Reynolds v. Jimmy John's Enterprises, LLC

ILLINOIS OFFICIAL REPORTS

Appellate Court

Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139

Appellate Court ROBERT W. REYNOLDS, Plaintiff-Appellant, v. JIMMY JOHN’S

Caption ENTERPRISES, LLC, a/k/a and/or d/b/a JIMMY JOHN’S FRANCHISE,

LLC, a/k/a and/or d/b/a JIMMY JOHN’S, LLC; and JTHREE, INC., an

Illinois Corporation, a/k/a and/or d/b/a JIMMY JOHN’S, Defendants-

Appellees.

District & No. Fourth District

Docket No. 4-12-0139

Filed April 2, 2013

Rehearings denied May 6, 2013

Held In an action for the injuries suffered by plaintiff when the motorcycle he

(Note: This syllabus was riding collided with a car driven by one of defendant’s delivery

constitutes no part of drivers, the trial court’s dismissal of the counts of plaintiff’s amended

the opinion of the court complaint alleging negligent training and supervision of the driver were

but has been prepared reversed and the cause was remanded on the grounds that a cause of

by the Reporter of action for negligence was stated and defendant used sections 2-615 and

Decisions for the 2-619 of the Code of Civil Procedure to contest the sufficiency of

convenience of the plaintiff’s factual allegations.

reader.)

Decision Under Appeal from the Circuit Court of Sangamon County, No. 11-L-89; the

Review Hon. Patrick W. Kelley, Judge, presiding.

Judgment Affirmed in part and reversed in part; cause remanded.

Counsel on Gregory P. Sgro (argued), of Sgro, Hanrahan, Durr & Rabin, LLP, and

Appeal Jason P. Young, of Jason Young Law Office, both of Springfield, for

appellant.

Jill B. Lewis (argued), of Marasa Lewis, of Chicago, for appellee Jimmy

John’s Enterprises, LLC.

Scott E. Umland (argued), of Fleming & Umland, of Peoria, for appellee

JThree, Inc.

Panel JUSTICE KNECHT delivered the judgment of the court, with opinion.

Presiding Justice Steigmann concurred in the judgment and opinion.

Justice Turner dissented, with opinion.

OPINION

¶1 In April 2011, plaintiff, Robert W. Reynolds, sued defendants, Jimmy John’s Enterprises,

LLC, Jimmy John’s Franchise, LLC, Jimmy John’s, LLC (collectively Jimmy John’s); and

JThree, Inc. (JThree), alleging liability for personal injuries resulting from a motor vehicle

accident. In October 2011, plaintiff filed a seven-count amended complaint alleging multiple

direct liability claims against defendants. JThree and Jimmy John’s filed motions to dismiss

plaintiff’s amended complaint pursuant to sections 2-615 and 2-619(a) of the Code of Civil

Procedure (Code) (735 ILCS 5/2-615, 2-619(a) (West 2010)). In January 2012, the trial court

dismissed all seven counts contained in plaintiff’s amended complaint.

¶2 On appeal, plaintiff asserts his amended complaint adequately pled counts of direct

liability for (1) negligent supervision against JThree and Jimmy John’s and (2) negligent

training against JThree and Jimmy John’s. Because the trial court erred in granting

defendants’ motion to dismiss, we reverse in part the court’s dismissal of plaintiff’s amended

complaint as it applies to counts I, II, III and IV; we affirm the dismissal in part insofar as it

applies to counts V, VI, and VII.

¶3 I. BACKGROUND

¶4 In April 2011, plaintiff filed a single-count complaint against defendants, alleging they

were liable for personal injuries plaintiff sustained from an April 2010 motor vehicle

accident between himself and Jake Sawyer, a delivery driver for defendants. Jimmy John’s

is a franchiser of various “Jimmy John’s” sandwich restaurants throughout the United States.

JThree is a franchisee of Jimmy John’s and independently owns a “Jimmy John’s” restaurant

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located on Iles Avenue in Springfield, Illinois.

