NOTICE
2016 IL App (5th) 150401
Decision filed 08/05/16. The
text of this decision may be NO. 5-15-0401
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
BRADLEY A. LAVITE, Superintendent ) Appeal from the
of the Veterans Assistance Commission ) Circuit Court of
of Madison County, Illinois, ) Madison County.
)
Plaintiff-Appellant, )
)
v. ) No. 15-MR-145
)
ALAN J. DUNSTAN, Chairman of the )
Madison County Board; JOSEPH D. )
PARENTE, County Administrator of Madison )
County, Illinois; THE MADISON COUNTY )
BOARD; and JOHN D. LAKIN, Sheriff of )
Madison County, Illinois, ) Honorable
) Stephen A. Stobbs,
Defendants-Appellees. ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Chapman and Stewart concurred in the judgment and opinion.
OPINION
¶1 This appeal is brought by Bradley A. Lavite, in his capacity as superintendent of
the Veterans Assistance Commission of Madison County, Illinois, from an order
dismissing his three-count complaint with prejudice. Lavite filed an action against the
named defendants for a writ of mandamus, claiming, in count I, that the defendants had
no authority to keep him from entering his office located in the Madison County
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Administration building. In count II, Lavite requested that the Madison County Board
issue checks for his salary as superintendent of the Veterans Assistance Commission of
Madison County, Illinois. Count III sought payment of the attorney fee invoices
submitted for Lavite's legal representation.
¶2 FACTS
¶3 This litigation arises under various provisions of the Military Veterans Assistance
Act (Act) (330 ILCS 45/0.01 et seq. (West 2014)). The purpose of this Act is to provide
monetary assistance to honorably discharged military veterans, their families, and the
families of deceased veterans. 330 ILCS 45/2 (West 2014). The Act requires, whenever
practicable, that all efforts be made to allow military veterans with families and the
families of deceased veterans to be provided for and assisted at their homes. 330 ILCS
45/6 (West 2014). In the event that the veteran does not have a home or family, the Act
allows for alternative assistance in order to aid the veteran in need.
¶4 In order to administer the assistance as mandated, the Act authorizes the
organization of a central assistance committee in counties where there are more than two
posts, camps, chapters, or detachments of military veterans. This committee is known as
the Veterans Assistance Commission (VAC) for the county involved. 330 ILCS 45/2
(West 2014). It is undisputed that Madison County has two or more posts, camps,
chapters, or detachments of military organizations chartered by the Congress of the
United States. Thus, in accordance with the Act, a VAC had been formed for Madison
County, formally referred to as the Veterans Assistance Committee of Madison County,
Illinois (Madison VAC). The Madison VAC is composed of one delegate and one
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alternate from each of the posts, camps, units, and chapters located in Madison County
(County).
¶5 The Act also designates an individual, referred to as the superintendent, to act on
behalf of the VAC. Pursuant to section 10 of the Act, "[t]he executive powers of the
commission shall be vested in a superintendent elected by the commission from among
those who served in the armed forces of the United States." 330 ILCS 45/10 (West
2014). The VAC's superintendent and employees are not considered employees of the
county, and they are exempt from the provisions of civil service acts and laws of the
state. 330 ILCS 45/10 (West 2014).
¶6 Under the circumstances herein, the Madison County Board (Board) is the unit of
government responsible for providing such sums of money as may be "just and
necessary" to carry out the mandate of the Act. 330 ILCS 45/2 (West 2014). The process
is fairly simple. The Madison VAC submits a proposed budget setting forth the amount
of money it deems "just and necessary," and the Board makes the final decision as to the
funds to be expended. Makowicz v. County of Macon, 78 Ill. 2d 308, 399 N.E.2d 1302
(1980). Where the county board fails to appropriate the "just and necessary" amounts
required for the veteran benefits, the Act allows the superintendent to seek a writ of
mandamus against the county board for the appropriation of the necessary funding. 330
ILCS 45/2 (West 2014). Once appropriated, the decision regarding how the monies are
spent to implement the support for eligible veterans is made based upon the
recommendations of an assistance committee within the VAC, and the superintendent
draws such funds. 330 ILCS 45/2 (West 2014).
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¶7 The Act further provides that in addition to those sums appropriated for the aid to
veterans, the VAC shall recommend to the county board the necessary amounts of
additional monies needed to properly compensate the VAC officers and employees
required to administer the assistance. 330 ILCS 45/10 (West 2014). Here, there is no
dispute that the Madison VAC submitted a proposed budget to the Board and that the
Board had approved monies to fund both the assistance for veterans and the employee
compensation. Specifically, by ordinance No. 2014-07, the Board approved and
allocated the sum of $505,035 to the Madison VAC for the fiscal year 2015. This
appropriation incorporated monies for services and supplies, as well as for funding for the
employee payroll, which included Lavite's salary as superintendent.
¶8 The Act also requires that the Board provide the Madison VAC with an office and
all necessary supplies. 330 ILCS 45/10 (West 2014). With regard, specifically, to the
VAC office, the Act sets forth this obligation as follows:
"The superintendent, designated Superintendent of Veterans Assistance of the
county, shall, under the direction of the commission, have charge of and maintain
an office in the county building or other central location, to be used solely by the
commission for carrying on its assistance work. The county shall provide the
office and furnish all necessary supplies, including telephone, printing, stationery
and postage therefor." 330 ILCS 45/10 (West 2014).
