accomplished by some element of coercion or misrepresentation. (Bellow, 40 Ill. App. 3d at 445-46, 352 N.E.2d at 431.) In my opinion, the facts in the case at bar are sufficient to establish fraudulent concealment.

The second conclusion reached by the majority is that the plaintiff did not exercise due diligence in determining paternity during the original paternity action. Due diligence requires that the party bringing the section 2 — 1401 petition have a reasonable excuse for failing to act within the appropriate time. (In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 224, 527 N.E.2d 474.) In determining reasonableness, all of the circumstances must be examined, including the conduct of the litigants at the time the original judgment was entered. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 222, 499 N.E.2d 1381.) In certain limited circumstances, the due diligence requirement may be waived if the result is unfair, unjust or unconscionable. Airoom, 114 Ill. 2d at 225, 499 N.E.2d at 1388.

In the case at bar, the defendant told the plaintiff before Erik was born that she was sure the child was the plaintiff’s. The plaintiff signed Erik’s birth certificate, and the defendant allowed him to visit with Erik even after she married another man. It was only when the defendant threatened to cut off visitation that the plaintiff filed an action to establish paternity. In her answer to the complaint, the defendant admitted that the plaintiff was Erik’s natural father. An agreed order was then entered establishing the plaintiff’s paternity. The majority states that before he entered into the agreed order, the plaintiff should have insisted upon blood tests to establish that he was the father. In my view, this imposes an unwarranted burden upon the plaintiff given the facts of this case. At the time the suit was filed, the possibility that the plaintiff was not Erik’s father had never been raised. I do not believe that the plaintiff’s failure to insist upon a blood test established that he failed to exercise due diligence in the original paternity suit. The plaintiff had a right to rely on the categorical assertion that he was the father where there was evidence that the defendant represented to the plaintiff that he was the only man with whom she had had sexual relations. This is buttressed by the fact that at the time of the instant proceeding she still insists that the blood test is in error and that during the time in question she had no contact with any other man.

The third conclusion stated by the majority is that evidence of two blood tests which show that the plaintiff is not the natural father of Erik are “beside the point” and were properly excluded by the trial court. (238 Ill. App. 3d at 79.) I disagree. One of the elements the plaintiff must establish in requesting section 2—1401 relief is that he has a meritorious defense. (In re Marriage of Halas (1988), 173 Ill. App. 3d 218, 223, 527 N.E.2d 474.) I believe that the test results, which the plaintiff asserts excluded him as the father, were admissible on that issue.

With little grace and for no legal reason, the plaintiff has endured a personal attack which characterizes him as a person who is trying to disown his child because he wants to be relieved of the burdens of fatherhood. With no apparent support in the record, the majority refers to the “disposable” nature of fatherhood and suggests that biological paternity was not the plaintiff’s true concern. The majority repeatedly accuses the plaintiff of believing the defendant. I find these attacks particularly unfair in light of the fact that the plaintiff, when told the child was his, accepted his responsibilities by establishing a relationship with the child and making support payments.


author: JUSTICE CERDA

text:
    KATHERINE ANDERSON, Plaintiff-Appellant, v. THE VILLAGE OF FOREST PARK et al., Defendants-Appellees (Proviso Family Services et al., Defendants).
    First District (3rd Division)
    No. 1—91—1884
    Opinion filed October 28, 1992.

      Jeffery M. Marks, of Chicago (Clark M. Raymond, of counsel), for appellant.
    Fraterrigo, Best & Beranek, of Chicago (Frank Kasbohm and Matthew E. VanCleave, of counsel), for appellees.
   JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, Katherine Anderson, appeals from the dismissal of her civil rights action against defendants Village of Forest Park, village police officer Stephen Bukovack, village police officer Martin Moy, village police lieutenant Leisten, village police officer Mayman, and village paramedics Ferraro and Papelka. Plaintiff argues that: (1) the trial court erred in applying the Illinois Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 1—101 et seq.) to her causes of action; (2) the trial court erred in applying the Federal common law immunity for public officials to her causes of action; and (3) the count for intentional infliction of emotional distress stated a cause of action.