¶5 In May 2011, JThree filed a motion to dismiss pursuant to section 2-615 of the Code (735

ILCS 5/2-615 (West 2010)) because plaintiff “cannot hold [it] directly liable for creating a

situation which allegedly fostered unsafe driving practices.” In June 2011, Jimmy John’s

filed a motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West

2010)), asserting plaintiff commingled theories of direct and vicarious liability in his April

2011 complaint. In August 2011, the trial court granted defendants’ motions to dismiss and

dismissed with prejudice all vicarious liability claims pursuant to section 2-619 of the Code

(735 ILCS 5/2-619 (West 2010)) and allowed plaintiff to amend his complaint on theories

of direct liability. In February 2011, plaintiff and Sawyer entered into a settlement agreement

resolving liability between those two parties.

¶6 In October 2011, plaintiff filed a seven-count amended complaint alleging as follows: (1)

negligent training against JThree (count I); (2) negligent training against Jimmy John’s

(count II); (3) negligent supervision against Jimmy John’s (count III); (4) negligent

supervision against JThree (count IV); (5) implied authority against JThree (count V); (6)

joint venture against all defendants (count VI); and (7) “principal agent/apparent authority”

against all defendants (count VII).

¶7 According to plaintiff, on April 13, 2010, at approximately 6:35 p.m., plaintiff was

traveling westbound on Iles Avenue in Springfield on his Harley-Davidson motorcycle. At

that time, Sawyer, a delivery driver for defendants, driving a 1990 Chrysler LeBaron, exited

a commercial driveway onto Iles Avenue. Sawyer had driven across the parking lot in front

of the Jimmy John’s restaurant and into the U.S. Bank parking lot to exit at this driveway.

Sawyer turned left out of the U.S. Bank driveway, failing to yield to traffic, and collided with

plaintiff’s motorcycle. Plaintiff suffered serious and permanent injury as a result of the

collision, including a permanent partial disability.

¶8 In paragraph eight of his amended complaint, addressing general allegations against all

defendants, plaintiff alleged:

“Defendants ([Jimmy John’s]) are franchisors to Defendant JThree, Inc. *** and as

such the above Defendants have a business relationship among said entities that

controlled certain acts and conduct of the Defendants (and its employees, agents or

representatives) at the time of the subject ‘incident’.”

¶9 In paragraph 19 of his amended complaint, plaintiff asserted defendants “hold themselves

out as making ‘freaky fast’ deliveries to the public and specifically instruct and encourage

their drivers to expedite such deliveries,” and that defendants “assert said deliveries will be

made within 15 minutes of receiving the sandwich order.” (At oral argument, plaintiff used

the term “mandate” to describe this 15-minute delivery claim. For purposes of simplification,

we phrase this allegation as having a “policy” of delivering the sandwiches within 15 minutes

of ordering.)

¶ 10 In paragraph 22 of his amended complaint, plaintiff alleged, when first hired, Sawyer was

given a manual to review for 20 minutes. The manual included information on proper

uniform requirements and knife safety, but no information “on how to make proper and safe

deliveries of sandwiches.”

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¶ 11 In paragraph 38 of his amended complaint, under count IV (negligent supervision)

against JThree, plaintiff alleged:

“That this Defendant knew or should have known that its drivers, and in particular

Jake Sawyer, made a regular practice of exiting its parking lot by driving into the parking

lot of its neighbor, U[.]S[.] Bank, and making a left turn from a driveway in order to

avoid the delay associated with using the traffic light to exit its own parking lot.”

In paragraph 40 of his amended complaint, plaintiff alleged JThree knew or should have

known its delivery drivers made a regular practice of “making an illegal left turn in order to

avoid the delay associated with using the traffic light to exit its own parking lot.”