There is no dispute that as of March 12, 2015, the plaintiff, Bradley A. Lavite, had been
serving as the duly elected superintendent of the Madison VAC. It is also undisputed that
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as of that date, the Board had designated an office for the Madison VAC in the Madison
County Administration building.
¶9 On June 12, 2015, Lavite filed a verified, three-count complaint in mandamus. He
filed the cause of action in his capacity as the superintendent of the Madison VAC. He
did not include the Madison VAC as a named plaintiff or a nominal party to the
proceeding. Lavite named as defendants Alan J. Dunstan, chairman of the Madison
County Board; Joseph D. Parente, county administrator of Madison County; the Madison
County Board; and John D. Lakin, sheriff of Madison County.
¶ 10 In count I of his complaint, Lavite sought a writ ordering the defendants to allow
him access to the Madison VAC office located in the administration building. In
particular, Lavite alleged that on March 12, 2015, he experienced a medical emergency
requiring his hospitalization at the St. Louis Veteran's Administration Hospital in
Jefferson Barracks, Missouri. He was admitted under the medical care of Dr. Jane
Loitman, a psychiatrist with whom he had been treating for some period of time. Several
days later, on March 18, 2015, Dr. Loitman issued a letter indicating that Lavite could
return to work on March 23, 2015, without restrictions. A copy of Dr. Loitman's letter
was attached to the plaintiff's complaint as exhibit B.
¶ 11 On March 20, 2015, defendant Joseph D. Parente, in his official capacity as the
county administrator for Madison County, issued a letter directed to Bradley A. Lavite at
his home address. That letter indicated, "Per our telephone conversation this morning,
please be advised that until further notice, you are not permitted to enter the Madison
County Administration Building." A copy of the Parente letter was attached to Lavite's
5
complaint as exhibit A. No details were provided regarding the content of the telephone
conversation referred to in the letter, and no reasons were given for the decision to deny
Lavite access to the administration building. Nevertheless, denying Lavite entry to the
building meant that Lavite could not access the Madison VAC office located therein.
Therefore, as the Madison VAC superintendent, Lavite asked the court to order the
defendants to provide him access to his office, located in the administration building.
¶ 12 In count II, Lavite sought payment of his superintendent's salary, alleging that the
defendants had advised they would not process the payroll requests for his salary. In
count III, Lavite alleged that the Madison VAC had authorized the hiring of an attorney
to represent Lavite and that the Board had refused payment of the attorney fee invoices.
The Madison VAC resolution to hire an attorney for Lavite, dated April 10, 2015, was
attached to Lavite's complaint as exhibit E. Therefore, Lavite sought a writ requiring the
Board to pay the attorney fee bill from the Madison VAC funds.
¶ 13 Counsel for the defendants filed a motion to dismiss pursuant to sections 2-615
and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West
2014)). With regard to count I, the defendants generally claimed that the plaintiff's
complaint failed to state a cause of action for mandamus and that mandamus was not
available as a remedy for the plaintiff. The defendants alleged that Parente's decision to
deny Lavite the right of entry to the administration building was done pursuant to
Parente's duty to ensure the safety of the public. Therefore, the defendants claimed that
the action taken was a discretionary act, made in Parente's role as the Madison County
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administrator. Inasmuch as the action was discretionary, the defendants averred that
mandamus was inappropriate.
¶ 14 With regard to count II, the defendants argued that payment of Lavite's salary was
determined by the Madison VAC, not the Board. Attached to the defendants' motion to
dismiss was an affidavit, executed by Parente, which indicated, "The County has not and
will not fail or refuse to pay Plaintiff's salary so long as the Veteran's Assistance
Commission has sufficient funds to pay the Superintendent's salary and forwards a proper
payroll request to the County." In light of the fact that the defendants conceded that
Lavite would continue to receive his salary, the defendants claimed count II was moot,
and should be dismissed.
¶ 15 Finally, as to count III, the defendants first claimed that Lavite did not have
standing to raise the issue regarding payment of attorney fees, as that claim belonged
solely to the Madison VAC, which had not been named as a party to the action. The
defendants admitted, however, that the Madison VAC could pay its attorney fees "under
proper circumstances." Citing section 9 of the Act (330 ILCS 45/9 (West 2014)), the
defendants argued that chapter 34.02 of the Madison County Board Ordinances required
that the County Finance and Government Operations Committee be responsible for
approving "purchases greater than $5,000.00 and up to $30,000.00." Further, the
defendants claimed that the Madison VAC was subject to the County's competitive
purchasing ordinance. Therefore, because the Madison VAC had not complied with the
requisite County ordinances, neither Lavite nor the Madison VAC was entitled to the
relief requested.
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¶ 16 On August 25, 2015, Lavite filed a memorandum in opposition to the defendants'
motion to dismiss. The first paragraph of that memorandum pointed out that the
defendants' motion failed to comply with section 2-619.1 of the Code (735 ILCS 5/2-
619.1 (West 2014)). The remainder of Lavite's memorandum defended each count of his
complaint in mandamus.
¶ 17 On August 26, 2015, the court held a hearing on the defendants' motion to dismiss.