Plaintiff’s amended complaint was brought against not only the defendants listed above but against Proviso Family Services, an Illinois corporation, and Richard Arons, a social worker for Proviso.

Count I alleged the following. At about 11:35 a.m. on January 20, 1989, someone made an emergency 911 telephone call to the village police department. The caller stated that plaintiff’s aunt wanted plaintiff removed from her residence. The caller requested police assistance. At about 11:40 a.m., Moy, Leisten, Ferraro, Papelka, and Arons entered plaintiff’s bedroom and: (a) interrogated her for several hours; (b) searched through her dresser and other belongings; (c) refused to allow her to use the bathroom; (d) refused to allow her to change out of her nightgown and into street clothes; (e) refused to tell her why they were there other than to threaten that if she did not answer their questions, she would be involuntarily committed; (f) arrested her and refused to tell her why she was under arrest; and (g) bodily removed her from her bed, without provocation, need, or explanation, and dragged her in her nightgown down the steps and outside. In addition, Arons paged through plaintiff’s address book, telephoned people listed, and asked them questions about plaintiff. Plaintiff informed defendants that she suffered from multiple sclerosis. Plaintiff did not attempt to resist arrest or act violently. For the purported purpose of psychological observation, Ferraro, Papelka, and Arons transported plaintiff to the Foster G. McGaw Hospital in Maywood, Illinois. They arrived at the hospital around 2:37 p.m. In the emergency room, Ferraro, Papelka, and Arons made false statements about plaintiff to medical personnel.

As a result of the concerted excessive and unlawful search of plaintiff’s possessions, Moy, Leisten, Ferraro, Papelka, and Arons deprived plaintiff of her rights in violation of the fourth and fourteenth amendments to the United States Constitution and of the Civil Rights Act (42 U.S.C. §1983 (1988)).

Count II alleged that the conduct alleged in count I was excessive force, and that Moy, Leisten, Ferraro, Papelka, Proviso, and Arons deprived plaintiff of her rights in violation of the fourth and fourteenth amendments to the United States Constitution and of the Civil Rights Act (42 U.S.C. §1983 (1988)).

Count III alleged that the concerted action by defendants Moy, Leisten, Ferraro, Papelka, Proviso Family Services, and Arons bodily lifting plaintiff from her bed and dragging her down the staircase when she was not resisting arrest constituted assault and battery.

Count IV alleged that as a result of the village, Moy, Leisten, Ferraro, Papelka, and Arons’ taking custody of plaintiff, they owed her a duty of care. In deliberate, callous, and reckless disregard of this duty, these defendants willfully and wantonly: (a) removed plaintiff from her residence in subfreezing temperatures when they had prevented her from changing out of her nightgown and into warmer clothes and when they knew she suffered from multiple sclerosis; (b) caused plaintiff to be roughly dragged down a staircase; (c) exposed plaintiff to subfreezing temperatures for an extended period of time when they knew that she was not properly dressed for conditions and when they knew that she suffered from multiple sclerosis; (d) exposed plaintiff to numerous people, both known and unknown to her, when she was dressed only in her nightgown; and (e) otherwise breached the duty of care they owed to plaintiff. As a result, plaintiff was injured.

Count V alleged that plaintiff was discharged from the hospital and that the emergency room personnel gave her a blanket and taxicab voucher for transport back home. At about 6:30 p.m., a taxicab dispatcher called the village police department and stated that she was wearing only a nightgown and could not gain entry to her residence. As a result of the call, Bukovack removed plaintiff from her residence and transported her to a mental health center in Hines, Illinois. Personnel at the mental health center refused to accept plaintiff because Bukovack did not have the proper Illinois Department of Mental Health and Developmental Disabilities forms. Bukovack then transported plaintiff to the village police station, where plaintiff was confined to a holding cage. Mayman obtained transfer papers from the hospital to allow the mental health center to accept plaintiff by providing false information to the hospital personnel. Ferraro and Papelka transported plaintiff to the mental health center, arriving at about 9:10 p.m., and made false statements to the personnel there regarding plaintiff. Plaintiff was discharged at about 1:25 a.m. on January 21, 1989. As a result of the unauthorized arrest and holding of plaintiff, the village, Bukovack, Mayman, Ferraro, and Papelka deprived plaintiff of her rights in violation of the fourth and fourteenth amendments to the United States Constitution and of the Civil Rights Act (42 U.S.C. §1983 (1988)).

