author: JUSTICE TRAPP

text:
    MARK L. SCHANTZ et al., Adm’rs of the Estate of Norma J. Schantz, Deceased, Plaintiffs-Appellants, v. JANICE M. HODGE-VonDeBUR, Adm’r of the Estate of Forrest D. Hodge, Deceased, Defendant-Appellee.
    Fourth District
    No. 4—82—0617
    Opinion filed April 7, 1983.

      John J. Casey, of Casey & Casey, of Springfield, for appellants.
    Carol J. Hansen Fines and John L. Swartz, both of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., of Springfield, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

Plaintiffs Mark Schantz and Bradley Schantz, administrators of the estate of Norma Schantz, appeal from a pretrial ruling in plaintiffs’ suit for wrongful death granting defendant’s motion in limine to exclude the results of a coroner’s examination of decedent Forrest Hodge’s blood alcohol content. On certification by the trial court that the order involved a question of law to which there was a substantial ground for difference of opinion and that an immediate appeal would advance the determination of the litigation, this court granted plaintiffs’ application for leave to appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308).

The facts pertinent here show that on September 17, 1980, plaintiffs filed a wrongful death suit against the estate of Forrest D. Hodge, alleging negligence in the operation of a motor vehicle within the city of Springfield. The complaint alleged that Hodge was negligent in driving while intoxicated and in failing to keep a lookout for other vehicles. Plaintiffs alleged that as a result of this conduct plaintiffs’ decedent, a passenger in Hodge’s vehicle was killed.

After the accident, the coroner of Sangamon County took a blood sample from decedent Hodge which would allegedly show that at the time of the accident he had a blood alcohol content of .266%. Plaintiffs sought to admit this evidence at trial and on September 13, 1982, filed a request for pretrial ruling seeking a determination of whether the report was admissible. Defendant responded with a motion in limine which was granted by the court.

At the time of the accident, “An Act to revise the law in relation to coroners” (111. Rev. Stat. 1979, ch. 31, par. 1 et seq.) provided that the results of investigations by the coroner or the Department of Public Health of the blood alcohol level of a decedent were inadmissible in civil proceedings. Section 10(e) of the Act provided that in cases of accidental death involving a motor vehicle the coroner was required to take a blood specimen with the results to be statistically compiled by the Department of Public Health. Section 10(e) further provided that such examinations would be available for use only at the coroner’s inquest and for no other purpose. (111. Rev. Stat. 1979, ch. 31, ch. 10(e).) Effective January 1, 1982, this provision was eliminated by Public Act 82-221.1981 111. Laws 1220.

Section 3.01 of the Evidence Act (111. Rev. Stat. 1979, ch. 51, par. 3.01) and sections 11 — 501 and 11 — 501.1 of the Illinois Vehicle Code (111. Rev. Stat. 1979, ch. 951/2, pars. 11 — 501, 11 — 501.1) also implicitly excluded evidence of the results of tests conducted upon the decedent to determine blood alcohol absorption. Section 3.01 of the Evidence Act provided, in part:

“In any criminal action the records of the corner’s medical or laboratory examiner summarizing and detailing the performance of his official duties in performing medical examinations upon deceased persons or autopsies, or both *** shall be received as competent evidence in any court of this State ***.” (111. Rev. Stat. 1979, ch. 51, par. 3.01.)

This section was likewise amended by Public Act 82 — 221, which added the word “civil” before the word “criminal” in the first sentence of the statute.

Section 11 — 501 of the Illinois Vehicle Code also rendered inadmissible results of a chemical analysis of a decedent’s blood alcohol content since it required the consent of the person upon whom the test was performed as provided by section 11 — 501.1 of the Code and conditioned the admissibility of the test results upon such consent. Public Act 82 — 221 amended this section as well as section 11 — 501.1(e) to provide that in cases where evidence was obtained from a person who was deceased at the time the test was performed, such evidence would not be inadmissible solely for lack of consent.

On appeal, plaintiffs argue that these changes affected by Public Act 82 — 221 are modifications of the law of procedure and evidence and that amendments affecting such statutes may always be retroactively applied to transactions or considerations already passed. Defendant responds that no law may be retroactively applied when its effect is to alter a vested and protected right. We reverse.

A retroactive law has been defined as one which takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed. (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 204 N.E.2d 4; McAleer Buick-Pontiac Co. v. General Motors Corp. (1981), 95 Ill. App. 3d 111, 419 N.E.2d 608.) When deciding whether a statute should be given retrospective or prospective application, the focus is upon the intent of the legislature, absent which courts presume that the legislature intended its enactments to operate prospectively and not retrospectively. (McAleer Buick-Pontiac Co.) Not all cases of retroactive application of laws are prohibited; a law may be retroactively applied if it affects only remedies, matters of procedure, or rules of evidence which are at all times subject to modification by the legislature. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 415 N.E.2d 1034; Hyman-Michaels Co. v. Massachusetts Bonding & Insurance Co. (1955), 9 Ill. App. 2d 13, 132 N.E.2d 347; City Council of Waltham v. Vinciullo (1974), 364 Mass. 624, 307 N.E.2d 316; Unick v. Kessler Memorial Hospital (1969), 107 N.J. Super. 121, 257 A.2d 134; 82 C.J.S. Statutes sec. 424 (1953).) However, the mere fact that a law may be considered to affect only remedies or procedural matters does not insure that it will be retroactively applied if such application would deprive one of a vested right. (Hogan v. Bleeker (1963), 29 Ill. 2d 181, 193 N.E.2d 844.) At bar, no contention is made by the defendant that anything other than a rule of evidence or procedure is involved. Defendant’s contention is that these changes, though perhaps relating to rules of evidence or procedure, bring about a change in the prior law and upset a vested right acquired thereunder.

In support of defendant’s position they rely upon Hogan and People v. Theo (1971), 133 Ill. App. 2d 684, 273 N.E.2d 498, and a number of cases decided prior to Public Act 82 — 221 interpreting the various sections which have been heretofore set out. See Mason v. Mundelein Lanes, Inc. (1979), 72 Ill. App. 3d 990, 391 N.E.2d 151; People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497; People v. Williams (1981), 103 Ill. App. 3d 876, 431 N.E.2d 1280.

The latter group of cases decided under the law prior to its amendment are inapposite here. These cases involve neither a retroactive application of a statute nor a discussion of a vested right. Hogan, cited by defendant, involved a retroactive application of a law which interfered with a contract previously entered into and Theo considered an amendment to procedural rules governing the assertion of fourth amendment claims in criminal cases. Just what vested rights a deceased may have is not pointed out by defendant, nor are we able to discern any vested right. No contract was entered into and no question involving the assertion of a constitutional right is presented. The changes made by the amendment do not declare for the first time in this State that evidence of intoxication is relevant and admissible in wrongful death proceedings; evidence of intoxication being admissible, the statute merely provides that evidence of intoxication obtained from various sources shall not be inadmissible because of the absence of consent. Though the amendments do effect a change in the prior law, decedent has no vested rights in the public law (People ex rel. Allied Bridge & Construction Co. v. McKibbin (1942), 380 Ill. 63, 43 N.E.2d 550) and certainly defendant is not prejudiced here by any claim of prior reliance on the law. The trial court’s decision to refuse to apply this statute runs counter to the numerous decisions heretofore cited.

In light of the foregoing, the trial court’s order granting defendant’s motion in limine is reversed and the matter is remanded for further proceedings.

Reversed and remanded.

WEBBER, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE VAN DEUSEN

license: Public Domain

text:
    CARL SOSTAK, Plaintiff and Respondent-Appellee, v. LILLIAN SOSTAK, Defendant and Petitioner-Appellant.
    Second District
    No. 82—405
    Opinion filed April 6, 1983.

      Bonnie M. Wheaton, of William J. Wylie & Associates, of Wheaton, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton, for appellee.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

This appeal, brought by petitioner, Lillian Sostak, arises from an order of the circuit court of Du Page County which required respondent, Carl Sostak, to pay to petitioner, Lillian Sostak, a $3,532.50 child support arrearage at a rate of $100 per month, and further required him to pay $250 towards the petitioner’s $665 attorney fee.

On appeal, petitioner’s principal contentions are that (1) the trial court abused its discretion by failing to assess higher monthly installment of arrearage payments against respondent and (2) in failing to pay petitioner’s attorney fees in their entirety.

The parties were divorced on November 21, 1974. Respondent was ordered to pay $375 per month in child support for their five minor children. This sum was reduced periodically as the children became emancipated. As of June 1981, respondent was required to pay $150 per month in support.

On November 4, 1981, petitioner filed a petition for a rule to show cause in connection with a support arrearage which had been accumulating since 1978. The petition was later amended to include a prayer for reasonable attorney fees. Prior to the hearing on the matter, the parties stipulated to an arrearage amount of $3,532.50. Petitioner waived a hearing on the issue of contempt, and the hearing was limited to the trial court’s determination of the reasonable amounts of the arrearage that respondent should pay on a monthly installment basis and petitioner’s entitlement to attorney fees.