At the conclusion of the hearing, the court took the matter under advisement. On
September 1, 2015, the trial court issued an order that dismissed all three counts of
Lavite's complaint with prejudice. This timely appeal followed.
¶ 18 ANALYSIS
¶ 19 On appeal, Lavite asserts that the court erred in dismissing his complaint with
prejudice. Before we address the merits of this appeal, we would be remiss if we did not
point out the manifest disregard by the defendants for the statutory requirements set forth
in section 2-619.1 of the Code. As noted previously, the defendants simply asked the
court to dismiss the plaintiff's complaint pursuant to sections 2-615 and 2-619 of the
Code (735 ILCS 5/2-615, 2-619 (West 2014)). The defendants' motion to dismiss was
inadequate because it failed to comply with the procedural requirements for combined
motions. Reynolds v. Jimmy John's Enterprises, LLC, 2013 IL App (4th) 120139, & 20,
988 N.E.2d 984. This is not an isolated occurrence. The failure to follow the procedural
requirements of section 2-619.1 seems to be increasingly prevalent among members of
the trial bar, as this court continues to see these improperly filed motions to dismiss. This
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case is yet another example, and it is because of this lack of compliance with section 2-
619.1 that we address this issue.
¶ 20 Section 2-619.1 of the Code is the procedural mechanism that allows for combined
motions pursuant to section 2-615, section 2-619, and section 2-1005. 735 ILCS 5/2-
619.1 (West 2014); see Reynolds, 2013 IL App (4th) 120139, ¶ 20, 988 N.E.2d 984. A
combined motion under section 2-619.1, however, must be separated into parts, and each
part must be limited to and specify the specific section upon which the litigant is seeking
relief. Further, each part must "clearly show the points or grounds relied upon under the
[s]ection upon which it is based." 735 ILCS 5/2-619.1 (West 2014). Section 2-619.1
does not authorize the commingling of distinctive claims pursuant to section 2-615, 2-
619, or 2-1005. These sections are procedurally distinct from one another, and parties are
not at liberty to ignore these distinctions when filing a combined motion pursuant to
section 2-619.1. Reynolds, 2013 IL App (4th) 120139, ¶ 20, 988 N.E.2d 984. The failure
to divide the motion into specific parts and to outline the specific grounds supporting
each part is an undisciplined motion practice that violates the explicit requirements of
section 2-619.1 and makes the task of considering the merits of the motion more arduous
for both trial courts and courts of review.
¶ 21 Counsel who fail to comply with the procedural rules regarding combined
motions do so at their own peril. Trial courts should not consider a combined motion
under section 2-619.1 if it does not adhere to these statutory requirements. Reynolds,
2013 IL App (4th) 120139, ¶ 21, 988 N.E.2d 984. This is because such motions create
unnecessary complications and confusion. Thus, when faced with a motion that does not
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comport with section 2-619.1, trial courts should sua sponte deny the motion and provide
the moving party with an opportunity to file a motion that meets the statutory
requirements. Reynolds, 2013 IL App (4th) 120139, ¶ 21, 988 N.E.2d 984.
Alternatively, trial courts could allow the moving party to file separate motions under
section 2-615 and section 2-619 to avoid running afoul of the procedural requirements of
section 2-619.1. Reynolds, 2013 IL App (4th) 120139, ¶ 21, 988 N.E.2d 984.
¶ 22 In this case, the plaintiff recognized that the defendants had filed a combined
motion to dismiss that was not in compliance with section 2-619.1 but did not ask that the
pleading be stricken. Instead, the parties proceeded to argue the merits of the motion,
with the defendants offering their more detailed explanations during their oral argument
before the trial court. During the hearing on August 26, 2015, the defendants claimed
that count I of the plaintiff's complaint should be dismissed pursuant to section 2-615 and
counts II and III of the complaint should be dismissed pursuant to section 2-619.
Thereafter, on September 1, 2015, the trial court dismissed the plaintiff's complaint
without addressing any particular section of the Code.
¶ 23 As a result of this ruling, our task has been greatly complicated by the circuit
court's failure to articulate the specific sections relied upon in its dismissal of the
plaintiff's complaint. Notions of fundamental fairness are better served by following the
law and our applicable rules. There is no doubt that the lack of clarity in the trial court's
ruling resulted because of the defendants' failure to follow the procedural requirements of
section 2-619.1. Nevertheless, we begin with the trial court's order of September 1, 2015,
and address each of its rulings in turn.
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¶ 24 With regard to count I of the plaintiff's complaint, the trial court found that Lavite
had failed to name a necessary party, namely the Madison VAC. Count I requested that
the court issue a writ requiring the defendants to allow Lavite access to the Madison
VAC office located in the administration building. With regard to necessary parties,
"Illinois law does not have any one express provision regulating who must be joined as a
party. Instead, several provisions of the Code of Civil Procedure affect the common-law
rule relating to the joinder of parties." Safeco Insurance Co. of Illinois v. Treinis, 238 Ill.