Count VI alleged the following. As a result of the village, Bukovack, Mayman, Ferraro and Papelka’s taking custody of plaintiff, they owed plaintiff a duty of care. In deliberate, callous, and reckless disregard of this duty, they willfully and wantonly: (a) exposed plaintiff to subfreezing temperatures for an extended period of time when they knew that she was not properly dressed for conditions and when they knew that she suffered from multiple sclerosis; (b) wilfully and wantonly exposed plaintiff to numerous people, both known and unknown to plaintiff, when she was dressed only in her nightgown; and (c) otherwise breached the duty of care.

Count VII alleged that the village, Bukovack, Mayman, Ferraro, and Papelka held plaintiff in custody against her will and without legal basis and thereby falsely imprisoned plaintiff.

Count VIII alleged that defendants’ conduct toward plaintiff was outrageous in nature, that defendants intended to cause plaintiff to suffer emotional distress, and that plaintiff suffered severe emotional distress.

The village filed an amended motion to dismiss the complaint against it (counts IV, VI, VII, and VIII), pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619), in which it argued the following. The individual defendant’s actions were authorized by the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1991, ch. 91½, par. 3—606). Any individual liability was immunized pursuant to the Tort Immunity Act and/or the qualified good-faith immunity applicable to plaintiff’s constitutional claims.

Moy, Leisten, Ferraro, and Papelka, filed a motion to dismiss counts I through IV and VIII pursuant to section 2—619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—619), in which they argued the following. The village police officers and paramedics acted within the procedural requirements of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1991, ch. 91½, par. 3—606), which authorized a peace officer to transport a person to a mental health facility as a result of his personal observation that he had reasonable grounds to believe that the person was subject to involuntary admission and was in need of immediate hospitalization to protect the person or others from physical harm. Upon his arrival, Officer Moy found plaintiff in bed, there was a strong odor of “bowel” and urine, there was bowel excrement on her bed and nightgown, and plaintiff was angry and defensive. Arons determined that plaintiff was suffering from extreme paranoia, was highly defensive, and was unable to care for herself. Moy was unable to reach plaintiff’s physician, and Arons prepared a petition for involuntary admission.

In support of the petition for involuntary admission, Arons stated the following. He believed that plaintiff was mentally ill and unable to provide for her basic physical needs so as to protect herself from serious harm and that she needed immediate admission to prevent such harm. Plaintiff was in the care of her 80-year-old aunt and had remained in bed for four months. Plaintiff had recently begun to defecate in bed and had not attempted to provide self-care or other hygiene. Plaintiff deflected his questions, and her thoughts appeared tangential and irrelevant. “Insight” was “absent,” and “paranoid features” were significant. Plaintiff refused to participate in attempts at self-care or protective behavior. Plaintiff possibly had multiple sclerosis, but she would not discuss this.

It was also argued that the officers and paramedics were immunized from liability for their actions pursuant to section 6—105 of the the Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 6—105). Defendants’ decision as to whether plaintiff required involuntary admission was discretionary pursuant to section 2—201 of the Tort Immunity Act. (Ill. Rev. Stat. 1991, ch. 85, par. 2—201.) In addition, these individuals were entitled to qualified good-faith immunity with respect to counts I and II. The allegation of intentional infliction of emotional distress was insufficient to state a cause of action.

A police report on the incident was attached as an exhibit. Plaintiff was Irene Chulos’ niece by marriage and asked four to five months ago if she could stay with Chulos for several days until she found a place to stay. Chulos stated that she could not cope with plaintiff anymore. When Moy went to the home, he found the door unlocked and ajar. He announced his office. A voice was heard upstairs, and the officer began talking with a woman who stated that she was sick and did not wish to speak to anyone. The officer persuaded the woman to speak face to face with him after she declined numerous times to give any information. When he entered the bedroom, he observed plaintiff sitting up in bed. He smelled a strong odor of “bowel” and urine. Excrement was later observed on her bed and nightgown.