At the hearing, respondent testified that his household included his present wife and her 18-year-old son. Respondent’s net monthly income is $1,645.40, his present wife’s net monthly income is approximately $1,200 per month, and their household expenses are $2,263.50 per month including child support. Respondent owns both his and petitioner’s homes in joint tenancy with his second wife, although petitioner’s home is subject to two mortgages. He is paying the mortgages on both homes, but he may not sell petitioner’s home for approximately five more years pursuant to the original divorce decree. Respondent indicated that, for the past five years, his expenses have exceeded net income by approximately $600 per month. During the past year he sold his 1977 Cadillac and 1940 Packard in order to meet living expenses.

* His income ranged from approximately $22,000 to $29,000 during the years in which the arrearage arose.

The trial court ordered respondent to repay the arrearage at a rate of $100 per month and required him to pay $250 toward petitioner’s $665 attorney fees. Thereafter, petitioner filed a motion for entry of findings in connection with the arrearage repayment and the assessment of attorney fees. The court denied the motion but did conclude that petitioner’s attorney fees were reasonable. This appeal followed.

We note that respondent has not filed a brief on appeal. This court is not obligated to act as an advocate or search the record to affirm the judgment of the trial court; however, a considered judgment of the trial court should not be set aside without some consideration of the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131.

Petitioner’s first contention is that the trial court erred by not making specific findings in connection with respondent’s ability to pay the arrearages. Petitioner is correct that a trial court should make definite findings or in any event make clear from the record the relevant factors it considered in rendering a decision under sections 501 through 515 of the Illinois Marriage and Dissolution of Marriage Act. (111. Rev. Stat. 1981, ch. 40, pars. 501 through 515; see, e.g., In re Marriage of Amato (1980), 80 Ill. App. 3d 395 (re section 503 of the Act).) However, reviewing courts have uniformly held that where the record is adequate to provide a basis upon which to review the propriety of the decision, and where that decision is supported by the evidence, the reviewing court will not reverse solely because special findings are lacking. (See, e.g., In re Marriage of Stallings (1979), 75 Ill. App. 3d 96 (re section 503); In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010 (re sections 504 and 505); In re Marriage of Chalkley (1981), 99 Ill. App. 3d 478, 483 n.4 (re section 510).) Here, respondent testified extensively as to his financial status, thereby providing this court with an adequate basis upon which to review the repayment schedule.

Petitioner’s citation of In re Custody of Harne (1979), 77 Ill. 2d 414, is not of assistance. In Harne, our supreme court required explicit findings of fact in connection with a decision to modify child custody under section 610 of the Act. In so holding, the court noted a strong underlying legislative policy against modification of custody unless the trial court finds that certain explicit conditions have been established by the evidence. The same policy applies for modification of visitation under section 607 and, consequently, specific findings would be required. In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 906-07.

Here, it is true that past due installments of child support are a vested right which the trial court cannot terminate or modify as to the amount or time of payment absent a valid defense. (In re Marriage of McDavid (1981), 97 Ill. App. 3d 1044, 1050; Lewis v. Staub (1981), 95 Ill. App. 3d 243, 248.) But, in a situation such as the instant case, where petitioner waives this vested right and specifically requests the court to set up an installment schedule, there does not appear to be any legislative policy which would mandate specific findings so long as the record provides a basis upon which to review the decision.

Petitioner also contends that the $100 per month assessment was palpably inadequate and should be increased to at least $225 per month. As indicated above, petitioner had a vested right to the arrearages and the court could not reduce them absent a valid defense. However, under certain circumstances, such as where the parties agree to reduce payments, this vested right may be waived. (Matzen v. Matzen (1979), 69 Ill. App. 3d 69, 72.) Here, petitioner waived in part her vested right to enforce the manner in which arrearage payments may be collected, and made a joint request with respondent that the court determine respondent’s monthly arrearage payment. Now that the court has complied with the parties’ request by assessing respondent’s ability to pay and has allocated a monthly payment accordingly, petitioner asserts that the monthly payment amount is inadequate and constituted an abuse of the court’s discretion.

Respondent testified that his expenses exceeded net income by approximately $600 per month. Respondent has had to sell his 1977 Cadillac and 1940 Packard in order to meet his family’s living expenses. He is paying the mortgage on both his and petitioner’s home, although he may not sell her home for at least five years pursuant to the original divorce decree. Additionally, he is already paying $150 per month in child support. Based upon this evidence, the trial court required respondent to pay the arrearage at a rate of $100 per month. While the amount of the monthly installment could certainly have been higher, we cannot say that it was so unreasonable as to constitute an abuse of the trial court’s discretion, and therefore we are required to affirm the trial court’s order on this issue.

Petitioner also contends that respondent should have been required to pay all of her attorney fees pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 508(b)). Further, she contends that the court’s failure to make findings of fact in connection with the refusal to require said payment of fees constituted error.

Prior to January 1, 1982, section 508 of the Illinois Marriage and Dissolution of Marriage Act provided that a trial court “may” order either spouse to pay the other’s attorney fees for, inter alia, the enforcement or modification of any order under the Act (HI. Rev. Stat. 1979, ch. 40, par. 508(a)). On January 1, the statute was amended to except the enforcement of a child support order from the general permissive language of the section (111. Rev. Stat. 1981, ch. 40, par. 508(aX2)). Additionally, a new subsection (b) was added which provides:

“In every proceeding for the enforcement of an order or judgment for child support in which relief is granted to the parent having custody of the child and the court finds that the failure to pay child support was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the custodial parent’s costs and reasonable attorney’s fees.” (Emphasis added.) 111. Rev. Stat. 1981, ch. 40, par. 508(b).

In the instant case, the trial court held that the foregoing statute was applicable to the subject proceedings and that petitioner’s attorney fees were reasonable. However, the court asserted that it retained discretion under the new amendment to apportion petitioner’s attorney fees between the two parties and refused to make a finding as to whether respondent’s failure to pay child support was without cause or justification.

Since the arrearages arose, and the petition was filed, prior to the effective date of this amendment, we must first determine whether the amendment may be applied retroactively. “An amendatory act ordinarily is construed as prospective, and not as retroactive, in the absence of express language declaring it to be retroactive. [Citations.]” (People ex rel. Saam v. Village of Green Oaks (1965), 55 Ill. App. 2d 51, 54.) There was no clause in the amendment making it retroactive.

The amendment in question, however, does not change any vested rights of the parties but merely affects the remedy of the petitioner to secure reasonable attorney fees incurred to enforce a child support order. Where an amendment is remedial in nature, all rights of action thereunder will be enforceable under the new procedure without regard to whether they accrued before or after such change of law or whether the suit had been instituted or not, unless there is a savings clause as to existing litigation. (Nelson v. Miller (1957), 11 Ill. 2d 378, 382.) The amendment here contained no savings clause. Since the provisions of section 508, both before and after the amendment, were remedial in nature, the trial court correctly applied the amendment retroactively in this matter. Winter & Hirsch, Inc. v. Passarelli (1970), 122 Ill. App. 2d 372, 384-85; see also People v. Myers (1977), 44 Ill. App. 3d 860.

Since the amendment was applicable here, it did require the court to assess petitioner’s reasonable attorney fees against respondent if the court found no cause or justification for the arrearage. In construing the statute, we are mindful that a primary rule of statutory construction requires a court to ascertain the intention of the legislature and give it effect. In so doing, the language of the statute must be given its plain and ordinary meaning. (In re Marriage of Justema (1981), 95 Ill. App. 3d 483, 488.) The subject amendment utilizes the term “shall” in connection with the assessment of fees. The word “shall” in a statute may be defined as “must” or “may” depending upon the context and intent of the drafter. (Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 268.) Generally, however, use of the words “shall” or “must” in a statute is regarded as mandatory. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 21.) Here, in view of the manner and context in which the statute was amended, it is evident that the legislature intended a mandatory construction. The statute originally vested trial courts with discretion with regard to the assessment of attorney fees. (111. Rev. Stat. 1979, ch. 40, par. 508(a); see Coons v. Wilder (1981), 93 Ill. App. 3d 127, 135-36.) However, the amendment specifically culled out orders dealing with the enforcement of child support arrearages and required that they “shall” be assessed in the absence of cause or justification for the lack of payment and divested the trial court of its discretion. The statute is mandatory.

In view of the mandatory nature of the statute, the trial court was required to determine whether or not respondent’s failure to pay support was without cause or justification, and if so, to award petitioner the full amount of the attorney fees which the court determined to be reasonable. Although trial courts have not generally been required to enunciate specific findings of fact in connection with the assessment of fees under section 508 (Gauger v. Gauger (1979), 70 Ill. App. 3d 378, 384; Smith v. Smith (1977), 47 Ill. App. 3d 583, 587; Rattray v. Rattray (1976), 43 Ill. App. 3d 853, 856), the amendment clearly obligates the court to consider the cause or justification issue in the same fashion that section 510 requires the court to consider the “substantial change of circumstances” issue. Here, the trial court refused to consider the issue and make the finding because it erroneously believed that it was not required to comply with section 508(b) in ruling on the petition for attorney fees.