App. 3d 541, 544, 606 N.E.2d 379, 380 (1992). Our courts have analyzed whether a
party is "necessary" by looking at the various reasons alleged for joinder. Consequently,
the courts have arrived at three reasons to conclude a party is "necessary," such that the
lawsuit should not proceed in the party's absence: "(1) to protect an interest that the
absentee has in the subject matter of the controversy which would be materially affected
by a judgment entered in his absence; (2) to protect the interests of those who are before
the court; or (3) to enable the court to make a complete determination of the
controversy." Holzer v. Motorola Lighting, Inc., 295 Ill. App. 3d 963, 970, 693 N.E.2d
446, 452 (1998).
¶ 25 As noted previously, section 10 of the Act vests the executive powers of the
commission in the superintendent elected by the commission. That superintendent "shall,
under the direction of the commission, have charge of and maintain an office in the
county building or other central location, to be used solely by the commission for
carrying on its assistance work." 330 ILCS 45/10 (West 2014). Therefore, as the
superintendent for the Madison VAC, Lavite was vested with executive authority by
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statute and was obligated to protect the interests of the Madison VAC. As such, there
was no need, under any of the reasons identified herein, to deem the Madison VAC a
necessary party. Moreover, Lavite was the authorized spokesperson for the Madison
VAC, and there was no other individual authorized to speak on its behalf. Therefore, we
hold that the Madison VAC was not a necessary party under count I of Lavite's
complaint, and the court erred in dismissing count I for that reason.
¶ 26 Even if the Madison VAC were considered a necessary party to enable the court to
make a complete determination of the controversy, the Code has several options
available, short of dismissal. More particularly, section 2-406(a) of the Code provides
that "[i]f a complete determination of a controversy cannot be had without the presence
of other parties, the court may direct them to be brought in." 735 ILCS 5/2-406(a) (West
2014). Section 2-407 specifically indicates that "[n]o action shall be dismissed for
misjoinder of parties, or dismissed for nonjoinder of necessary parties without first
affording reasonable opportunity to add them as parties." 735 ILCS 5/2-407 (West
2014). Additionally, had the defendants truly believed that the Madison VAC was a
necessary party, they could have added the Madison VAC under section 2-405 of the
Code (735 ILCS 5/2-405 (West 2014)). Thus, even if the Madison VAC were a
necessary party, the court should have granted Lavite the opportunity to amend his
complaint. Accordingly, we find that the court erred in its dismissal of count I, with
prejudice, when it failed to allow Lavite to amend his pleading.
¶ 27 The second basis given by the trial court for dismissal of count I was in two parts.
First, the court held that Lavite had no standing to seek a writ of mandamus. Second, the
12
court determined that the actions taken by the defendants were discretionary judgments,
relying upon Hazen v. County of Peoria, 138 Ill. App. 3d 836, 485 N.E.2d 1325 (1985).
¶ 28 We first examine the issue of standing. Under section 2-619(a)(2), a defendant
may move for an involuntary dismissal where the plaintiff does not have legal capacity to
sue, or the defendant does not have the legal capacity to be sued. 735 ILCS 5/2-619(a)(2)
(West 2014). The doctrine of standing ensures that issues are raised only by those parties
who have a sufficient stake in the outcome of the controversy. Glisson v. City of Marion,
188 Ill. 2d 211, 221, 720 N.E.2d 1034, 1039 (1999). In ruling on the motion, the trial
court must interpret all pleadings and supporting documents in the light most favorable to
the nonmoving party. Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 383, 808 N.E.2d
957, 962 (2004). A section 2-619 motion to dismiss presents a question of law, and our
review is de novo. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 411, 775
N.E.2d 951, 957 (2002).
¶ 29 In this case, the trial court's dismissal based on standing highlights the conundrum
caused by the defendants' failure to comply with the statutory requirements for filing
combined motions to dismiss. During the August 26 hearing, counsel for the defendants
argued that section 2-615 applied to count I. Standing, however, is an issue raised
pursuant to section 2-619. Regardless of the defendants' failure to recognize this
important distinction, we reiterate that the Act provides that "[t]he executive powers of
the commission shall be vested in a superintendent," and it is the superintendent who is
authorized to bring an action for mandamus where a county board fails to appropriate the
just and necessary sums needed to provide veteran assistance under the Act. 330 ILCS
13
45/10, 2 (West 2014). We recognize that the action before us does not involve the
appropriation of funds, but there seems to be no distinction in the Act as to the ability of
the superintendent to enforce the multitude of rights available to the Madison VAC under
the Act.
¶ 30 In Ickes v. Board of Supervisors, the superintendent of the county veterans
commission and two tax payers filed an action for mandamus against the county board,
claiming the county had not appropriated the just and necessary sums to fund the benefits
needed to assist veterans pursuant to the Act. Ickes v. Board of Supervisors, 415 Ill. 557,
114 N.E.2d 669 (1953). In Makowicz v. County of Macon, the superintendent of the
county veterans commission brought a complaint for declaratory judgment on behalf of
the county VAC claiming that the authority to appoint and discharge employees of the
commission was not held by the county board. Makowicz v. County of Macon, 78 Ill. 2d
308, 399 N.E.2d 1302 (1980). In each of these cases, the commission was not a named
plaintiff, and our supreme court proceeded to determine the merits of the appeal.
Therefore, we hold that Lavite had standing to bring his complaint pursuant to the Act,
and count I should not have been involuntarily dismissed under section 2-619(a)(2).