¶ 12 In October 2011, JThree filed a motion to dismiss all counts against JThree contained in

plaintiff’s amended complaint. The motion, in its entirety, states as follows:

“Pursuant to 735 ILCS 5/2-615 and/or 735 ILCS 5/2-619, Defendant JTHREE, INC., an

Illinois Corporation, a/k/a and/or d/b/a Jimmy John’s (JTHREE) moves to dismiss

Counts I, IV, V, VI, and VII of Plaintiff’s Amended Complaint.”

The document continues as a memorandum of law for 16 pages. The memorandum in

support of its motion asserted count I (negligent training) should be dismissed pursuant to

section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)) and count IV (negligent

supervision) pursuant to both sections 2-615 and 2-619 of the Code. As part of the

memorandum, JThree filed a copy of Sawyer’s September 2011 discovery deposition

transcript, including a map exhibit (the transcript consists of 133 pages of testimony and is

printed 4 pages of testimony per printed page, totaling 34 pages in length), and case law. In

total, JThree’s filing was 67 pages in length.

¶ 13 In November 2011, Jimmy John’s filed a motion to dismiss all claims against it pursuant

to section 2-619(a)(9) of the Code. The motion, in its entirety, states as follows:

“NOW COME the defendants, JIMMY JOHN’S ENTERPRISES, LLC, JIMMY

JOHN’S FRANCHISE, LLC, and JIMMY JOHN’S LLC, by and through their attorneys

***, and pursuant to § 2-619(a)(9) of the Illinois Code of Civil Procedure, move this

Court for entry of an Order dismissing with prejudice plaintiff’s Amended Complaint

and, in support thereof, state as follows[.]”

The document continues as a memorandum of law for 14 pages to which Jimmy John’s

appended Sawyer’s deposition testimony, a map exhibit, and an affidavit from Jeff Vaughan,

chief financial officer of Jimmy John’s Franchise, LLC. In total, Jimmy John’s filing was 67

pages long.

¶ 14 In January 2012, the trial court dismissed, with prejudice, all counts contained in

plaintiff’s amended complaint. The court did not state a basis for its decision or citation for

its dismissal.

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 On appeal, plaintiff asserts his amended complaint adequately pled counts of direct

liability for (1) negligent supervision against Jimmy John’s and JThree (counts I and II) and

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(2) for negligent training against JThree and Jimmy John’s (counts III and IV). Specifically,

plaintiff contends (1) defendants were negligent for failing to instruct their employees in the

making of “rapid deliveries in a safe and reasonable manner” because (a) defendants have

a policy of “freaky fast” delivery within 15 minutes of the sandwich order, (b) defendants

“instructed and encouraged” their drivers to “expedite” the delivery, and (c) when hired,

defendants’ employees were provided with a manual to review, which contained no

information on how to make proper and safe deliveries; and (2) defendants’ “freaky fast”

delivery policy creates a duty to the public to properly supervise their employees in making

such deliveries. Defendants both argue (1) they did not owe a duty to plaintiff to supervise

or train Sawyer and (2) plaintiff did not adequately plead facts to support such duty.

¶ 18 The trial court’s January 2012 order provides no guidance into its decision to grant

defendants’ motions. There is no transcript or bystander’s report (Ill. S. Ct. R. 323(c) (eff.

Dec. 13, 2005)) to illuminate the court’s basis for granting these motions and dismissing

plaintiff’s amended complaint with prejudice. At oral argument, plaintiff asserted the trial

court did not permit him the opportunity to amend his amended complaint because there

were no facts that could be pleaded to state a cause of action against these defendants, i.e.,

a section 2-615 dismissal. As (1) plaintiff can state a cause of action against these defendants

based on negligence, and (2) defendants improperly used section 2-615 and section 2-

619(a)(9) to contest the sufficiency of factual allegations–as apparent from defendants’ use

of facts outside the pleadings–the trial court erred in granting defendants’ motions to dismiss.