The trial court erred in refusing to consider this issue. It is, therefore, necessary that this matter be remanded to the trial court with directions to the trial court that it further consider the evidence already heard and determine the issue of whether the respondent’s failure to pay child support was without cause or justification. If upon remand the trial court determines that the respondent’s failure to pay child support was without cause or justification, it shall modify its order directing Carl Sostak to pay William J. Wylie & Associates, P.C., the sum of $250 towards Lillian Sostak’s attorney fees by increasing the amount payable pursuant to said order from $250 to $665, the amount of attorney fees which the trial court has already determined to be reasonable.

As respondent has not filed a cross-appeal in this matter, and has not sought to set aside the judgment against him for attorney fees, if upon remand the trial court should find that respondent’s failure to pay child support was with cause or justification, we direct that the trial court reaffirm its order directing respondent to pay attorney fees in the sum of $250. The trial court’s order of April 22, 1982, is otherwise affirmed.

Affirmed as conditionally modified and remanded to the trial court for further proceedings consistent with this opinion.

NASH and LINDBERG, JJ., concur.


author: JUSTICE LINDBERG

text:
    MIDWEST BANK AND TRUST COMPANY, Trustee, et al., Plaintiffs-Appellants, v. THE VILLAGE OF LAKEWOOD et al., Defendants-Appellees.
    Second District
    No. 82—573
    Opinion filed April 8, 1983.

      Daniel A. Mengeling, of Johnson and Mengeling, of Woodstock, for appellants.
    Richard G. Flood and Sherry L. Holland, both of Zukowski, Poper, Rogers and Flood, of Crystal Lake, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Landowners’ complaint against the village of Lakewood and its president and trustees was dismissed by the trial court upon defendants’ oral motion at the commencement of the trial. Because the motion was improperly considered, we reverse the dismissal of the complaint as against the village and remand. We affirm, however, the dismissal of the complaint as against the other defendants on the basis that it failed to state a cause of action.

Plaintiffs are owners of real property in the village of Lakewood (village). Plaintiffs’ complaint alleges that the village, through its agent, had filed a notice of claim of lien with the recorder of deeds of McHenry County against their property. The complaint, alleging that no right to the lien exists, prays for a declaratory judgment to that effect, a mandatory injunction requiring removal of the lien, and compensatory and exemplary damages for the tort of slander of title. Named as defendants are the village and the following individuals (hereinafter called the trustees): Harry D. Benoy, village board president; and Jamie P. Alexander, Edward Dvorak, Fredrick Ohlrich, T. Keith Davis, Stanley Kopala, and Conrad Byrd, all village trustees.

Defendants’ answer denied liability, but did not raise any affirmative matters. On December 30, 1981, the trial court denied plaintiffs’ motion for summary judgment on the grounds that issues of fact existed as to certain allegations of the complaint, including validity of the lien in question.

On May 21, 1982, the day set for trial, defendants made an oral motion to strike and dismiss during their opening argument. Defendants contended that immunities established by the Local Governmental and Governmental Employees Tort Immunity Act (111. Rev. Stat. 1981, ch. 85, par. 1 — 101 et seq.) precluded money damages liability against them and that the equitable relief was barred by plaintiffs’ failure to join all necessary parties. The trial court on that date entered an order dismissing the entire complaint without granting leave to amend.

On June 23, 1982, the trial court denied plaintiffs’ motion for reconsideration while including the specific findings upon which it based its dismissal. On July 7, 1982, the court denied plaintiffs’ second motion for reconsideration because it was filed more than 30 days after the dismissal order. However, the court in its July 7 order did amend nunc pro tunc its May 21 dismissal order to grant leave to plaintiffs to amend their complaint. The court also found that there was no just reason for delaying the appeal of its decision dismissing the request for money damages and permitting amendment to the complaint.

On July 23, 1982, plaintiffs filed their second amended complaint, seeking only declaratory and injunctive relief, and a notice of appeal seeking reversal of the orders of May 21,1982, and June 23,1982.

On appeal, plaintiffs maintain that this is an interlocutory appeal taken only from that part of the order of dismissal pertaining to plaintiffs’ action for damages. They contend first that the trial court erred in entertaining defendants’ motion to dismiss and second, that the Local Governmental and Governmental Employees Tort Immunity Act protects neither the village nor the trustees from liability in this case. Plaintiffs do concede however, that their complaint fails to state a cause of action against the trustees and indicate their intention of amending their complaint to cure that defect upon remand.

The first issue to which we must address ourselves is the confusion concerning the scope of this appeal. Defendants’ original contention that this court should affirm the trial court’s dismissal of the portion of the complaint seeking declaratory and equitable (hereinafter called equitable) relief as well as that portion seeking money damages, presupposes that the dismissal of the equitable relief portion of the complaint has been appealed to this court. Plaintiffs, on the other hand, argue that their appeal was taken only from the dismissal of the money damages portion of their complaint. They assign error in their brief only as to the money damages part of the dismissal. Although the May 21 and June 23 orders from which this appeal is taken and plaintiffs’ June 23 notice of appeal all deal with the dismissal of the whole complaint, plaintiffs point to the following: (1) the July 7 order amending the dismissal order to grant them leave to amend their complaint and finding no just reason for delaying appeal on the damages dismissal; and (2) the July 23 filing of their amended complaint addressed only to equitable relief. Thus, plaintiffs argue, the equitable portion of their action, in the form of their second amended complaint, is still pending before the trial court and was not transferred to this court by the July 23 filing of their notice of appeal.

At oral argument, defendants indicated their desire no longer to press their position that the appeal encompasses the entire dismissal order. However, questions of jurisdiction must be raised by the reviewing court sua sponte even where the parties make no reference to its presence or absence. (In re Application of County Collector (1981), 95 Ill. App. 3d 1118, 420 N.E.2d 1055.) Of necessity, this court is obligated to consider matters which affect its right and duty to proceed in its exercise of appealable jurisdiction. (See Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 430 N.E.2d 139.) Accordingly, we cannot ignore the invalidity of the July 7 order granting leave to amend the complaint upon which plaintiffs rely to limit the scope of this appeal.

A trial court is without jurisdiction to amend its own final order more than 30 days after the entry of that order, except by way of a nunc pro tunc order. (Bradley v. Burrell (1981), 97 Ill. App. 3d 979, 424 N.E.2d 15.) Plaintiffs’ motion requesting the amendment, as a second post-judgment motion filed more than 30 days after judgment, could not serve to extend the trial court’s jurisdiction beyond that 30-day period. (See Sears v. Sears (1981), 85 Ill. 2d 253.) The purpose of a nunc pro tunc order is to correct a prior order which incorrectly reflects the trial court’s ruling; it may not be used to supply omitted judicial action, correct judicial errors or correct prior orders. (Bradley v. Burrell.) The record clearly indicates in this case that the trial court had no intention of granting plaintiffs leave to amend until after the entry of its final dismissal order. Thus, the trial court’s July 7 amendment to the dismissal order was void.

We also note that the July 7 amendment order could not have been authorized by section 2 — 616 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 2 — 616), which section limits amendments to pleadings, except to conform the pleadings to the proofs, to “anytime before final judgment,” nor by section 2 — 1203 of the Code (111. Rev. Stat. 1981, ch. 110, par. 2 — 1203), which, while authorizing a motion for certain kinds of relief within 30 days after judgment, does not encompass a leave to file an amended complaint. Fultz v. Haugan (1971), 49 Ill. 2d 131; First National Bank v. City of Aurora (1978), 71 Ill. 2d 1.

Since the trial court’s leave to amend the complaint was invalid, the July 23 filing of the amended complaint was invalid as done without proper leave. An amendment to a pleading which is filed without leave of court to do so may be stricken and must be disregarded on review. (In re Marriage of Peoples (1981), 96 Ill. App. 3d 94, 420 N.E.2d 1072.) Thus, at the time of the filing of the notice of appeal, the entire complaint remained dismissed and subject to appeal.

Supreme Court Rule 303 (87 Ill. 2d R. 303) provides that the notice of appeal shall specify the judgment or part thereof from which the appeal is taken. When an order is severable an appeal can be taken from the severable portion or from a part dealing with a particular subject. (Layfer v. Tucker (1979), 71 Ill. App. 3d 333, 389 N.E.2d 252.) Here, the notice of appeal, while specifying particular relief, does not specify any part of the orders of May 21 and June 23 as the subject of the appeal. Without that specification and with the entirety of the complaint subject to appeal, we hold that the dismissal of the entire complaint, including that portion seeking equitable relief, is now before this court on appeal. On that basis, we proceed to the other issues.