¶ 31 Next, the trial court determined that count I sought a writ of mandamus "against
the defendants, public officials, who made discretionary judgments regarding the security
of County facilities, employees and members of the public using same." Once again, it
is difficult for us to discern whether the court dismissed Lavite's complaint because the
plaintiff failed to state a cause of action upon which relief could be granted–thus
involving section 2-615 of the Code–or whether the dismissal was based on an
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affirmative matter under section 2-619(a)(9)–namely, the fact that Parente was
performing a discretionary act, thereby precluding an action for mandamus.
¶ 32 We begin our analysis with mandamus, generally. Mandamus is an extraordinary
remedy to enforce, as a matter of public right, "the performance of official duties by a
public officer where no exercise of discretion on his part is involved." Madden v.
Cronson, 114 Ill. 2d 504, 514, 501 N.E.2d 1267, 1272 (1986). "The writ provides
affirmative rather than prohibitory relief [citation] and can be used to compel the undoing
of an act [citation]." Noyola v. Board of Education, 179 Ill. 2d 121, 133, 688 N.E.2d 81,
86 (1997). Mandamus will lie where, as alleged here, public officials have failed or
refused to comply with requirements imposed by statute, provided that the requirements
for that writ have been satisfied. Noyola, 179 Ill. 2d at 132, 688 N.E.2d at 86.
¶ 33 Article 14 of the Code governs the procedures related to the filing of an action in
mandamus. 735 ILCS 5/14-101 et seq. (West 2014). Pursuant to section 14-101, an
action for mandamus shall be brought in the name of the person seeking the relief. 735
ILCS 5/14-101 (West 2014). More importantly, the Code provides that "[t]he
proceedings for mandamus shall not be dismissed nor the relief denied because the
plaintiff may have another judicial remedy, even where such other remedy will afford
proper and sufficient relief; and amendments may be allowed as in other civil cases."
735 ILCS 5/14-108 (West 2014). Even where the plaintiff seeks the wrong remedy but
demonstrates an entitlement to relief, section 14-109 requires the court to allow the
plaintiff the opportunity to amend his pleadings. 735 ILCS 5/14-109 (West 2014). With
regard to civil cases, generally, section 2-616(a) of the Code allows for amendments to
15
the pleadings. 735 ILCS 5/2-616(a) (West 2014). Specifically, "[a]t any time before
final judgment amendments may be allowed on just and reasonable terms, introducing
any party who ought to have been joined as plaintiff or defendant, dismissing any party,
changing the cause of action or defense or adding new causes of action or defenses." 735
ILCS 5/2-616(a) (West 2014). The purpose of allowing an amendment is to "enable the
plaintiff to sustain the claim for which it was intended to be brought or the defendant to
make a defense or assert a cross claim." 735 ILCS 5/2-616(a) (West 2014). Therefore,
even if the trial court had determined that count I was insufficient in seeking a remedy at
law, the court erred in its dismissal of count I, with prejudice, when it failed to allow
Lavite to amend his pleading.
¶ 34 Despite the extraordinary remedy allowed by such a writ, mandamus proceedings
are governed by the same pleading rules that apply to actions at law. Noyola, 179 Ill. 2d
at 133, 688 N.E.2d at 86. For a complaint seeking mandamus to withstand a challenge to
its legal sufficiency, it must allege facts that establish a clear right to the relief requested,
a clear duty of the respondent to act, and clear authority in the respondent to comply with
the writ. Noyola, 179 Ill. 2d at 133, 688 N.E.2d at 86. The defendants' motion to dismiss
merely concluded, as to count I, that "Plaintiff's Complaint does not state a cause of
action for mandamus." At oral argument, the defendants insisted that count I be
dismissed pursuant to section 2-615. Indeed, section 2-615 allows for the dismissal of a
complaint where it is "substantially insufficient in law." 735 ILCS 5/2-615 (West 2014).
"In ruling on such a motion, a court must accept as true all well-pleaded facts in the
complaint, as well as any reasonable inferences that may arise from them." Kanerva v.
16
Weems, 2014 IL 115811, ¶ 33, 13 N.E.3d 1228. "The critical inquiry is whether the
allegations of the complaint, when construed in the light most favorable to the plaintiff,
are sufficient to establish a cause of action upon which relief may be granted." Weems,
2014 IL 115811, ¶ 33, 13 N.E.3d 1228. "A cause of action should not be dismissed under
section 2-615 unless it is clearly apparent from the pleadings that no set of facts can be
proven that would entitle the plaintiff to recover." Weems, 2014 IL 115811, ¶ 33, 13
N.E.3d 1228. "Our review of an order granting a section 2-615 motion to dismiss is de
novo ***." Weems, 2014 IL 115811, ¶ 33, 13 N.E.3d 1228.
¶ 35 Therefore, we first consider whether the facts set forth in Lavite's complaint are
sufficient to establish a cause of action at law. The plaintiff alleged that he suffered a
medical emergency that required his hospitalization. He also alleged that Parente is the
county administrator of Madison County, Illinois. In his complaint, Lavite set forth the
obligation of the County to provide the Madison VAC with an office under section 10 of
the Act (330 ILCS 45/10 (West 2014)). Pursuant to section 10, the superintendent is in
charge of that office, which is to be used solely by the commission for carrying on its
work assisting veterans. Plaintiff further alleged that on March 20, 2015, Parente "issued
a directive to Bradley A. Lavite that he was not permitted to enter the Madison County
Administration Building." A copy of Parente's letter was attached as exhibit A. Lavite
requested that the court compel the defendants to allow him access to the Madison VAC
office, located in the administration building. Without being allowed to access the
Madison VAC office, Lavite claimed he was unable to carry on his duties as the VAC
superintendent.