Chulos provided plaintiff’s name. When the officer confronted plaintiff with her name, she became very angry and inquired about where the officer received the information. The officer attempted to perform a reality test (time, date, name, situation, etc.), and again plaintiff became angry and defensive and asked why he needed to know. The officer then requested the assistance of the police department’s social worker. When Arons arrived, he was informed of the situation and attempted to speak with plaintiff after identifying himself in the officer’s presence. Again, plaintiff became highly defensive when interviewed. Arons determined that she was suffering from extreme paranoia, defensiveness in her actions, and the inability to care for her health and emotional being. Because there was no cooperation by plaintiff and her physician could not be reached, Arons decided to petition her to a medical facility to check on her physical and mental health. She was taken to the ambulance after she made numerous attempts to resist.

Arons alleged in the petition for involuntary admission that plaintiff was mentally ill and that, because of her illness, she was unable to provide for her basic physical needs so as to guard herself from serious harm. He also alleged that plaintiff was reasonably expected to inflict serious physical harm upon herself or another in the near future.

The ambulance report form indicated that plaintiff was disoriented.

Attached to defendants’ reply to plaintiff’s response to defendants’ motion to dismiss were the affidavits of Moy, Bukovack, and Papelka swearing that they had personal knowledge of the matters contained in attached fire and police department reports and that the information contained therein was true and accurate. Two fire department reports for two transports were attached to Papelka’s affidavit. Both reports stated that plaintiff was disoriented. The report attached to Hoy’s affidavit described the initial contact with plaintiff. The report attached to Bukovack’s affidavit described the events subsequent to plaintiff’s evaluation at the hospital. This report stated that after evaluation, the hospital was to transfer plaintiff to the mental health center but instead “accidentally” released her. Bukovack found plaintiff lying on the ground in front of her home after she was dropped off by the taxicab. She was physically unable to take care of herself, she was shivering, she had no coat and only hospital blankets, and she had no house key. He took her to the station and fed her. Mayman got the proper papers from the hospital to transfer plaintiff to the mental health center where she was taken.

There was a third motion to dismiss but it does not appear in the record. According to a copy of this motion in defendants’ appendix, Bukovack, Mayman, Papelka, and Ferraro moved to dismiss counts V, VI, VII, and VIII, pursuant to section 2—619. This court cannot consider an unofficial xerox of a portion of the record. (See 134 Ill. 2d R. 324 (the clerk shall prepare and certify the record on appeal).) Because of the motion’s absence, that portion of the order granting the section 2—619 motion is affirmed. (See Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (appellant has burden to present sufficiently complete record of proceedings at trial to support claim of error, and in absence of such record, it will be presumed that the trial court’s order was in conformity with law and had sufficient factual basis).) Count V was not challenged in any of the two other motions to dismiss that appear in the record, and therefore its propriety will not be addressed on appeal.

On April 30, 1991, the motions to dismiss of the village, Moy, Leisten, Ferraro, and Papelka were granted, and the trial court found in accordance with Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) that there was no just reason for delaying enforcement or appeal. The order was amended nunc pro tunc on May 16, 1991, to include Bukovack and Mayman as defendants who were dismissed with prejudice.

Plaintiff appeals from the dismissal of her amended complaint. Plaintiff first argues that the immunities provided by sections 2—201 and 6—105 of the Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, pars. 2—201, 6—105) do not apply to civil rights actions and therefore did not apply to counts I, II, and V.

Defendants respond that the argument that the Tort Immunity Act did not apply to section 1983 claims was waived because plaintiff did not make the argument in the trial court.

We hold that the issue of the Act’s applicability was not waived because it was raised below in one of the motions to dismiss.

Section 3 — 606 of the Mental Health and Developmental Disabilities Code provides in part:

“A peace officer may take a person into custody and transport him to a mental health facility when, as a result of his personal observation, the peace officer has reasonable grounds to believe that the person is subject to involuntary admission and in need of immediate hospitalization to protect such person or others from physical harm.” Ill. Rev. Stat. 1991, ch. 91½, par. 3-606.

Section 2 — 201 of the Tort Immunity Act provides:

“Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” Ill. Rev. Stat. 1991, ch. 85, par. 2—201.