Plaintiffs first contend that the trial court improperly considered defendants’ oral “motion to strike and dismiss.” Defendants’ motion sought dismissal of plaintiffs’ cause because plaintiffs were not entitled to relief as a matter of law. With regard to the damages portion of the complaint, defendants’ motion was based upon the statutory immunities established in the Local Governmental and Governmental Employees Tort Immunity Act (hereinafter cited as the Act) (111. Rev. Stat. 1981, ch. 85, par. 1 — 101 et seq.). The motion was made orally during the opening statements at trial. There had been no formal notice to plaintiffs of the motion.

Plaintiffs objected to the trial court’s consideration of defendants’ motion because it was not made until trial, because plaintiffs were not given notice, and because the motion was oral rather than written. Plaintiffs maintain that the defense the motion raises is in the nature of an affirmative defense and as such should have been pleaded. (See 111. Rev. Stat. 1981, ch. 110, par. 43(4).) Plaintiffs argue that the motion cannot be characterized as anything but a motion for summary judgment, and as such fails to meet the formalities requirements of that type of motion.

Defendants respond that their motion was a motion to dismiss for failure to state a cause of action and, therefore, could be raised and given consideration at any stage of the proceeding. Alternatively, defendants argue that their motion, in effect, asks leave to amend their pleadings to include the statutory immunity defense.

Thus, in order to resolve the question of the propriety of the trial court’s consideration of defendants’ motion, our analysis focuses on the characterization of that motion. To make that characterization, we refer to the three relevant sections of the former Civil Practice Act. Sections 45, 48, and 57 dealt with motions with respect to pleadings, involuntary dismissals based upon certain defects or defenses, and summary judgments, respectively. 111. Rev. Stat. 1981, ch. 110, pars. 45. 48. 57.

Initially, we conclude that statutory governmental tort immunity under the Act is an affirmative defense. Although defendants are correct in stating that the defense is not one of those expressly listed in section 43(4), which requires pleading of affirmative defenses, that section does not limit its application to the expressly named defenses. Rather, it also includes “any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the complaint *** and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise ***.” (111. Rev. Stat. 1981, ch. 110, par. 43(4).) Immunity under the Act from liability for an otherwise sufficiently alleged tort fits that definition. Defendants’ argument that the defense cannot be an affirmative one in that it is statutory is shown to be meritless by the fact that section 43(4) expressly lists the Statute of Frauds (111. Rev. Stat. 1981, ch. 59, par. 1 et seq.) and other statutory matters as affirmative defenses.

We find further support for our conclusion that immunity under the Act is an affirmative defense in our supreme court’s holding in Hansen v. Raleigh (1945), 391 Ill. 536, that the benefits of the former Firemen’s Immunity Act (111. Laws 1931, at 618) must be invoked as an affirmative defense under section 43(4) and in those cases holding that the immunities created by the Act are not absolute and may be waived (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1; Melbourne Corp. v. City of Chicago (1979), 76 Ill. App. 3d 595, 394 N.E.2d 1291).

Because of this conclusion, defendants’ motion should not be characterized as a section 45 motion, which in fact is what defendants try to do by asserting that the motion was based on the insufficiency of the complaint as a matter of law for failure to state a cause of action. (See 111. Rev. Stat. 1981, ch. 110, par. 45; Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 325 N.E.2d 799.) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle the plaintiffs to relief. (Cain v. American National Bank & Trust Co.) Here, defendants’ motion did not challenge the sufficiency of the complaint on its face, but rather raised an affirmative defense of immunity.

Because defendants’ motion seeks dismissal based on an affirmative defense, it may be viewed as a section 48 motion for involuntary dismissal. That section provides that “[defendant may, within the time for pleading, file a motion for dismissal of the action *** upon any of the following grounds. *** (i) That the claim or demand asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim or demand.” (III. Rev. Stat. 1981, ch. 110, par. 48.) In Russo v. Boland (1982), 103 Ill. App. 3d 905, 431 N.E.2d 1294, the court held that a motion to dismiss based upon the defense of the preemption provisions of the Employee Retirement Income Security Act (29 U.S.C. sec. 1144 (1976)) asserted no facts contradicting those in the complaint and raised as an affirmative defense a question of law so as to be a motion properly considered under subsection 48(l)(i). In Appelman v. Appelman (1980), 87 Ill. App. 3d 749, 410 N.E.2d 199, the court construed a motion to dismiss which was not specifically brought under either section 45 or section 48 to be a motion pursuant to section 48(l)(i) because it raised an affirmative matter not apparent on the face of the complaint. That is precisely the situation here.

As a section 48 motion, however, defendants’ motion was untimely. Defendants’ answer was on file and the trial of the cause was beginning when defendants’ oral motion was made. Clearly, this motion was not made “within the time for pleading,” as required by the statute. Although a trial court in its discretion may allow a defendant to withdraw an answer and then file a motion to dismiss based upon a defense not raised in the withdrawn answer (Morris v. Goldthorp (1945), 390 Ill. 186; Davidson v. Olivia (1958), 18 Ill. App. 2d 149, 151 N.E.2d 345), the motion to dismiss here was made, considered, and granted after defendants’ answer was filed and the trial had begun. Defendants at no time sought withdrawal of their answer.

It is possible, as plaintiffs argue, to characterize defendants’ motion as a motion for summary judgment. A motion for summary judgment will only be granted where the pleadings, affidavits, depositions, and other documents demonstrate that there is no genuine issue of material fact which would warrant trying the case. (111. Rev. Stat. 1981, ch. 110, par. 57; Dale v. Groebe & Co. (1981), 103 Ill. App. 3d 649, 431 N.E.2d 1107.) Although there may exist an issue of fact, the trial court, when viewing the evidence in the light most favorable to the nonmoving party, may grant summary judgment where it concludes that, as a matter of law, no liability exists. (Dale v. Groebe & Co.) Illinois law permits a defendant to file a motion for summary judgment at any time. (Florsheim v. Travelers Indemnity Co. (1979), 75 Ill. App. 3d 298, 393 N.E.2d 1223.) An affirmative defense may be raised in the motion for summary judgment even though it was not raised in pleadings. Florsheim v. Travelers Indemnity Co.; Harris Trust & Savings Bank v. Illinois Fair Plan Association (1979), 68 Ill. App. 3d 934, 386 N.E.2d 341.

As a motion for summary judgment, however, defendants’ motion lacked adequate notice to plaintiffs. The record shows that defendants’ motion was made orally with no notice on record. Failure to provide notice to the opposing party and a reasonable amount of time to prepare a response precludes the granting of a motion for summary judgment. (Deaton v. Lloyd’s Jewelry Co. (1972), 7 Ill. App. 3d 926, 289 N.E.2d 123.) Although the trial court permitted plaintiffs to orally respond to defendants’ motion at the time it was made, the motion itself came without prior notice to plaintiffs, who were given no time to prepare a response.

We find no merit in defendants’ alternative argument for the propriety of the consideration of its motion to dismiss. Defendants contend that their motion may be considered in effect a motion to amend their pleadings to add the defense of tort immunity under the Act. Defendants correctly point out that subsection 46(1) (Ill. Rev. Stat. 1981, ch. 110, par. 46(1)) permitted them to move to amend their pleadings to add a new defense. Defendants also contend that section 46.1 (111. Rev. Stat. 1981, ch. 110, par. 46.1) provides that seeking a wrong remedy {i. e., dismissal rather than amendment to pleadings) in their motion is not fatal. In fact, a close reading of section 46.1 reveals that the wrong remedy it deals with is that sought in a plaintiff’s complaint rather than, as here, a defendant’s motion to dismiss. Assuming, however, that the trial court in its discretion could properly have considered defendants’ motion as a motion to amend their pleadings, the record shows that this is not what the trial court actually did. Defendants sought dismissal, and that is what the trial court granted. By granting dismissal upon the oral motion without an amendment to defendants’ answer, the trial court denied plaintiffs the opportunity to respond to the newly raised affirmative defense. Even if seeking the wrong remedy should not have been a fatal defect in defendants’ motion, the trial court’s granting of the wrong remedy is fatal upon review.

Defendants also argue that any error resulting from the trial court’s consideration in granting the motion to dismiss was harmless because plaintiffs had opportunity to investigate the newly raised affirmative defense after dismissal but before hearing on plaintiffs’ motion to reconsider the dismissal. Plaintiffs argue prejudice in that full investigation would not have been possible because discovery was not available to them after dismissal of the cause. Plaintiffs correctly note that there is no authority specifically permitting post-dismissal discovery; but neither is there authority denying use of discovery after dismissal. (See 87 Ill. 2d Rules 201 through 219); Slatten v. City of Chi cago (1973), 12 Ill. App. 3d 808, 299 N.E.2d 442.) The question of permissibility of post-trial use of discovery was raised but not decided in Darrough v. White Motor Co. (1979), 74 Ill. App. 3d 560, 393 N.E.2d 122, where the court noted the lack of cases concerning the question. Thus, the permissibility of post-dismissal use of discovery appears to be an open question. We find the possible inability of plaintiffs to conduct discovery after dismissal to constitute sufficient prejudice resulting from the trial court’s error in entertaining and granting defendants’ motion without adequate notice to warrant reversal.