¶ 19 A. Motions Combining Section 2-615 and Section 2-619

¶ 20 JThree’s motion to dismiss asserted it was based on section 2-615 “and/or” section 2-619

of the Code, and fails to comply with the procedural requirements for combined motions.

Section 2-619.1 of the Code permits combined motions pursuant to section 2-615, section

2-619, and section 2-1005. 735 ILCS 5/2-619.1 (West 2010). Section 2-619.1 of the Code

“explicitly requires that a motion combining both sections 2-615 and 2-619(a)(1) must be in

parts, (2) must ‘be limited to and shall specify that it is made under’ either section 2-615 or

2-619, and (3) must ‘clearly show the points or grounds relied upon under the [s]ection upon

which it is based.’ ” (Emphases in original.) Howle v. Aqua Illinois, Inc., 2012 IL App (4th)

120207, ¶ 73, 978 N.E.2d 1132 (quoting 735 ILCS 5/2-619.1 (West 2010)). Section 2-619.1

does not authorize the commingling of distinctive claims pursuant to section 2-615, 2-619,

or 2-1005. Howle, 2012 IL App (4th) 120207, ¶ 72, 978 N.E.2d 1132; Jenkins v. Concorde

Acceptance Corp., 345 Ill. App. 3d 669, 674, 802 N.E.2d 1270, 1276 (2003) (First District)

(section 2-619.1 “does not authorize hybrid motion practice”); Northern Trust Co. v. County

of Lake, 353 Ill. App. 3d 268, 278, 818 N.E.2d 389, 398 (2004) (Second District) (section

2-619.1 does not authorize hybrid motion practice); Higgins v. Richards, 401 Ill. App. 3d

1120, 1125, 937 N.E.2d 215, 220 (2010) (Fifth District) (“[S]ection 2-619.1 was the

legislature’s response to the fact that ‘[r]eviewing courts have long disapproved of [the]

slipshod practice’ of filing hybrid motions to dismiss pursuant to both sections 2-615 and 2-

619 because those motions ‘cause[ ] unnecessary complication and confusion.’ ” (quoting

Talbert v. Home Savings of America, F.A., 265 Ill. App. 3d 376, 379, 638 N.E.2d 354, 357

(1994) (First District))); see also Janes v. First Federal Savings & Loan Ass’n of Berwyn, 57

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Ill. 2d 398, 405-06, 312 N.E.2d 605, 609 (1974) (rejecting “hybrid procedure” combining

motion challenging the legal sufficiency and at the same time answering the complaint while

filing affidavits stating facts and demanding judgment on the merits). Combined motions

pursuant to section 2-619.1 retain procedural distinctions between section 2-615, section 2-

619, and section 2-1005 based motions, and parties are not free to ignore these distinctions.

See Green v. Trinity International University, 344 Ill. App. 3d 1079, 1086, 801 N.E.2d 1208,

1214 (2003) (Second District) (section 2-619.1 does not permit a party to “submit evidentiary

material going to the truth of the allegations contained in the complaint because a motion

pursuant to either section 2-615 or 2-619 concedes the truth of all well-pleaded allegations”).

¶ 21 “[T]rial courts should not–and need not–accept for consideration combined motions

under section 2-619.1 that do not meet these statutory requirements.” Howle, 2012 IL App

(4th) 120207, ¶ 73, 978 N.E.2d 1132. Where a motion does not comply with section 2-619.1,

commingles claims, or creates unnecessary complications and confusion, trial courts should

sua sponte reject the motion and give the movant the opportunity (if they wish) to file a

motion that meets the statutory requirements of section 2-619.1, or the movant may choose

to file separate motions under section 2-615 and section 2-619 “thereby avoiding any

improper commingling of their claims.” Howle, 2012 IL App (4th) 120207, ¶ 73, 978 N.E.2d

1132.