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¶ 36 The defendants did not answer the complaint, opting instead to file a motion to
dismiss. Nevertheless, during oral argument, there was a great deal of discussion
regarding the reasoning used by Parente in denying Lavite access to the administration
building. The defendants excused Parente's conduct based upon his obligation to protect
the public. The plaintiff's complaint, however, said nothing about potential harm to the
public. In fact, the pleading is devoid of any mention that Parente's actions were taken
for the "security of County facilities," as indicated by the court's order. The allegations in
the pleadings are the only matters that the court is to consider in ruling on a section 2-615
motion. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 485, 639 N.E.2d 1282, 1289
(1994). The trial court obviously considered facts outside of the plaintiff's pleading,
which was improper under a section 2-615 motion to dismiss. Therefore, having
reviewed the allegations of Lavite's complaint in the light most favorable to plaintiff, we
believe the court erred in dismissing count I under section 2-615, where it considered
factual matters outside of the pleadings.
¶ 37 We next consider whether the trial court properly dismissed count I of Lavite's
complaint pursuant to section 2-619 (735 ILCS 5/2-619 (West 2014)). As noted
previously, a motion to dismiss under section 2-615 differs significantly from a motion
for involuntary dismissal under section 2-619. Becker v. Zellner, 292 Ill. App. 3d 116,
122, 684 N.E.2d 1378, 1383 (1997). "A significant difference between the two motions
is that a section 2-615 motion is based on the pleadings rather than on the underlying
facts." Cwikla v. Sheir, 345 Ill. App. 3d 23, 29, 801 N.E.2d 1103, 1109 (2003). A
section 2-619 motion, however, admits the legal sufficiency of the complaint but asserts
18
an affirmative defense or other matter that avoids or defeats the claim. Becker, 292 Ill.
App. 3d at 122, 684 N.E.2d at 1383. In other words, the motion assumes that a cause of
action has been stated but then "raises defects, defenses or other affirmative matter which
appears on the face of the complaint or is established by external submissions which act
to defeat the plaintiff's claim." Neppl v. Murphy, 316 Ill. App. 3d 581, 584, 736 N.E.2d
1174, 1178 (2000). A section 2-619 proceeding enables the court to dismiss the
complaint after considering issues of law or easily proved issues of fact. Neppl, 316 Ill.
App. 3d at 585, 736 N.E.2d at 1179. In a hearing on a section 2-619 motion, the court
may go outside of the pleadings, as the parties are allowed to introduce proof denying the
facts alleged in the plaintiff's complaint, including affidavits and other forms of
competent evidence. 735 ILCS 5/2-619 (West 2014).
¶ 38 In ruling that the actions of the defendants were discretionary, the court cited to
Hazen v. County of Peoria, 138 Ill. App. 3d 836, 485 N.E.2d 1325 (1985). In Hazen, the
Veterans Assistance Commission of Peoria County (Peoria VAC) and its supervisor filed
a petition for mandamus and injunctions to compel the Peoria County Board to impose a
tax rate that would raise the funds requested by the Peoria VAC to carry out the purposes
of the Act. The Peoria County Board's authorization of a lower tax rate meant the Peoria
VAC was still eligible to qualify for State funds that would supplement the local funds
for public aid purposes. The county board directed the Peoria VAC to comply with the
rules and regulations of the Department of Public Aid so that the remainder of the funds
needed by the Peoria VAC could be obtained from the State. Hazen, 138 Ill. App. 3d at
838-39, 485 N.E.2d at 1327-28. The defendants counterclaimed for a declaratory
19
judgment and for an injunction or a writ of mandamus to require the plaintiffs to comply
with the Public Aid Code (Ill. Rev. Stat. 1983, ch. 23, ¶ 12-21.13). In Hazen, the facts
were not in dispute. The issue was whether the Peoria County Board's conduct
constituted a discretionary act, thereby precluding an action for mandamus, as it is a well-
settled rule of law that mandamus will not lie to compel the performance of an official
duty in a particular manner where the exercise of judgment or discretion is involved.
Hazen, 138 Ill. App. 3d at 839, 485 N.E.2d at 1328. After a hearing involving the merits
of the case, the court granted the defendants' petition for mandamus and for an injunction.
There was no discussion regarding "necessary parties" or "standing." Rather, Hazen is a
case where the court decided the issues raised by the pleadings and the evidence and
entered judgment.
¶ 39 The procedural posture in Hazen is far different than the status of the pleadings
before the trial court in this case. In the case sub judice, the defendants did not file
responsive pleadings. Instead, the defendants filed a motion to dismiss the plaintiff's
complaint for failure to state a claim upon which relief could be granted. The defendants
attached to their motion an affidavit from Parente, which said nothing about the need to
act to protect the public safety. Instead, during argument on their motion, the defendants
offered only their argument that the action taken by Parente was a discretionary act. Not
a scintilla of credible evidence was proffered before the trial court in the form required by
the Code. Indeed, Parente may have had a reason to keep Lavite from entering the
administration building, but this was clearly a question of fact not properly raised by the
defendants' motion. There is nothing in the record to indicate that Parente's unilateral
20
denial of Lavite's access to the administration building or the Madison VAC office was
performed for any reason other than that alleged by plaintiff in his complaint. At this
stage of the proceedings, the trial court erred in its determination that the defendants
made discretionary judgments regarding the security of county facilities.
