dissenting:
We have repeatedly stated that a motion to dismiss under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615) may not be employed as an alternative to the summary judgment procedure provided in the Code of Civil Procedure (see, e.g., Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 502 N.E.2d 1096), and I am tempted to concur in the majority opinion solely on this basis. Yet, a defendant ought not be put to the expense and inconvenience of defending a groundless lawsuit, and I must conclude that this is such an action. See, e.g., Bergfeld v. Stork (1972), 7 Ill. App. 3d 486, 288 N.E.2d 15.
As the majority analysis of the relevant counts of the complaint demonstrates, it requires considerable extrapolation from the pleaded facts to postulate what proof plaintiff might adduce that could sustain recovery for plaintiff under these counts.
It seems to me apparent from the pleaded facts we are simply dealing with the unfortunate, but not unusual, circumstance of a failed business where creditors, or some creditors, do not get paid because there are no funds with which to pay. Why plaintiff would continue to provide goods and services for three years without any payment under repeated promises to pay one can only speculate. Other suppliers and creditors were paid, according to the complaint, and I see no allegations in the complaint that any defendant misappropriated any funds for its own use. Negligence or poor business judgment in the operation of the hospital could not support recovery for purely economic loss under the theories of recovery pleaded in the counts before us on appeal.
Focusing on some aspects of the complaint, first it seems to me no cause of action is stated against Centerre. Notwithstanding the innuendo in the complaint, suggested by reference to Centerre’s control over Alexander, all that is alleged is that Centerre received rental payments as trustee for the bond holders, which it was entitled to receive from the two managers, HMA and National Medical, which they were required to pay before any creditor was paid under the contractual documents pleaded in the complaint. These facts are clear from the written agreements set out in the complaint. There is no allegation that Centerre did not pay over these monies to the bondholders as it was obligated to do under the terms of the indenture. I do not believe that unjust enrichment was properly pleaded as Centerre received what it was entitled to receive as trustee for the bondholders, which is unrelated to the nonpayment of the sums due plaintiff.
As regards the allegations of fraud, the well-pleaded facts simply allege promises to pay in the future. Such promises, even assuming plaintiff was justified in relying on them, considering it was never paid, are not misrepresentations of existing facts and cannot be the basis for an action for fraud unless a scheme to defraud is alleged. (Kusiciel v. La Salle National Bank (1982), 106 Ill. App. 3d 333, 435 N.E.2d 1217; Younger v. Revelle (1979), 78 Ill. App. 3d 1, 397 N.E.2d 221.) I do not consider the allegations of fact sufficient to allege a scheme under this narrow exception to the rule as the well-pleaded facts simply allege that certain creditors were paid and plaintiff was not paid notwithstanding repeated promises by the defendants that plaintiff would be paid. While the word “scheme” appears in count VIII, the well-pleaded facts simply allege promises by the individual defendants that plaintiff would be paid. No specific scheme to defraud is pleaded. International Meat Co. v. Bockos (1987), 157 Ill. App. 3d 810, 510 N.E.2d 1013.
As to counts IV and VI alleging tortious interference with contract by HMA and National Medical, it is apparent from the allegations in the complaint that these defendants provided all management services for the hospital, including the furnishing of a controller, and they collected accounts and paid all bills. Plaintiff’s contract was signed by Holley, the hospital administrator employed by HMA, and count II of the complaint alleges that HMA, acting pursuant to the management agreement, “caused” the hospital to enter into the pharmaceutical contract with plaintiff.
Nowhere in counts IV and VI does plaintiff plead facts alleging that HMA’s and National Medical’s refusal to pay plaintiff was unjustified. Plaintiff’s allegation that the decision not to pay plaintiff was “without legal justification” is simply a legal conclusion. Under Swager v. Couri (1979), 77 Ill. 2d 173, 395 N.E.2d 921, lack of legal justification is an element of plaintiff’s case. Where the gravamen of the complaint is that a third party caused a contracting party not to pay money due under a contract, I believe it is required that plaintiff plead facts stating that the funds were available for payment but were not paid because of defendant’s unjustified conduct in causing nonpayment. All that is alleged here is that defendants caused some providers and creditors to be paid, but not plaintiff. I do not believe this is sufficient.
I believe counts IV and VI are defective for an additional reason. The tort of interference with contractual relations simply does not apply to these facts as pleaded. It is apparent from the complaint that Mt. Vernon Hospital, Inc., was only a contracting entity. It took no part in the operation of the hospital. The hospital administrators were HMA and National Medical, who were charged with the duties of performing all contractual duties entered into by Mt. Vernon Hospital. In fact, HMA negotiated and signed plaintiff’s contract. HMA and National Medical were responsible for performing the obligations of this contract. I do not believe these defendants can be charged with tortiously interfering with a contract by inducing the breach of a contract they were responsible to perform. As in Loewenthal Securities Co. v. White Paving Co. (1932), 351 Ill. 285, 299, 184 N.E. 310, 315, HMA and National Medical were not intermeddling outsiders. They were the entities responsible for the complete operation of the hospital, including performance of all contracts. They were privileged to exercise their business judgment in paying suppliers and creditors. Their conduct cannot be charged with the malice required to sustain an action for tortious interference with contract. As I read the court’s decision in Swager v. Couri (1979), 77 Ill. 2d 173, 190, 395 N.E.2d 921, 928, our supreme court would not impose liability for tortious interference with contract under these circumstances.