As we decided that the dismissal of the equitable relief portion of the complaint is also before us on appeal, we now address ourselves to the propriety of that part of the trial court’s order of dismissal. Because plaintiffs were under the mistaken belief that their appeal did not encompass the dismissal of the equitable relief portion of their complaint, they have not assigned error specifically to the trial court’s consideration of defendants’ motion to dismiss with regard to that part of their action. Although plaintiffs’ failure to argue this issue might be considered waiver (87 Ill. 2d R. 341(e)(7)), this court may, in the exercise of its responsibility for a just result, ignore considerations of waiver and decide the issue on grounds not properly argued by a party. (Hux v. Raben (1967), 38 Ill. 2d 223; Anderson v. Smith (1980), 91 Ill. App. 3d 938, 415 N.E.2d 643.) In view of plaintiffs’ understandable misconception of the scope of their appeal, we reach this issue despite the absence of argument on plaintiffs’ part.

During the May 21, 1982, proceedings before the trial court at which defendants raised their oral motion to dismiss, defendants briefly contended that plaintiffs had failed to properly join all necessary parties. The trial court’s May 21 dismissal order listed only the Act as the basis for dismissal. However, the trial court’s June 23 order denying plaintiffs’ motion for reconsideration of the dismissal included findings that the equitable relief request by the complaint required that all necessary parties be joined and that all necessary parties were not joined. Defendants concede that the Act provides no immunity from equitable relief. (111. Rev. Stat. 1981, ch. 85, par. 2— 101.) Thus, it appears that the trial court’s sole basis for dismissing the equitable relief portion of the complaint was plaintiffs’ failure to join the necessary parties.

However, joinder problems, such as failure to join necessary parties, are not grounds for dismissing the entire action or striking the complaint; rather, the proper remedy is to order the missing party be added. (Horwath v. Parker (1979), 72 Ill. App. 3d 128, 390 N.E.2d 72.) Therefore, the trial court’s dismissal of the equitable relief portion of the complaint was an improper remedy and warrants reversal.

Plaintiffs’ second contention is that the trial court erred in ruling that the Act provides immunity to the village and the trustees under the facts of this case. With regard to the village, defendants argue that both section 2 — 107 (111. Rev. Stat. 1981, ch. 85, par. 2 — 107) and the interaction of sections 2 — 109, 2 — 201, and 2 — 208 (111. Rev. Stat. 1981, ch. 85, pars. 2 — 109, 2 — 201, 2 — 208) shield it from liability. In view of our determination that the motion to dismiss was improperly considered and that a remand is necessary, we do not reach the question of the Act’s application to the village’s liability on this appeal.

However, our disposition is different with regard to the trustees. Defendants contend and plaintiffs concede that, whether immunity under the Act applies or not, the complaint failed to state a cause of action against the trustees. It is well established that when a complaint has been dismissed, the dismissal will be upheld upon any basis found in the record. (White Fence Farm, Inc. v. Land & Lakes Co. (1981), 99 Ill. App. 3d 234, 424 N.E.2d 1370; Ording v. Springer (1980), 88 Ill. App. 3d 243, 410 N.E.2d 428; Keck v. Keck (1974), 56 Ill. 2d 508.) If it appears as a matter of law that the complaint fails to state a cause of action, an objection may be made to it at any time by any means and such objection may be raised for the first time on appeal. (Psyhogios v. Village of Skokie (1972), 4 Ill. App. 3d 186, 280 N.E.2d 552; Ording v. Springer.) Thus, although defendants’ motion to dismiss came too late to be properly granted as a section 48 motion and came with insufficient notice to be properly granted as a motion for summary judgment, we affirm that portion of the dismissal relating to the trustees on the basis of failure to state a cause of action as against those defendants only.

Plaintiffs contend that on remand they should be permitted to amend their complaint to state a cause of action against the trustees. Although we remand the cause as against the village, we affirm the dismissal as against the trustees. Thus, the cause against the trustees is concluded and there will be no complaint against the trustees on remand for plaintiffs to amend.

In reaching this disposition, we note that we make no further determination of the merits of plaintiffs’ action and defendants’ defenses and no determination whether defendants’ defense of immunity under the Act has in any manner been waived.

Accordingly, we affirm the dismissal of the complaint as against the defendant trustees and reverse the dismissal of the complaint as against the defendant village and remand to the circuit court of McHenry County for further proceedings not inconsistent with this opinion. In light of our disposition that does not reach the merits of the issues to which the challenged portions of appellees’ brief are addressed, plaintiffs-appellants’ motion to strike certain portions of appellees’ brief is denied.

Affirmed in part, reversed in part, and remanded.

SEIDENFELD, P.J., and HOPE, J., concur.


author: JUSTICE SCOTT

text:
    DORA LARSON, Adm’r of the Estate of and Personal Representative of Victoria Joelle Larson, Deceased, Plaintiff-Appellant, v. SCOTT DARNELL et al., Defendants-Appellees.
    Third District
    No. 82-471
    Opinion filed April 14, 1983.
    Gerald J. Meehan and William M. Walker, both of Coryn, Walker and Meehan, of Rock Island, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Karen Konieczny, Assistant Attorney General, of counsel), for appellees.
   JUSTICE SCOTT

delivered the opinion of the court:

On July 12, 1979, 12-year-old Vicki Larson was raped and murdered by Scott Darnell. Scott Darnell, a minor, had been the subject of numerous juvenile court proceedings resulting in intermittent treatment, institutionalization, and even incarceration. One month before he murdered Vicki Larson, he was released from incarceration and placed in the custody of a parole officer. The estate of Vicki Larson filed this action seeking recovery for wrongful death and for the conscious pain and suffering of the decedent, naming as defendants Scott Darnell, Gayle Franzen, the Director of the Illinois Department of Corrections, and James Stanbary, Darnell’s parole officer.

The complaint alleges that defendant Franzen negligently, and in the alternative wilfully and wantonly, released Darnell from incarceration knowing that he was a threat to society. Further, the complaint alleges that after release, defendant Stanbary negligently, and in the alternative wilfully and wantonly, failed to properly supervise and control Darnell. Ruling on a motion filed by the defendants Franzen and Stanbary pursuant to section 48 of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 48), the circuit court of Henry County dismissed the complaint against the two public officials. In doing so, the circuit court entered the following findings:

“1. That the conduct of defendant Franzen and defendant Stanbary as alleged in plaintiff’s complaint, was, from a factual standpoint, ministerial.
2. That, not withstanding the above factual analysis, under Illinois law, such conduct is considered ‘discretionary’ as a matter of law.
3. Further, that despite the abolition of sovereign immunity by the 1970 Illinois Constitution, the statutes in case law of this State have effectively reinstated such immunity and defendant Franzen and defendant Stanbary are protected by it.”

It further appears from the circuit court order, and from the briefs of the parties before this court, that the circuit judge concluded that the cause of action against Franzen and Stanbary was barred for either one of two reasons, to-wit: sovereign immunity or public-official immunity.

It is well established that a public official is immune from individual liability for the performance of discretionary duties undertaken in good faith. (Mora v. State (1977), 68 Ill. 2d 223, 369 N.E.2d 868; People ex rel. Scott v. Briceland (1976), 65 Ill. 2d 485, 359 N.E.2d 149.) The circuit court entered a finding that the action of Franzen in releasing Darnell and the action of Stanbary in supervising Darnell were, from a factual standpoint, ministerial, but also determined that the conduct of both men was discretionary as a matter of law. We believe these two findings are conflicting, because by definition, a purely ministerial act is one which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own discretion upon the propriety of the act being done. We believe the circuit court was correct when it found that the actions of Stanbary and Franzen required both to exercise their discretion or judgment, and we believe the court was incorrect when it found that the actions of both men were ministerial. We agree with the defendants, who assert in their brief that under the State’s juvenile release program, the decisions respecting whom to parole, when to parole, and where to place the parolee and how to help the ex-offender adjust into a free society necessarily involve discretion and balancing the rights of the ex-offender against the rights of the community into which he is placed. Hence, we conclude that Franzen and Stanbary are immune from suit for the official acts complained of by the plaintiff Estate, even if, as alleged, the acts were negligently performed, because in the performance of those acts it was necessary to exercise judgment or discretion. Mora v. State; People ex rel. Scott v. Briceland.