¶ 22 Here, JThree’s motion does not comply with section 2-619.1 because it is pursuant to

section 2-615 “and/or” section 2-619, not in separate parts, and does not specify the points

or grounds relied on. JThree’s basis for dismissal and points and grounds relied on must be

gleaned from reading the memorandum of law. JThree’s motion is an example of the hybrid

motion practice section 2-619.1 does not authorize.

¶ 23 B. JThree’s “Motion” Pursuant to Section 2-615 of the Code

¶ 24 JThree’s memorandum of law supporting its one-sentence “motion to dismiss” asserted

the trial court should dismiss count I (negligent training) of plaintiff’s amended complaint

pursuant to section 2-615 of the Code. The memorandum asserted (1) an employer does not

have a duty to train or control its delivery driver employees when those drivers are licensed

drivers, because the dangers incident to driving “were fully understood by the employee, Jake

Sawyer” (in its brief, JThree further asserts plaintiff is restricted to a theory of vicarious

liability because Sawyer’s actions were committed within the scope of employment), and (2)

plaintiff’s amended complaint consisted of “conclusory allegations [that] are meaningless

without facts to explain them,” such as (a) how JThree instructs its drivers, (b) how its

advertising campaign of “freaky fast” deliveries implies it accepted, directed, encouraged,

or required unsafe driving, and (c) why deliveries made within 15 minutes cause a dangerous

situation. In support of its arguments, JThree cited section 317 of the Restatement (Second)

of Torts (Restatement (Second) of Torts § 317 cmt. a (1965) (duty of master to control

conduct of servant)), and National Convenience Stores Inc. v. Matherne, 987 S.W.2d 145

(Tex. Ct. App. 1999). JThree makes these same arguments on appeal.

¶ 25 A section 2-615(a) motion to dismiss tests the legal sufficiency of the complaint based

on defects apparent on its face. Doe-3 v. McLean County Unit District No. 5 Board of

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Directors, 2012 IL 112479, ¶ 15, 973 N.E.2d 880. “In other words, the defendant in such a

motion is saying, ‘So what? The facts the plaintiff has pleaded do not state a cause of action

against me.’ ” Winters v. Wangler, 386 Ill. App. 3d 788, 792, 898 N.E.2d 776, 779 (2008).

A section 2-615(a) motion presents the question of whether the facts alleged in the

complaint, viewed in the light most favorable to the plaintiff, and taking all well-pleaded

facts and all reasonable inferences that may be drawn from those facts as true, are sufficient

to state a cause of action upon which relief may be granted. Doe-3, 2012 IL 112479, ¶ 16,

973 N.E.2d 880; Winters, 386 Ill. App. 3d at 793, 898 N.E.2d at 780. “[A] cause of action

should not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set of

facts can be proved that would entitle the plaintiff to recovery.” Marshall v. Burger King

Corp., 222 Ill. 2d 422, 429, 856 N.E.2d 1048, 1053 (2006); Thurman v. Champaign Park

District, 2011 IL App (4th) 101024, ¶ 8, 960 N.E.2d 18 (To survive a section 2-615 motion

a “ ‘plaintiff must allege facts sufficient to bring a claim within a legally recognized cause

of action.’ ” (quoting Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161, 920

N.E.2d 220, 223 (2009))). In ruling on a section 2-615 motion, the court only considers (1)

those facts apparent from the face of the pleadings, (2) matters subject to judicial notice, and

(3) judicial admissions in the record. Gillen v. State Farm Mutual Automobile Insurance Co.,

215 Ill. 2d 381, 385, 830 N.E.2d 575, 577 (2005); Thurman, 2011 IL App (4th) 101024, ¶ 8,

960 N.E.2d 18. A section 2-615(a) motion dismissal is reviewed de novo. Doe-3, 2012 IL

112479, ¶ 15, 973 N.E.2d 880.