Section 6 — 105 of the Tort Immunity Act provides:

“Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury caused by the failure to make a physical or mental examination, or to make an adequate physical or mental examination of any person for the purpose of determining whether such person has a disease or physical or mental condition that would constitute a hazard to the health or safety of himself or others.” Ill. Rev. Stat. 1991, ch. 85, par. 6—105.

“Injury” is defined in the Tort Immunity Act as:

“death, injury to a person, or damage to or loss of property. It includes any other injury that a person may suffer to his person, reputation, character or estate which does not result from circumstances in which a privilege is otherwise conferred by law and which is of such a nature that it would be actionable if inflicted by a private person. ‘Injury’ includes any injury alleged in a civil action, whether based upon the Constitution of the United States or the Constitution of the State of Illinois, and the statutes or common law of Illinois or of the United States.” Ill. Rev. Stat. 1991, ch. 85, par. 1—204.

Section 1983 of the Civil Rights Act provides:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage *** subjects, or causes to be subjected, any citizen *** to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ***.” 42 U.S.C. §1983 (1988).

Firestone v. Fritz (1983), 119 Ill. App. 3d 685, 689, 456 N.E.2d 904, 908, held that a complaint’s allegation of a violation of constitutional rights was not barred by the Tort Immunity Act, which applied only to tort actions. The court relied upon Lulcer v. Nelson (N.D. Ill. 1972), 341 F. Supp. 111, 117 (history of Tort Immunity Act suggests that the Illinois legislature never considered it to apply to section 1983 suits), and Skrapits v. Skala (N.D. Ill. 1970), 314 F. Supp. 510, 511 (section 8—102 of the Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 8—102) providing for notice to public entity did not apply to section 1983 action).

In Hampton v. City of Chicago (7th Cir. 1973), 484 F.2d 602, 607, the court held that conduct that was wrongful under sections 1983 and 1985(3) (42 U.S.C. §§1983, 1985(3) (1988)) could not be immunized by the Tort Immunity Act because it was State law. Under the doctrine of the supremacy clause of the United States Constitution, a State immunity defense could not control a Federal statute. Hampton, 484 F.2d at 607.

Although the Tort Immunity Act refers to torts in its title, “injury” is defined in the Act as including any injury in a civil action, whether based on Illinois or United States law, including common law, statutes, and constitutions. (Ill. Rev. Stat. 1991, ch. 85, par. 1—204.) Section 2—201 provides immunity from liability for “injury” when the official exercises discretion. (Ill. Rev. Stat. 1991, ch. 85, par. 2—201.) Section 6—105, concerning the failure to make an adequate examination, does not refer to injury. (Ill. Rev. Stat. 1991, ch. 85, par. 6—105.) Therefore, on its face, at least, section 2—201 would cover section 1983 claims.

But, even if the Tort Immunity Act technically covers section 1983 claims, a State immunity defense cannot control a Federal statute. (Hampton, 484 F.2d at 607.) We hold that the Tort Immunity Act does not apply to plaintiff’s section 1983 claims because of the supremacy clause of the United States Constitution. U.S. Const., art. VI, cl. 2.

Plaintiff next argues that section 6 — 105 of the Tort Immunity Act did not apply to the State law claims because she did not allege either a failure to make an examination or a failure to make an adequate examination. In addition, plaintiff argues that her injuries were not caused by a failure to perform an adequate mental examination but by the violation of her constitutional rights.

Defendants argue that all their actions were taken in an effort to have plaintiff examined by a doctor and that the actions fell within section 3 — 606 (Ill. Rev. Stat. 1991, ch. 91½, par. 3—606).

Because section 6 — 105 cannot be a bar to a Federal section 1983 claim, we must determine only whether State law counts III, IV, VI, VII, and VIII were properly dismissed pursuant to the section.

The issue is whether plaintiff alleged injury that was the result of the failure to make an adequate examination of her for the purpose of determining whether she had a disease or condition that would constitute a hazard to the health or safety of herself or others. Plaintiff alleges injury resulting from: (1) an unlawful search of her residence; (2) excessive force in removing her from bed and in transporting her to the hospital; (3) battery arising from being lifted from bed and being dragged down the staircase; (4) being exposed to subfreezing temperatures; (5) being exposed herself in public in her nightgown dress; (6) being arrested and held pending arranging transfer to a mental health center; (7) false imprisonment; and (8) severe emotional distress.