We believe the same result attains, even if the well-pleaded allegation of the plaintiff is taken as true in the counts of the complaint asserting wilful and wanton conduct on the part of Franzen and Stanbary. Public-official immunity is conditioned upon good faith exercise of discretion and extends to acts undertaken in the exercise of that discretion not resulting from corrupt or malicious motives. (Thiele v. Kennedy (1974), 18 Ill. App. 3d 465, 309 N.E.2d 394.) The complaint here in question sets forth no allegation of corrupt motives, malicious motives, or the intentional misuse of power. For that reason, we believe the defendants Franzen and Stanbary are immune from suit for the acts and conduct set forth in plaintiff’s complaint.

We have reviewed the authorities cited by the plaintiff Estate, which establish a different rule regarding the immunity of public officials for their discretionary acts than the rule set forth above. (Payton v. United States (5th Cir. 1981), 636 F.2d 132; White v. United States (4th Cir. 1963), 317 F.2d 13; Rieser v. District of Columbia (D.C. Cir. 1977), 563 F.2d 462; Bellevance v. State (Fla. 1980), 390 So. 2d 422.) It does not appear, however, that the rule announced in those decisions correctly reflects the established law of this State. As we concur with the circuit court of Henry County in its dismissal of the complaint against the defendants Franzen and Stanbary, by reason of the application of the doctrine of public-official immunity, we deem it unnecessary to consider whether the doctrine of sovereign immunity also applies.

In reliance on the authorities and reasoning hereinbefore set forth, the decision of the circuit court of Henry County is affirmed.

Affirmed.

ALLOY and BARRY, JJ., concur.


author: JUSTICE BARRY

text:
    WINDSOR AT SEVEN OAKS, Plaintiff-Appellant, v. LYNN A. KELLY, Defendant-Appellee.
    Third District
    No. 82—611
    Opinion filed April 14, 1983.
    John G. Sahn, of Leiter, Leiter & Sahn, of Peoria, for appellant.
    James E. Swanson and Joseph M. Gibson, both of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court;

The plaintiff, Windsor at Seven Oaks, appeals from a summary judgment granted to the defendant, Lynn A. Kelly. The plaintiff brought suit against Kelly to recover for damage resulting from a fire in the apartment Kelly leased from the plaintiff. We affirm.

The facts of the case are not disputed. Kelly was a tenant in the plaintiff’s building. A fire which damaged the appliances in Kelly’s apartment was caused by Kelly’s negligence. The only issue before the lower court was whether Kelly was liable for the damage created by the fire.

A discussion of this issue requires consideration of the relevant portions of the lease between the plaintiff and the defendant. Paragraph 6 of the lease provided that “*** upon termination of this lease in any way, Lessee will immediately yield up the Apartment to the Lessor in as good condition as when the same was entered upon by Lessee, ordinary wear and tear excepted, and shall then return keys to Lessor.” Paragraph 9 of the lease provided that “The Lessee will, in the case of fire or other casualty, give immediate notice thereof to Lessor, who shall, at its option, terminate the lease or make the required repairs to the Apartment. ***” Finally, paragraph 11 of the lease provided in relevant part that the lessor “*** shall not be liable for any damage done or occasioned by or from plumbing, gas, water, steam, or other pipes, sewerage, or the bursting, leaking or running of any cistern, tank, washstand, water-closet or wastepipe, in, above, upon or about said building or Apartment, *** The Lessee further understands and agrees that it shall be the Lessee’s own obligation to insure his personal property located in the Apartment, ***.”

An exculpatory clause in a lease exempts a lessee from common law liability for loss by fire resulting from the lessee’s negligence. (Ford v. Jennings (1979), 70 Ill. App. 3d 219, 387 N.E.2d 1125.) The intention of the parties in establishing liability is to be determined by considering the lease as a whole. (Cerny-Pickas & Co. v. C. R. Jahn Co. (1955), 7 Ill. 2d 393, 131 N.E.2d 100.) The defendant is therefore exempted from liability for the loss to the plaintiff if her lease exculpates her.

The provisions of the defendant’s lease demonstrate that the parties did not intend that the defendant be held liable for the damage to the plaintiff’s property caused by the fire. Under paragraph 9 of the lease, the defendant has no contractual duty to repair the premises in the event of a fire. We note that paragraph 9 does not distinguish between fires where the origin is caused by the defendant’s own negligence and those of other origins. The lease provides that in the event of a fire, it is the plaintiff’s choice to either repair or terminate the lease. The plaintiff’s options under the lease remain the same, regardless of the cause of the fire. The obligation to repair, regardless of the cause of the fire, is the plaintiff’s. If the lease is terminated as a result of damage by fire, termination should act as a final resolution of all rights of the parties.

The provisions of paragraph 11 support our interpretation of the lease. In paragraph 11, the plaintiff expressly exempts himself from liability for damage due to various disorders or malfunctions either within or outside of the building. Damage by fire, however, is not included within the exemption.

The language of the lease provisions pertaining to insurance supports our conclusion as well. The relevant paragraphs in the lease are paragraphs 8 and 11. Paragraph 11 directs that the defendant insure her personal property. There is no requirement that the defendant insure the apartment itself. Paragraph 8, on the other hand, directs that the defendant not allow the apartment to be used for “any purpose that will increase the rate of insurance thereon ***.” This language clearly demonstrates that it is the plaintiff and not the defendant who is to be the insurer of the plaintiff’s property.

This allocation of the obligation to insure was discussed by the Illinois Supreme Court in Cerny-Pickas & Co. v. C. R. Jahn Co. (1955), 7 Ill. 2d 393, 131 N.E.2d 100. The court in Cerny-Pickas was presented with facts similar to those in the instant case. A commercial tenant, through its own negligence, started a fire which damaged the landlord’s building. The court in Cerny-Pickas noted that if the tenant were to be held liable for damage due to the fire, it would be necessary for both landlord and tenant to carry fire insurance. The court reasoned that under the construction of the lease urged by the landlord, it would be necessary for both parties to the lease to carry fire insurance. The tenant would have to insure against fires due to his negligence, and the landlord insure against fires due to other causes. It is well established in Illinois that it is desirable to avoid a construction of a lease which would require both parties to the lease to carry fire insurance if they are to be protected. (Stein v. Yarnall-Todd Chevrolet, Inc. (1968), 41 Ill. 2d 32, 241 N.E.2d 439; Barr v. Cutler (1978), 64 Ill. App. 3d 518, 381 N.E.2d 413.) It is similarly well recognized that the cost of insurance to a landlord or the value of the risk is made a part of the rental to be paid by the tenant. In practical effect, the tenant pays the costs of the landlord’s fire insurance. Cerny-Pickas & Co. v. C. R. John Co. (1955), 7 Ill. 2d 393, 131 N.E.2d 100.

Finally, the language of a lease will be construed against the party who drafted it. (Barr v. Cutler (1978), 64 Ill. App. 3d 518, 381 N.E.2d 413.) Where a landlord has drafted the lease, a court will not impose a responsibility upon the tenant unless the circumstances and the contract clearly indicate that the tenant intended to assume such a responsibility. 64 Ill. App. 3d 518, 520.

We find no indication in the lease before us that the defendant intended to assume liability for damage caused by fires resulting from her own negligence. Based upon the language of the lease between the parties in the instant case and the principles of law established in the cases cited above, we hold that, as a matter of law, the defendant was not liable for the damages claimed by the plaintiff.

The judgment of the circuit court of Peoria County is therefore affirmed.

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.


author: JUSTICE UNVERZAGT

text:
    OLYMPIC FEDERAL, Plaintiff-Appellee, v. WITNEY DEVELOPMENT CO., INC., et al., Defendants-Appellants.—(Edwin P. Witwicki et al., Defendants.)
    Second District
    No. 82—916
    Opinion filed April 8, 1983.

      John B. Murnighan, of Kovar, Nelson & Brittain, of Chicago, for appellants.
    Mark T. Hamilton, of Morrissey & Kay, of Oak Brook, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Olympic Federal, a federally chartered savings and loan association, successor to Olympic Savings and Loan Association, an Illinois savings and loan association, brought an action against the defendants, Witney Development Co., Inc., Western National Bank of Cicero, as Trustee, Edwin P. Witwicki, and “Unknown Owners,” to foreclose a mortgage. The trial court entered an interlocutory order placing the plaintiff in possession of the property as mortgagee, and defendants Witney Development Co., Inc., and Western National Bank of Cicero appealed.

The issues presented for review are: (1) whether, following the denial of the defendants’ motion to strike the plaintiff’s motion to be placed in possession as mortgagee, the trial court should have granted the defendants’ request for leave to respond to or answer the plaintiff’s motion to be placed in possession or should have held a hearing on the plaintiff’s motion based on the defendants’ verified answer, and (2) whether it was error for the plaintiff not to comply with section 2 — 403 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 2 — 403), in light of its conversion from a State to a Federal savings and loan association.