¶ 26 JThree’s “motion” attacks both the factual and legal sufficiency of plaintiff’s amended

complaint. A section 2-615(a) motion only attacks the legal sufficiency of the complaint and

accepts all well-pleaded facts as true. Thus, it is a red flag of impropriety to append

deposition testimony to such a motion. JThree’s memorandum cites Sawyer’s deposition

testimony in support of its contention plaintiff’s complaint needs additional facts to “explain”

the factual allegations and asserting Sawyer “understood” the risks associated with “the job

of delivery driving.” JThree’s use of Sawyer’s deposition testimony in support of its section

2-615(a) motion is procedurally improper.

¶ 27 JThree’s attacks on the legal sufficiency of the amended complaint are unpersuasive. A

claim of direct negligence “alleges that the employer was itself negligent.” (Emphasis in

original.) Vancura v. Katris, 238 Ill. 2d 352, 375, 939 N.E.2d 328, 343 (2010). To establish

a claim of direct negligence, plaintiff does not have to show the injury was committed within

the scope of the employee’s employment, but that a special relationship, such as an

employer-employee relationship, exists between the actor and the party whose conduct is to

be controlled. Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 231-32, 234, 745

N.E.2d 1166, 1180, 1181-82 (2000); Simpkins v. CSX Transportation, Inc., 2012 IL 110662,

¶¶ 14, 21, 965 N.E.2d 1092 (quoting Marshall, 222 Ill. 2d at 430, 856 N.E.2d at 1053)

(setting out elements for negligence and four factors to determine whether a duty ran from

the defendant to the plaintiff); see also Restatement (Second) of Agency § 213(a) (1958)

(principal may be directly liable for harm resulting from negligently giving improper or

ambiguous orders); Restatement (Third) of Agency § 7.05(1) (2006) (principal who conducts

an activity through an agent is subject to liability to third party caused by the conduct if the

harm was caused by the principal’s negligence in training or supervising). Section 317 of the

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Restatement does not support JThree’s assertion its liability is restricted to vicarious liability

where Sawyer’s conduct occurred within the scope of employment. JThree’s reliance on

Matherne for the proposition it does not have “a duty to control the legal driving

choices/habits of an employee” is misplaced as the Texas appellate court only addressed

whether an employer owed its employee a duty to warn about driving hazards and not

whether an employer owes a member of the public a duty to train its employees. Matherne,

987 S.W.2d at 149. See also Dowler v. New York, Chicago & St. Louis R.R. Co., 5 Ill. 2d

125, 131, 125 N.E.2d 41, 45 (1955) (ordinarily employer does not have a duty to warn its

employees where the risk is obvious and nothing is gained by warning). Plaintiff’s claims are

not about whether JThree had a duty to control its employee’s driving behavior, but whether

it had a duty to train its employees in how to make safe deliveries.

¶ 28 Plaintiff pleaded sufficient facts, taken as true, to raise a question under Illinois

negligence principles whether JThree engaged in a course of action creating a foreseeable

risk of injury to members of the public, thereby creating a duty to ameliorate that risk by

training its employees that the rules of the road trump its 15-minute policy and must always

be adhered to, even while trying to accomplish deliveries within the 15-minute window. See

Simpkins, 2012 IL 110662, ¶ 19, 965 N.E.2d 1092 (“Thus, if a course of action creates a

foreseeable risk of injury, the individual engaged in that course of action has a duty to protect

others from such injury.” (Emphasis in original.)). It remains to be seen whether (1) JThree

has an actual policy of 15-minute delivery rather than an advertising slogan of “freaky fast”

delivery, and (2) JThree provided some form of training to instruct its employees to maintain

their conduct within the confines of the law. However, a section 2-615(a) motion does not

require plaintiff to prove his case at this juncture, and plaintiff’s allegations are sufficient to

show liability may attach. Plaintiff should be permitted (if he so chooses) to amend his

amended complaint on count I.