The alleged conduct was in connection with defendants’ attempt to determine whether plaintiff needed a physician’s attention. But the force, invasion of privacy, and other abuse allegedly committed by defendants did not relate to the adequacy of their determination of whether plaintiff needed a doctor’s attention. Rather, plaintiff’s complaint concerns the manner in which defendants acted in seeking to assist her. Therefore, counts III, IV, VI, VII, and VIII were improperly dismissed pursuant to section 6—105. That there was statutory authorization for peace officers to transport a person to a mental health facility, under certain circumstances, is not a basis on which to dismiss plaintiff’s State law counts that allege the unlawful conduct of assault and battery, wilful and wanton behavior in transporting plaintiff, false imprisonment, and causing severe emotional distress.

Plaintiff next argues that section 2—201 of the Tort Immunity Act (Ill. Rev. Stat. 1991, ch. 85, par. 2—201) did not apply because defendants’ actions were ministerial rather than discretionary. Plaintiff points to the ministerial acts of physically taking her into custody, transporting her to the hospital and to the mental health center, and providing information about her to medical providers. Defendants argue that their actions were discretionary because they involved decisions about how to best transport plaintiff and whether to attempt to dress her in street clothes.

Ministerial acts are those which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority and without reference to the official’s discretion as to the propriety of the acts. (Munizza v. City of Chicago (1991), 222 Ill. App. 3d 50, 55, 583 N.E.2d 561, 565.) An official’s determination of whether and how to obtain an involuntary medical evaluation of someone cannot be performed in a prescribed manner because of the judgment required. We hold that the decision to remove plaintiff from her bedroom and seek medical evaluation was discretionary, and the conduct alleged in counts III, IV, VI, VII, and VIII fell within the scope of section 2—201 of the Tort Immunity Act.

But plaintiff next argues that discretionary acts immunity does not apply because defendants allegedly acted wilfully, wantonly, and in bad faith.

There is an exception of wilful and wanton conduct to the rule of public official immunity for discretionary acts. (Barth v. Board of Education (1986), 141 Ill. App. 3d 266, 273, 490 N.E.2d 77, 81.) In contrast to the situation of a public decision-maker making a mere mistake in judgment, wilful and wanton conduct involves an element of intent or recklessness. (Barth, 141 Ill. App. 3d at 273-74, 490 N.E.2d at 82.) A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others. (Barth, 141 Ill. App. 3d at 275, 490 N.E.2d at 83.) Therefore, counts IV and VI, which alleged wilful and wanton conduct, and count VIII, which alleged intentional conduct, were not subject to dismissal under section 2—201.

Plaintiff next argues that the Federal common law discretionary immunity for public officials addressed in Harlow v. Fitzgerald (1982), 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727, did not apply because defendants’ actions were ministerial rather than discretionary. In addition, she argues that the Harlow immunity did not apply when the discretionary act violated a clearly established statutory or constitutional right.

Defendants argue the following in connection with the section 1983 counts. Federal common law discretionary immunity applied to defendants as long as their actions were objectively reasonable. Section 3 — 606 of the Blinois Mental Health and Development Disabilities Code (Ill. Rev. Stat. 1991, ch. 91½, par. 3—606) permitted defendants to take plaintiff into custody. Because of the extreme nature of the situation and the clear authority provided to defendants, their actions were reasonable under the circumstances. There are no facts supporting plaintiff’s contention that defendants used excessive force. Even if excessive force was used, under the circumstances defendants’ conduct was objectively reasonable and they were immunized under qualified good-faith immunity. Defendants neither knew nor should have known that their conduct could have impinged on plaintiff’s constitutional rights.