Olympic Savings and Loan Association was the mortgagee of certain land located in Grayslake, Illinois, that includes a golf course and country club. The mortgage was dated November 12, 1973. On March 19,1982, the plaintiff filed a complaint to foreclose that mortgage.

On August 4, 1982, the plaintiff moved the court to place the plaintiff, as mortgagee, in possession of the property and to grant the plaintiff authority to collect the rents, issues, and profits from the property and apply them to the mortgage loan balance. That motion was later amended, motions to strike it were denied, and the court ultimately granted the motion and placed the plaintiff in possession of the premises, staying its order pending a determination of the bond requirement of the plaintiff. From that order the defendants filed this interlocutory appeal.

At the outset, it is necessary to determine the scope of this appeal. The order from which the appeal is taken, entered November 3, 1982, ordered that the plaintiff be placed in possession of the mortgaged premises. Under Supreme Court Rule 307(a)(4) (87 Ill. 2d R. 307(a)(4)), such an order is immediately appealable as a matter of right. However, the defendants’ contentions of error on appeal are directed largely at earlier orders, including the denial of the defendants’ motion to strike the plaintiff’s amended motion to be placed in possession and the subsequent denial of the defendants’ motion to reconsider the request for time to respond to or answer the plaintiff’s amended motion.

Only final judgments or orders are appealable unless the particular judgment falls within one of the specified exceptions. Interlocutory appeals are piecemeal in nature, and Supreme Court Rule 307 provides for some very specific exceptions to piecemeal appeals. (City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 428.) An appeal under Rule 307 does not open the door to a general review of all orders entered by the trial court up to that date. (Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 1151.) However, certain other orders may be reviewable. For example, in the case of an interlocutory appeal from the granting of temporary injunctive relief, an appellant may ask the appellate court not only to determine whether the trial court properly exercised its discretion but also whether the complaint upon which the temporary injunction was based was proper to sustain an injunction. (Alfred Engineering, Inc. v. Illinois Fair Employment Practices Com. (1974), 19 Ill. App. 3d 592, 600.) The right to injunctive relief necessarily brings into question the sufficiency of the complaint, and the defendant who does not stand on his motion to dismiss the complaint may nevertheless contend on appeal from an interlocutory order that the complaint does not set forth grounds for any relief. (Biehn v. Tess (1950), 340 Ill. App. 140, 145.) Thus, whether an order preceding an interlocutory order from which an appeal is taken may be considered during the interlocutory appeal depends on its relationship to the order appealed from.

In the case at bar, only orders attendant to the motion to be placed in possession are cognizable on this appeal. Besides the order finally ruling on the motion to be placed in possession, this includes the defendants’ motions to strike and motion to reconsider.

The defendants’ position is that they were improperly denied the opportunity for a hearing, pursuant to statute, on the issue of whether the plaintiff should have been placed in possession pending resolution of the foreclosure action. The placing of a mortgagee in possession of the mortgaged premises is governed by article 15, part 3 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 15 — 301 et seq.), formerly section 1 et seq. of “An Act in relation to the rights of mortgagees ***” (111. Rev. Stat. 1981, ch. 95, par. 22b.51 et seq.). Section 15 — 302 provides that, in proceedings filed for the foreclosure of a mortgage, the court may place the mortgagee in possession of the mortgaged premises. Under section 15 — 303, the court may do so upon the mortgagee’s written application to be placed in possession, supported by affidavit, unless the mortgagee’s application is denied under oath. Section 15 — 305 directs the court promptly to conduct a hearing if the right of the mortgagee to take possession is denied. In that case, in order to place the mortgagee in possession, the court must determine that there is a reasonable probability that the mortgagee will prevail in the final hearing of the foreclosure proceedings.

In the instant case, the plaintiff filed its motion to be placed in possession on August 4, 1982. The defendants moved to strike that motion on the ground that it was substantially insufficient at law. On August 18, 1982, the court by order gave the plaintiff 14 days to amend the motion and granted the defendants seven days to respond to it. (The court’s order also gave the defendants seven days from the date of the order to answer the complaint, and the defendants filed their answers on August 24, 1982.) The plaintiff filed an amended motion to be placed in possession on September 3, 1982, and on September 15, 1982, the defendants supplemented their motion to strike. On the same day, the plaintiff’s response to that supplemented motion to strike was filed, and the court denied the motion to strike and denied the defendants’ request to respond to or answer the plaintiff’s amended motion. On September 20, 1982, the defendants filed a motion to reconsider the court’s ruling, requesting leave to answer or respond to the plaintiff’s amended motion to be placed in possession and indicating that they would deny the plaintiff’s right to be placed in possession. The court denied the defendants’ motion to reconsider and subsequently entered an order placing the plaintiff in possession.

A major thrust of the defendants’ argument is that the plaintiff did not provide the court with a basis for placing it in possession. They liken a mortgagee in possession to a receiver pendente lite, discuss the burden of establishing the need for a receiver, and posit that the plaintiff’s motion to be placed in possession did not meet that burden. The defendants apparently are challenging the court’s denial of their motion to strike through this line of analysis. Generally, the denial of a motion to strike or dismiss of itself is not an appealable order (Camp v. Chicago Transit Authority (1980), 82 Ill. App. 3d 1107, 1110), and the appellate court is without jurisdiction to consider such orders unless specific authority is conferred by statute or rule (Savage v. Schoenstadt (1979), 68 Ill. App. 3d 552, 554). However, as we noted, the sufficiency of the plaintiff’s motion to be placed in possession is reviewable within this Rule 307(a)(4) interlocutory appeal, since it is the very basis for the order appealed from.

The cases relied on by the defendants hold that the party seeking the appointment of a receiver has the burden of establishing circumstances that would justify the appointment of a receiver, such as danger to the property or loss from neglect, waste, misconduct, or insolvency, or the insufficiency of the premises to secure the payment of the mortgage debt. (Frank v. Siegel (1931), 263 Ill. App. 316; Stella v. Mosele (1939), 299 Ill. App. 53.) However, the defendants’ application of these standards to the placement of a mortgagee in possession is not correct, since section 15 — 305 unequivocably provides that test — “a reasonable probability that the plaintiff in the foreclosure proceedings will prevail on the final hearing of the cause ***.” This standard arises when a mortgagee’s application to be placed in possession is denied under oath and a hearing is called for, but a mortgagee’s motion to be placed in possession would not have to allege more than what need be proved when a hearing is held.

The plaintiff’s amended motion to be placed in possession set forth the details of the alleged default and also charged that the real estate and building were in a complete state of disrepair, substantially diminishing the value of the property and impairing the security, as described in the accompanying amended affidavit. The alleged default itself indicated that the plaintiff would win the foreclosure hearing, so the motion was sufficient.

In addition to the defendants’ challenge to the legal sufficiency of the motion, the defendants believe that they were entitled to respond to the merits of the plaintiff’s amended motion after the legal sufficiency of that motion was upheld — after the defendants’ motion to strike was denied. They contend that the court’s refusal to allow them to controvert the allegations of the plaintiff’s motion denied them due process. They further assert that the undenied matter in the verified answer to the complaint also should have precluded the trial court’s disposition of the issue without a hearing in that it negated the probability of the plaintiff’s ultimate success in the cause. The plaintiff argues that the defendants did, in fact, have a chance to respond, and that by filing the supplemental motion to strike rather than a specific response they elected to waive their rights to controvert the plaintiff’s amended motion. Many of the statements found in the plaintiff’s brief have no basis in the record on appeal and will not be considered.

No case could be found that dealt specifically with the trial court’s refusal to let a party respond to the allegations of a motion following the denial of that party’s motion to strike as insufficient at law, nor did the cases discussed by the parties address that issue. However, there is ample case law dealing with the effect of a motion to strike primary pleadings such as complaints and answers. The defendants’ motion to strike apparently was brought under section 2 — 615 of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 2 — 615), formerly section 45 of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 45). Generally, a section 2 — 615 motion attacks the legal rather than factual sufficiency of a complaint, and defenses that are factual in nature are not available on a motion to dismiss but should be set forth by answer. (Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 586.) In Swift & Co. v. Dollahan (1954), 2 Ill. App. 2d 574, 583, the court stated:

“A motion to dismiss, as was true of the demurrer under our former practice, raises only a question of law as to the legal sufficiency of the pleading to which it is directed. *** Since the facts stated in the pleading are admitted by the motion, the maker of the motion cannot at the same time contravert the admitted facts, either by assertions in his motion or by affidavit or other means. Matters of fact may be presented only by answer or by motion for summary judgment or in an appropriate case (of which the action here involved is not one), by motion under section 48 ***.”

Moreover, a defendant whose motion to strike a complaint and dismiss the suit is denied has a right then to file an answer. In re American Arbitration Association (1969), 109 Ill. App. 2d 370, 375.