¶ 29 C. Motion Practice Under Section 2-619(a)(9) of the Code

¶ 30 Section 2-619(a)(9) of the Code provides a defendant may file a motion for dismissal of

the action on the grounds “the claim asserted against defendant is barred by other affirmative

matter avoiding the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West

2010). Section 2-619(a)’s purpose is to provide litigants with a method of disposing of issues

of law and easily proved issues of fact–relating to the affirmative matter–early in the

litigation. Van Meter v. Darien Park District, 207 Ill. 2d 359, 367, 799 N.E.2d 273, 278

(2003).

¶ 31 A motion for involuntary dismissal under section 2-619(a)(9) of the Code admits the

legal sufficiency of the complaint, admits all well-pleaded facts and all reasonable inferences

therefrom, and asserts an affirmative matter outside the complaint bars or defeats the cause

of action. Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361, 919 N.E.2d 926, 931-32

(2009); Smith v. Waukegan Park District, 231 Ill. 2d 111, 120, 896 N.E.2d 232, 238 (2008);

Snyder v. Heidelberger, 2011 IL 111052, ¶ 8, 953 N.E.2d 415. In a section 2-619(a) motion,

the movant is essentially saying “ ‘Yes, the complaint was legally sufficient, but an

affirmative matter exists that defeats the claim.’ ” Winters, 386 Ill. App. 3d at 792, 898

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N.E.2d at 779. When ruling on the section 2-619(a)(9) motion, the court construes the

pleadings “in the light most favorable to the nonmoving party” (Sandholm v. Kuecker, 2012

IL 111443, ¶ 55, 962 N.E.2d 418), and should only grant the motion “if the plaintiff can

prove no set of facts that would support a cause of action” (Snyder, 2011 IL 111052, ¶ 8, 953

N.E.2d 415). A section 2-619(a)(9) motion dismissal is reviewed de novo. Kean, 235 Ill. 2d

at 361, 919 N.E.2d at 932.

¶ 32 1. Affirmative Matter Under Section 2-619(a)(9)

¶ 33 The standard articulation of an affirmative matter is

“ ‘[A] type of defense that either negates an alleged cause of action completely or refutes

crucial conclusions of law or conclusion[s] of material fact unsupported by allegations

of specific fact contained [in] or inferred from the complaint *** [not] merely evidence

upon which defendant expects to contest an ultimate fact stated in the complaint.’ ”

Smith, 231 Ill. 2d at 121, 896 N.E.2d at 238 (quoting 4 Richard A. Michael, Illinois

Practice § 41.7, at 332 (1989)).

The supreme court has further described an affirmative matter as “some kind of defense

‘other than a negation of the essential allegations of the plaintiff’s cause of action’ ” (Smith,

231 Ill. 2d at 120-21, 896 N.E.2d at 238 (quoting Kedzie & 103rd Currency Exchange, Inc.

v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993)), and “ ‘something in the nature

of a defense which negates the cause of action completely’ ” (Van Meter, 207 Ill. 2d at 367,

799 N.E.2d at 278 (quoting Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 486, 639 N.E.2d

1282, 1290 (1994))). For example, the existence of tort immunity or plaintiff’s lack of

standing is a proper affirmative matter pursuant to section 2-619(a)(9) as each completely

defeats the plaintiff’s ability to successfully prosecute its claim against the defendant. Smith,

231 Ill. 2d at 121, 896 N.E.2d at 238 (tort immunity); Jackson v. Randle, 2011 IL App (4th)

100790, ¶ 12, 957 N.E.2d 572 (standing); see also 4 Richard A. Michael, Illinois Practice

§ 41:7, at 475-78 (2d ed. 2011) (listing other defenses Illinois courts have held to be

affirmative matters).

¶ 34 An affirmative matter does not include “ ‘evidence upon which defendant expects to

contest an ultimate fact stated in the complaint.’ ” Smith, 231 Ill. 2d at 121, 896 N.E.2d at

238 (quoting 4 Richard A. Michael, Illinois Practice § 41.7, at 332 (1989)); Malanowski v.