In Harlow (457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727), senior aides and advisors of the United States president were defendants in a suit alleging violation of constitutional and statutory rights. The Court stated the following. Certain government officials had absolute immunity from suit but, in general, executive officials had only a qualified or “good-faith” immunity. (Harlow, 457 U.S. at 807, 73 L. Ed. 2d at 403, 102 S. Ct. at 2732.) Government officials performing discretionary functions generally were shielded from liability for civil damages insofar as their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. (Harlow, 457 U.S. at 818, 73 L. Ed. 2d at 410, 102 S. Ct. at 2738.) The objective reasonableness of an official’s conduct should be examined. (Harlow, 457 U.S. at 818, 73 L. Ed. 2d at 410, 102 S. Ct. at 2738.) On a summary judgment motion, the judge can determine the applicable law and whether it was clearly established. (Harlow, 457 U.S. at 818, 73 L. Ed. 2d at 410, 102 S. Ct. at 2738.) If the law was clearly established, the immunity defense should fail, barring extraordinary circumstances and proof that the official neither knew nor should have known of the relevant legal standard, because a reasonably competent public official should know the law governing his conduct. Harlow, 457 U.S. at 818-19, 73 L. Ed. 2d at 411, 102 S. Ct. at 2738.

In Malley v. Briggs (1986), 475 U.S. 335, 89 L. Ed. 2d 271, 106 S. Ct. 1092, the Court held that in order to determine whether one is immune under section 1983, it must be determined: (1) if there was a common law immunity from tort actions when the Civil Rights Act was enacted in 1871; and (2) whether section 1983’s history or purposes nonetheless counsel against recognizing the same immunity in section 1983 actions. (Malley, 475 U.S. at 339-40, 89 L. Ed. 2d at 277, 106 S. Ct. at 1095.) The parties do not address the issue of whether police officers and paramedics can be immune from section 1983 liability under the Federal doctrine of qualified or good-faith immunity, according to the test of Malley. But even if these defendants were qualifiedly immune, it cannot be determined on this record whether defendants violated clearly established fourth amendment law in connection with the search of plaintiff’s belongings and the use of force. Because qualified immunity is an affirmative defense, defendants had the burden of proving either that the law was not clearly established or, if the law was clearly established, that defendants neither knew nor should have known of the relevant legal standard. (Alexander v. Alexander (6th Cir. 1983), 706 F.2d 751, 754.) Defendants here did not meet this burden. In addition, because of the affirmative nature of the defense, it must be pleaded by defendant and thus is not an appropriate ground to support a motion to dismiss. (La Salle National Bank v. County of Lake (N.D. Ill. 1984) , 579 F. Supp. 8, 13 n.7.) Claims of qualified immunity are premature prior to the defendant filing an answer. Gavrilles v. O’Connor (D. Mass. 1984), 579 F. Supp. 301, 305.

The dismissal of counts I and II, which alleged section 1983 claims, is reversed on the basis that the trial court prematurely resolved the issue of qualified immunity. Perhaps with a more developed factual record upon a motion for summary judgment, the trial court can determine whether defendants should be immune for the allegedly unconstitutional behavior. See Maag v. Wessler (9th Cir. 1991), 944 F.2d 654, 657 (it was clear from officers’ depositions that they knew that they could take into protective custody any person who appeared to be a danger to himself and that they acted in reasonable good faith, and thus the court found that the officers were immune in the section 1983 case filed by a person taken into custody for medical evaluation).

Plaintiff finally argues that count VIII properly pleaded an action for intentional infliction of severe emotional distress, as set out in McGrath v. Fahey (1989), 126 Ill. 2d 78, 533 N.E.2d 806. According to McGrath, the elements of this tort are: (1) the conduct must be truly extreme and outrageous; (2) the actor must either intend that his conduct inflict severe emotional distress or know that there is at least a high probability that his conduct will cause severe emotional distress; and (3) the conduct must in fact cause severe emotional distress. (McGrath, 126 Ill. 2d at 86, 533 N.E.2d at 809.) The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. McGrath, 126 Ill. 2d at 86, 533 N.E.2d at 809, citing Restatement (Second) of Torts §46, Comment j, at 77-78 (1965).

The trial court properly dismissed count VIII on the basis that it did not allege extreme and outrageous conduct.

The dismissal of counts III, V, VII, and VIII is affirmed, the dismissal of counts I, II, IV, and VI is reversed, and the case is remanded.

Affirmed in part and reversed in part and remanded.

GREIMAN, P.J., and TULLY, J., concur.