We perceive no reason for not applying these principles to the instant case. Although the defendants’ motion to strike attacked a motion rather than a complaint, the situation is analogous to those involving complaints. The plaintiff’s amended motion to be placed in possession was a request for action by the court that would substantially affect the defendants’ right to the premises in question, and it recited factual allegations as a basis for the relief requested. The defendants’ motion to strike challenged the legal sufficiency of the motion but did not deny the substance of the factual allegations. The court’s order denying the motion to strike was simply a determination that the plaintiff’s motion was legally sufficient. The defendants should then have had an opportunity to respond to the merits of the motion.

Although the trial court previously had set up a time schedule within which the defendants were to “respond” to the plaintiff’s amended motion when filed, the expiration of that deadline is not enough to justify the court’s refusal to grant the defendants time to answer the motion following the denial of the motion to strike. The defendants did plead, in the form of a motion to strike. The trial court’s refusal to let them further respond presupposes that the defendants should have pleaded inconsistently, by filing a motion to strike that admitted the facts alleged in the plaintiff’s motion for purposes of the motion to strike and also filing an answer that denied those allegations.

It was reasonable for the defendants to wait for a ruling as to the legal sufficiency of the plaintiff’s motion before proceeding to respond to it by way of answer, since such a response would have been unnecessary had the motion to strike been granted (as was the motion to strike the plaintiff’s original motion to be placed in possession). Even if the time schedule set by the court contemplated that the defendants should also have filed a factual response to the plaintiff’s motion within the allotted time frame, however, it was error for the court not to grant a continuance when the defendants requested more time to respond. The record is unclear as to when the court orally ruled on the plaintiff’s motion to be placed in possession, but it appears that the court intended to dispose of the question of the plaintiff’s right to possession on the same day it denied the defendants’ motion to strike. Its order entered that day, September 15, 1982, denied the defendants’ motion to strike and their request to answer or respond to the plaintiff’s amended motion, and it continued the matter for the purpose of hearing testimony on the limited issue of the amount of bond to be fixed for the mortgagee in possession. Since the court was considering the bond issue, it appears that it had already concluded that the plaintiff should be placed in possession, even though the order expressly placing the plaintiff in possession was not entered until November 3, 1982. That determination, if it was in fact made then, should have been continued to allow the defendants time to respond. If the decision was not made until November 3, then there is even less reason for not allowing the defendants to respond.

Supreme Court Rule 183 (87 Ill. 2d R. 183) allows the court, for good cause shown, to extend the time for filing any pleading or doing any act that is required by the rules to be done within a limited period. The granting or denying of a Rule 183 motion is within the sound discretion of the trial court. (Office Electronics, Inc. v. Grafic Forms, Inc. (1979), 72 Ill. App. 3d 456, 459.) However, that discretion must be exercised judiciously, and the court should not refuse a continuance when the ends of justice clearly require it. (Krych v. Birnbaum (1978), 66 Ill. App. 3d 469, 471.) In Krych, the plaintiff did not respond to the defendants’ affirmative defenses on the belief that they were without merit and conclusory, and as a result the defendants were granted a motion for judgment on the pleadings. The court, acknowledging that the plaintiff’s silence was not the most appropriate course to pursue, nevertheless found that “the ends of justice were not served by a peremptory denial of plaintiff’s right to a day in court.” (66 Ill. App. 3d 469, 471.) Krych is distinguishable from the instant case in that there the plaintiff had no notice of the motion for judgment on the pleadings, and here the defendants were informed by statute that if they did not deny the right to possession a hearing would not be necessary. However, in light of the nature of the motion to dismiss, the defendants’ immediate request after the denial for time to respond, their subsequent motion to reconsider the denial of that request, and the importance to the parties’ rights of the effect of the ruling as to possession, which would have required a hearing had the defendants denied the plaintiff’s right to possession, this too is a case where the ends of justice were not met by a denial of the defendants’ request. The defendants should have been granted time to respond. We therefore reverse and remand.

Because of our disposition of the first issue, we will address the second issue as to whether the plaintiff should have complied with section 2 — 403 of the Code of Civil Procedure in light of its conversion from a State to a Federal savings and loan association. The plaintiff challenges the appealability of this issue. The issue first arose on July 7, 1982, in the defendants’ motion to require the plaintiff to amend the pleadings in light of any merger or transfer of interest. On that same date, the court ordered that the plaintiff be granted leave to file amended pleadings or in the alternative amend all pleadings on their face. On July 21, 1982, the plaintiff filed a response to the defendants’ motion to require the plaintiff to amend, stating that Olympic Savings and Loan Association had been issued a Federal charter on May 5, 1982, effectively converting it to a federally chartered savings and loan association known as “Olympic Federal” and asking the court to allow its original pleadings to stand by amending all pleadings on their face to show Olympic Federal as successor to all interests of Olympic Savings and Loan Association. No order was entered to that effect, but thereafter all pleadings reflected that change.

The plaintiff filed its motion to be placed in possession on August 4, 1982, and the defendants’ motion to strike, filed August 17, 1982, stated, inter alia, that the present plaintiff had failed to establish properly that it was the mortgagee as required by section 2 — 403 of the Code of Civil Procedure. That motion to strike was granted, and when the plaintiff filed its amended motion to be placed in possession on September 3, 1982, the defendants filed a supplement to the motion to strike, apparently renewing the objections contained in the initial motion to strike and adding others. The motion to strike as supplemented was denied on September 15, 1982. Since the objections were included by reference in the motion to strike the amended motion to be placed in possession upon which the order granting possession was based, and they go to the sufficiency of the motion, this issue is properly included in this interlocutory appeal.

The defendants argue that the plaintiff should have complied with section 2 — 403(a) of the Code of Civil Procedure (111. Rev. Stat. 1981, ch. 110, par. 2 — 403(a)), formerly section 22 of the Civil Practice Act (111. Rev. Stat. 1981, ch. 110, par. 22), which states: ■

“The assignee and owner of a non-negotiable chose in action may sue thereon in his or her own name. Such person shall in his or her pleading on oath allege that he or she is the actual bona fide owner thereof, and set forth how and when he or she acquired title. The action is subject to any defense or setoff existing before notice of the assignment.”

The plaintiff denies the applicability of section 2 — 403(a), arguing that no assignment occurred. The defendants construe that position as a judicial admission that the plaintiff is not the owner and holder of the note and mortgage securing it.

In the plaintiff’s recitation of facts in its brief, it states that in the spring of 1982, Olympic Savings and Loan Association of Berwyn, Illinois, entered into a merger with two other savings and loan associations, thereby merging into Lincoln Savings and Loan Association but taking the name of Olympic Savings and Loan Association. This merger was followed in May by the conversion to a federally chartered savings and loan association, as earlier discussed.

The plaintiff relies on sections 6 — 9 and 6 — 14 of the Illinois Savings and Loan Act (111. Rev. Stat. 1981, ch. 17, pars. 3169, 3174), which describe the effect of merger and conversion:

“Sec. 6 — 9. Effect of Merger, (a) The continuing association shall be considered the same business and corporate entity as each merging association, with all of the property, rights, powers, duties, and obligations of each merging association, except as otherwise provided by the articles of incorporation of the continuing association.
(b) All liabilities of each of the merging associations shall be liabilities of the continuing association; and all of the rights, franchises, and interests of each of the merging associations in and to every kind of property, real, personal or mixed, shall vest automatically in the continuing association, without any deed or other transfer.
(c) Any reference to a merging association in any writing, whether executed or effective before or after the merger, shall be deemed a reference to the continuing association, if not inconsistent with the other provisions of such writing.
(d) No pending action or other judicial proceeding to which any merging association is a party shall be abated or discontinued by reason of the merger, but may be prosecuted to final judgment, order or decree in the same manner as if the merger had not occurred.
* * *
Sec. 6 — 14. Effect of Conversion. When an association effects a conversion in accordance with either of the two preceding sections, the corporate existence of such association shall not be interrupted; but the identity of the association shall continue, together with all of the obligations and liabilities of the association; and all of its rights, franchises, and interests in and to every kind of property, real, personal or mixed, shall continue without the necessity of a deed or other transfer. Any reference to the association before conversion, contained in any writing, whether executed or effective before or after the conversion, shall be deemed a reference also to the association after conversion, if not inconsistent with the other provisions of such writing. No pending action or other judicial proceeding to which the association is a party shall be abated or discontinued by reason of such conversion, but the same may be prosecuted to final judgment, order, or decree in the same manner as if such conversion had not occurred.”

No cases could be found construing these sections, but their language is clear. A merged savings and loan association or one converted from State to Federal is an ongoing entity that retains all of its liabilities, rights, and interests in property without the need for a transfer. The plaintiff has therefore properly established itself as the current owner of the note and mortgage, and its motion to be placed in possession was not insufficient on this basis.

The order of the circuit court of Lake County placing the plaintiff in possession is reversed and the cause remanded to give the defendants an opportunity to respond to the plaintiff’s motion to be placed in possession.

Reversed and remanded.

LINDBERG and NASH, JJ., concur.