Loyola Academy v. S&S Roof Maintenance, Inc.

JUSTICE JIGANTI

delivered the opinion of the court:

The trial court granted summary judgment in favor of the defendant. The plaintiff subsequently sought to amend its pleadings. The trial court denied the plaintiff’s motion. This appeal questions the power and discretion of the trial court to deny the motion to amend.

The plaintiff, Loyola Academy, filed a three-count complaint against the defendants, S&S Roof Maintenance, Inc., and Kelly Energy Systems, Inc., seeking recovery for damages incurred to its roof. In count I, directed against S&S, Loyola alleged various acts of negligence related to S&S’s installation of Loyola’s roofing system. In count II, also directed against S&S, Loyola alleged S&S’s breach of an implied warranty of merchantability. In count III, directed against Kelly, the manufacturer of the roof, Loyola alleged breach of an express warranty. The trial court granted summary judgment in favor of the defendants on counts II and III. Loyola moved for a reconsideration of the summary judgment order. The court denied the motion. S&S then filed a motion to dismiss count I, the sole remaining count. At the hearing on S&S’s motion, Loyola made an oral motion for leave to file an amended complaint. The court, with prejudice, granted S&S’s motion to dismiss, and without prejudice, denied Loyola leave to amend. Thereafter, Loyola filed a written motion for leave to amend. In the proposed amended complaint, Loyola alleged that defendant Kelly had breached an implied warranty of merchantability and violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121½, par. 261 et seq.). Loyola further alleged against both defendants Kelly and S&S breach of an implied warranty of fitness for a particular purpose and breach of contract. The trial court denied Loyola’s motion for leave to amend the complaint.

In appealing the trial court’s denial of leave to amend, Loyola maintains that under section 2—1005(g) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(g)), the trial court is explicitly granted the power upon just and reasonable terms to permit amendments after summary judgment. Loyola asserts that the trial court’s denial of its leave to amend was an abuse of discretion. Section 2—1005(g) of the Code, effective September 14,1985, provides:

“Before or after the entry of a summary judgment, the court shall permit pleadings to be amended upon just and reasonable terms.” Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(g).

The defendants’ response to Loyola’s argument is that the standard for amending complaints after any final judgment is enunciated in section 2—616(c) of the Code of Civil Procedure, which states:

“A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.” (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(c).)

Based on section 2—616(c), the defendants conclude that after summary judgment has been entered pleadings may be amended only to conform the pleadings to the proofs. In support of their argument the defendants cite Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 525 N.E.2d 1127. In Wells, the court reasoned that when taken together, sections 2—616(c) and 2—1005(g) stand for the proposition “that before or after a grant of summary judgment, but before the summary judgment becomes final, the court shall permit pleadings to be amended upon just and reasonable terms.” (Wells, 171 Ill. App. 3d at 1020, 525 N.E.2d at 1132.) The court went on to conclude that, after final judgment, the only permissible amendments are those which conform the pleadings to the proofs pursuant to section 2—616(c).

Our analysis diverges from that of the Wells court. The Code of Civil Procedure is to be liberally construed “to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” (Ill. Rev. Stat. 1985, ch. 110, par 1—106.) Standing alone, section 2—616(c) limits amendments to pleadings after final judgment to those that conform to the proofs. In the present case, the summary judgment had already been entered when Loyola made a motion to amend the pleadings. Nevertheless, we do not believe that Loyola is limited to amendments that conform the pleadings to the proofs. We believe that the court’s discretionary power under section 2—1005(g) of the Code of Civil Procedure to permit amendments upon just and reasonable terms implicates the power of the court to vacate judgments under sections 2—1203 and 2—1301(e). (See Ill. Rev. Stat. 1985, ch. 110, pars. 2-1203, 2-1301(e).) It is within the court’s discretion to vacate a judgment when to do so promotes substantial justice between the parties. (Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 526 N.E.2d 664.) If the court in its discretion believes that under the just and reasonable standard of section 2—1005(g) an amendment to the pleadings is appropriate, the court, in the interest of substantial justice, should vacate the judgment and allow the amendment. In the present case the court had the discretionary power to vacate the summary judgment order, thus removing the section 2—616(c) final judgment impediment to Loyola’s section 2—1005(g) motion for leave to amend. See Ruklick v. Julius Schmid, Inc. (1988), 169 Ill. App. 3d 1098, 523 N.E.2d 1208.

Having established, contrary to the defendants’ argument, that the trial court did have the authority to grant Loyola’s motion for leave to amend, we turn now to examine whether the court properly exercised its discretion in denying Loyola’s motion. Both the defendants and the plaintiff in this case cite to the case of Kupianen v. Graham (1982), 107 Ill. App. 3d 373, 437 N.E.2d 774, for the factors the court should bear in mind in deciding whether to grant an amendment to the pleadings. In Kupianen, the appellate court considered whether the proposed amendment would cure the defective pleading, whether there had been previous opportunities to amend, the timeliness of the proposed amendment, and the potential prejudice or surprise to the other party. It is important to note, however, that in the Kupianen case, the movant appealed from the trial court’s denial of his motion to amend the pleadings after the court had dismissed his countercomplaint.

In the present case, we are dealing with the court’s denial of a motion to amend the pleadings after the court granted summary judgment. Different considerations are applicable depending upon the stage of the proceedings in which the movant first brings the proposed amendment. (See Able v. Pure Oil Co. (1972), 8 Ill. App. 3d 558, 290 N.E.2d 331.) The later in the proceedings the movant proposes the amendment, the more likely it is to prejudice the opposing party and burden the court. (See 3 R. Michael, Illinois Civil Practice §26.2 (1989).) We do not view motions to amend the pleadings after summary judgment with the same liberality that we view motions to amend after a dismissal order in the pleading stage. Upon reaching the summary judgment stage of the proceedings, the court has moved from an examination of the sufficiency of the pleadings, through the discovery stage, to a determination of whether there are material issues of fact to advance to a full trial. See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.

Presumptively, by the time of the hearing on the motion for summary judgment, the parties know everything to be known about the facts and the law of the case. The hearing on the motion is a significant, potentially dispositive stage of the proceeding. Entering this stage, the trial judge has a right and a need to know what the parties know. Accordingly, motions to amend pleadings based on information known to the movant before the hearing should be made before the court reaches the summary judgment stage. (Cf. Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 545 N.E.2d 689 (after motion for summary judgment has been granted, a new matter should not be allowed in the absence of a reasonable explanation of why it was not made available at the time of the original hearing).) It is not appropriate for the moving party to engage in piecemeal litigation — seeing one theory of the case to completion before proposing another. See Powers v. National Mirror Works (1977), 52 Ill. App. 3d 592, 367 N.E.2d 763.

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

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON, J., concurs.