dissenting:
Because I disagree with the majority’s conclusion that Bell’s motion to dismiss was improvidently granted, I respectfully dissent.
In ruling on a section 2 — 615 motion to dismiss, all well-pleaded facts are taken as true and all reasonable inferences from those facts are drawn in favor of the plaintiff; however, mere conclusions of law or fact unsupported by specific factual allegations in the complaint are disregarded. Doe v. Calumet City, 161 Ill. 2d 374, 384-85, 641 N.E.2d 498, 503 (1994). Dismissal is proper when plaintiff makes conclusory allegations without a factual basis; specific facts must be pleaded upon which such conclusions rest. Universal Outdoor, Inc. v. Village of Elk Grove, 194 Ill. App. 3d 303, 305, 550 N.E.2d 1254, 1256 (1990). When a claim is founded on a written instrument, such as the lease in the instant case, the lease must be attached to the complaint as an exhibit or recited therein, or an affidavit appended showing the instrument to be inaccessible to the pleader. 735 ILCS 5/2 — 606 (West 1996).
Attached to the Retreat’s complaint was a copy of the July 1, 1976, five-year lease and a March 18, 1981, “addendum” to that lease. Paragraph 8 of the 1976 lease provided:
“It is further agreed that the Lessee shall have the exclusive right and option to renew or extend this Lease for an additional term of five years at the expiration of the original five [-] year term, under the same terms and conditions as provided for herein with the exception of this renewal provision', provided, however, that notice of the exercise of such option shall be given by Lessee to the Lessor at least sixty (60) days before the expiration of the term of this lease, said notice to be in writing.” (Emphasis added.)
The Retreat did not attach any written notice of renewal, nor an affidavit showing the instrument to be inaccessible, but did attach the March 18, 1981, addendum, which provides in relevant part:
“WHEREAS, it is the intention of the parties hereto that the subject Lease may be extended for an additional five (5) year period at the option of Lessee, being from July 1, 1986[,] to June 30, 1991; and,
* * *
1. Lessee shall have the exclusive right and option to renew and extend the subject Lease for an additional term of five (5) years at the expiration of the extension to June 30, 1986, said renewal and extension being from July 1, 1986 [,] to June 30, 1991, under the same terms and conditions as contained in the Lease dated the 1st day of July, 1976.
2. Notice of the exercise of this option shall be given by Lessee to Lessor at least sixty (60) days before the 30th day of June, 1986, said notice to be in writing.”
It is apparent from the terms of the lease that unless it was extended by exercise of the option to renew for a five-year period, through written notice to the lessor at least 60 days prior to expiration, it expired on June 30, 1981. The Retreat did not attach a copy of any written notice exercising the option to extend the lease to June 30, 1986. The March 1981 addendum to the lease by its terms confers only a future option on a second five-year renewal following expiration of the option provided for in the July 1, 1976, lease. While referencing the original five-year renewal commencing July 1, 1981, the addendum makes no mention of an actual exercise of that option or of notice provided the lessor. Rather, the addendum appears to constitute a modification of paragraph 8 of the July 1, 1976, lease, which had precluded an extension of the five-year renewal option.
Even if Bell’s admission, in his withdrawn answer to the complaint, that the lease was in full force and effect until June 30, 1986, constitutes an evidentiary fact or a binding judicial admission, there is no evidence of any extension beyond that date. The Retreat did not attach to its complaint or file of record any instrument evidencing exercise of the renewal option commencing July 1, 1986, or of timely notice to lessor of exercise of that option. Absent instruments evidencing exercise of the second renewal option, the Retreat could not support its conclusory allegation that the lease was in full force and effect at the time of sale of the property on July 20, 1989, the factual basis upon which its claim for specific performance was founded.
The majority concludes that Bell never raised the applicability of section 2 — 606 as a “defense” in the trial court but does so for the first time on appeal. However, Bell’s motion to dismiss at paragraph 1(a) provides:
“The lease agreement referred to in Paragraph 4 thereof, upon which it is purported to be based expired of its own terms on June 30, 1981, no extension or renewal being attached thereto; nor is there attached thereto any written notice or election to exercise the option to extend pursuant to the provisions thereof.”
The majority suggests that Bell’s motion to dismiss was untimely based on the case’s extensive procedural history and states that if Bell had information clearly indicating that the lease had not been extended, he should have again filed for summary judgment, rather than withdrawing his answer and moving to dismiss the complaint. I disagree with the suggestion that Bell’s motion to dismiss for insufficiency of the complaint was untimely. It is appropriate at any stage of the proceedings, and particularly before verdict, to raise the objection that the complaint fails to state a cause of action and is therefore legally insufficient. Wimmer v. Koenigseder, 108 Ill. 2d 435, 439, 484 N.E.2d 1088, 1090 (1985) (waste of judicial resources to allow continuation of a proceeding where plaintiff failed to state a valid cause of action even though objection brought for the first time on review). Moreover, despite any irregularity in the procedural history of this case, the burden was not on Bell to prove a negative, i.e., that the lease had not been renewed, but was borne by the Retreat to attach to its complaint proof of the instrument sued on. The June 21, 1993, affidavit of Richard Ackman, a member of and one time attorney for the Retreat, does not comport with the requirements of section 2 — 606 because it does not allege facts showing that the lease is not accessible. Moreover, Ackman’s affidavit is insufficient factual support for the complaint for two additional reasons. While Ackman avers that he prepared a notice of extension of the lease and mailed it to the Billberg estate, he does not specify the time period in which he did so (required to be earlier than 60 days prior to lease end) nor to which of the extensions he refers — July 1, 1981, or July 1, 1986. It is also noteworthy that Ackman’s affidavit is dated more than three years before the trial court granted Bell’s motion to dismiss and also allowed the Retreat leave to amend. Nevertheless, the Retreat did not amend its complaint. Surprisingly, the majority supplies its own conjecture as rationale for the missing instruments or averments as to accessibility.
For all the above reasons, I respectfully dissent.