¶ 40 Having fully considered the potential bases for the dismissal of count I pursuant to
sections 6-215 and 2-619, we vacate the trial court's order in its entirety and remand to
the trial court with instructions to deny the defendants' motion to dismiss.
¶ 41 We next address the court's order dismissing count II. In count II, Lavite alleged
that the defendants advised that they would not process payroll requests for the
superintendent's salary. Lavite sought an order of mandamus, directing the defendants to
process the Madison VAC's payroll requests covering his salary as the superintendent.
Section 10 of the Act directs the county board to appropriate such sums, upon
recommendation of the VAC and as approved by the county board, to properly
compensate the officers and employees who are required to administer the assistance
provided for in the Act. 330 ILCS 45/10 (West 2014). In the motion to dismiss count II,
the defendants conceded that payment of Lavite's salary was the function of the Madison
VAC, not the County. They attached an affidavit, executed by Parente, which stated in
pertinent part:
"In Count II of Plaintiff's Complaint Plaintiff states that Defendants have advised
that they will not process payroll requests for the Superintendent's salary. This
allegation is false. The County has not and will not fail or refuse to process a
payroll request from the Veterans Assistance Commission to the County to pay
21
Plaintiff's salary so long as the Veterans Assistance Commission has sufficient
funds to pay the Superintendent's salary and forwards a proper payroll request to
the County. The County pays Plaintiff's salary out of the Veterans Assistance
Commission funds appropriated by the Madison County Board."
¶ 42 According to the affidavit, the defendants have affirmatively stated that they have
not, and will not, refuse to process a payroll request. Thus, there appears to be no actual
controversy between the parties at this time as to count II. After reviewing the record, we
find that count II was brought prematurely, as it does not present a concrete dispute
requiring a judicial decision. We affirm the trial court's decision to dismiss count II.
Nothing, however, would preclude Lavite from pursuing a remedy should an actual
controversy arise with regard to his compensation.
¶ 43 Finally, we direct our attention to count III, wherein the plaintiff sought payment
of attorney fees from the Madison VAC funds. The trial court identified several reasons
for its dismissal of this count with prejudice. First, as with count I, the trial court held
that the Madison VAC was a necessary party. In addition to the reasoning previously set
forth herein, it is noteworthy that attached to the plaintiff's complaint, as exhibit E, was a
"Resolution To Hire Attorney," dated April 10, 2015. This resolution authorized the
hiring of an attorney to represent Lavite and indicated as follows:
"NOW THEREFORE BE IT RESOLVED, that the President is authorized to
execute the attached retainer agreement with attorney Thomas W. Burkart Law
Office to represent the interests of the Commission and its Superintendent in all
22
matters addressed in letters from Joseph Parente dated March 6 and April 6, 2015
and the complaint that accompanied the latter."
Defendants' argument that Lavite lacked standing was nonsensical, as they claimed the
plaintiff "did not have a real interest in the funding of the VAC." That was not the issue.
As the executive officer, Lavite had the authority to represent the Madison VAC in its
efforts to have the attorney fees paid from Madison VAC funds. Therefore, we hold that
the Madison VAC was not a necessary party to the proceeding, as Lavite could
adequately protect the interests of the Madison VAC. Moreover, as before, even if the
Madison VAC was deemed a necessary party by the court or the defendants, the cause of
action should not have been dismissed, as the complaint could have been amended to add
the Madison VAC as a party-plaintiff or nominal defendant.
¶ 44 The court also dismissed count III, holding that the plaintiff had no standing to
seek mandamus under the Act for payment of attorney fees "where the VAC must first
submit the reimbursement request to the County for its review and approval." In reaching
its decision, the circuit court relied upon Veterans Assistance Comm'n v. County Board,
2015 IL App (3d) 130969. In light of our prior discussion regarding the issue of standing
and the aforementioned resolution attached to Lavite's complaint, we find that Lavite has
standing to bring this claim on behalf of the Madison VAC for payment of attorney fees.
¶ 45 Finally, we consider whether the Madison VAC was entitled to have its attorney
fees paid from the VAC funds that had already been appropriated, or whether the VAC
was subject to the County ordinances applicable to the expenditure of monies in excess of
$5000 and/or the competitive purchasing ordinance. The defendants, once again, alleged
23
an affirmative matter in their attempt to dismiss count III. Therefore, we review the
court's dismissal pursuant to section 2-619(a)(9). 735 ILCS 5/2-619(a)(9) (West 2014).
¶ 46 In support of this argument, the defendants rely upon Veterans Assistance Comm'n
v. County Board, 274 Ill. App. 3d 32, 654 N.E.2d 219 (1995). In that case, the VAC
suggested benefit amounts for veterans at an amount different than those recommended
by the county board. 274 Ill. App. 3d at 34, 654 N.E.2d at 220-21. Additionally, the
VAC approved an annual superintendent salary of $46,000, but the board appropriated
only $23,700. 274 Ill. App. 3d at 34, 654 N.E.2d at 221. The county executive also
signed an order appointing the county auditor to oversee the distribution of money and
supplies to veterans, and then the board adopted a resolution that purported to amend
parts of the VAC's handbook that included the standards for determining need, veterans'
benefit levels, and VAC rules. 274 Ill. App. 3d at 34, 654 N.E.2d at 221. The trial court
ruled in favor of the county. 274 Ill. App. 3d at 34, 654 N.E.2d at 221. The appellate
court reversed and remanded. In doing so, the court held that section 9 of the Act "does
not empower the board to create rules that unilaterally alter veterans' benefit levels, VAC
salary levels or VAC rules." 274 Ill. App. 3d at 36, 654 N.E.2d at 222. The court further
explained, "Here, the board seeks to reduce benefits to veterans in need. If we were to
adopt defendants' assertion that section 9 gives the board supremacy over the VAC, we
would be granting the board the power to thwart the very purpose of the Act. This we
cannot do." 274 Ill. App. 3d at 37, 654 N.E.2d at 222-23.
¶ 47 Similarly, in this case, the Board seeks to impose oversight on the Madison VAC
by imposing its ordinances, which directly affect the operation of the commission. As in
24
Veterans Assistance Comm'n v. County Board, this it cannot do. Therefore, we vacate
subparagraph b of the trial court's order relating to count III of Lavite's complaint, as the
County had already appropriated the funds for the Madison VAC and had no further right
to impose its ordinances on the Madison VAC in the selection of an attorney for Lavite.
¶ 48 Moreover, the defendants conceded that "Illinois law is clear that attorney's fees
for legal representation of a County Veterans Assistance Commission must be paid from
the Veterans Assistance Commission funds, not from the general fund of the County."
Here, the plaintiff's complaint alleges that the Board had approved a budget for the
Madison VAC, which included monies for the assistance to eligible veterans as well as
salaries and expenses needed to implement the purposes of the Act. Therefore,
defendants' reliance on Hazen v. County of Peoria, 138 Ill. App. 3d 836, 485 N.E.2d
1325 (1985), is misplaced.
¶ 49 In Hazen, the VAC requested that its attorney be paid from county funds. There,
the court indicated that "the attorney for the VAC is not entitled to compensation from
general county funds but rather must be paid from VAC funds. This holding is consistent
with the decision of the Supreme Court of Illinois in Makowicz v. County of Macon
(1980), 78 Ill. 2d 308, 399 N.E.2d 1302, that the superintendent and other VAC
employees are employees of the VAC and not of the county board." Hazen, 138 Ill. App.
3d at 842, 485 N.E.2d at 1329-30.
¶ 50 Unlike the controversy in Hazen, the defendants concede their obligation to pay,
so long as the VAC has the necessary funding, and have only objected based on the
applicability of the ordinances. Therefore, we find there is no genuine issue of fact as to
25
the payment of attorney fees. Thus, the court erred in dismissing count III. Accordingly,
we vacate that order and remand to the circuit court with instructions to deny the
defendants' motion to dismiss count III.
¶ 51 CONCLUSION
¶ 52 In conclusion, as to count I, we vacate the trial court's order in its entirety and
remand to the trial court with instructions to deny the defendants' motion to dismiss. As
to count II, the circuit court's order of dismissal is affirmed, as the claim was premature.
As to count III, we vacate the trial court's order and remand to the trial court with
instructions to enter an order denying the defendants' motion to dismiss.
¶ 53 Affirmed in part; vacated in part; and remanded with instructions.
26
2016 IL App (5th) 150401
NO. 5-15-0401
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
BRADLEY A. LAVITE, Superintendent ) Appeal from the
of the Veterans Assistance Commission ) Circuit Court of
of Madison County, Illinois, ) Madison County.
)
Plaintiff-Appellant, )
)
v. ) No. 15-MR-145
)
ALAN J. DUNSTAN, Chairman of the )
Madison County Board; JOSEPH D. )
PARENTE, County Administrator of Madison )
County, Illinois; THE MADISON COUNTY )
BOARD; and JOHN D. LAKIN, Sheriff of )
Madison County, Illinois, ) Honorable
) Stephen A. Stobbs,
Defendants-Appellees. ) Judge, presiding.
______________________________________________________________________________
Opinion Filed: August 5, 2016
______________________________________________________________________________
Justices: Honorable Judy L. Cates, J.
Honorable Melissa A. Chapman, J., and
Honorable Bruce D. Stewart, J.,
Concur
______________________________________________________________________________
Attorney Thomas W. Burkart, Burkart Law Offices, 130 West State Street,
for P.O. Box 447, Hamel, IL 62046
Appellant
__________________________________________________________________________
Attorneys John L. Gilbert, Timothy C. Sansone, Sandberg, Phoenix & von Gontard,
for P.C., 600 Washington Avenue, 15th Floor, St. Louis, MO 63101
Appellees (attorneys for Alan J. Dunstan, Madison County Board, and Joseph D.
Parente); Heidi L. Eckert, Lowenbaum Law, 222 South Central Avenue,
Suite 900, Clayton, MO 63105 (attorney for John D. Lakin)
__________________________________________________________________________