Jabamoni, 293 Ill. App. 3d 720, 723, 688 N.E.2d 732, 735 (1997) (First District) (“Evidence

that merely refutes a well-pled fact in the complaint is not an ‘affirmative matter’ within the

meaning of [section 2-619(a)(9)].”); Zahl v. Krupa, 365 Ill. App. 3d 653, 659, 850 N.E.2d

304, 310 (2006) (Second District) (affirmative matter is “ ‘something more than evidence

offered to refute a well-pleaded fact in the complaint’ ” (quoting Heller Equity Capital Corp.

v. Clem Environmental Corp., 232 Ill. App. 3d 173, 178, 596 N.E.2d 1275, 1280 (1992)

(First District))). In other words, an affirmative matter is not the defendant’s version of the

facts as such a basis merely tends to negate the essential allegations of the plaintiff’s cause

of action. Howle, 2012 IL App (4th) 120207, ¶ 34, 978 N.E.2d 1132; Smith, 231 Ill. 2d at

120-22, 896 N.E.2d at 238; In re Marriage of Vaughn, 403 Ill. App. 3d 830, 835-36, 935

N.E.2d 123, 127 (2010) (First District) (“ ‘[W]here the affirmative matter is merely evidence

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upon which defendant expects to contest an ultimate fact stated in the complaint, section 2-

619(a)(9) should not be used.’ ” (quoting A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., 243

Ill. App. 3d 905, 912, 611 N.E.2d 619, 624 (1993) (Second District))); Glass Specialty Co.,

v. Litwiller, 147 Ill. App. 3d 653, 655, 498 N.E.2d 876, 878 (1986) (Third District) (an

affirmative matter “does not include every statement of evidentiary fact which tends to

negate allegations of the complaint”). Accordingly, section 2-619(a)(9) does not authorize

the defendant to submit affidavits or evidentiary matter for the purpose of contesting the

plaintiff’s factual allegations and presenting its version of the facts. See Smith, 231 Ill. 2d at

121-22, 896 N.E.2d at 238-39. Where a defendant seeks to address the complaint’s factual

allegations, a summary judgment motion pursuant to section 2-1005 of the Code is the proper

vehicle. Howle, 2012 IL App (4th) 120207, ¶ 37, 978 N.E.2d 1132; Barber-Colman Co. v.

A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1077, 603 N.E.2d 1215, 1224 (1992)

(Fifth District) (“[S]ection 2-619 motions should not be used to attack the factual basis of the

claim itself; if such an attack is to be made, it should be by a summary judgment motion

under section 2-1005 [(735 ILCS 5/2-1005 (West 2010))].”).

¶ 35 In Howle, this court addressed a motion to dismiss pursuant to section 2-619(a)(9) in

which the defendant argued it was not liable for personal injuries sustained as a result of a

dog bite. Howle, 2012 IL App (4th) 120207, ¶ 21, 978 N.E.2d 1132. The defendant attached

to its motion an affidavit from defendant’s vice president which claimed defendant never

owned or controlled any of the dogs involved. Howle, 2012 IL App (4th) 120207, ¶ 21, 978

N.E.2d 1132. This court concluded the defendant’s arguments addressed an essential issue

regarding liability “and amounted to nothing more than [the defendant’s] negation of an

essential element of [the plaintiff’s] complaint.” Howle, 2012 IL App (4th) 120207, ¶ 32, 978

N.E.2d 1132. This court characterized the defendant’s response as an answer and, similar to

the descriptions provided in Winters, described the defendant’s motion as a “ ‘Not true’ ”

response “that is essentially an answer denying an allegation set forth in the complaint.”

Howle, 2012 IL App (4th) 120207, ¶ 36, 978 N.E.2d 1132.

¶ 36 2. Burden of Presenting an Affirmative Matter

¶ 37 As the movant of a motion for involuntary dismissal pursuant to section 2-619(a)(9) of

the Code, the defendant, “has the burden of proof on the motion, and the concomitant burden

of going forward.” 4 Richard A. Michael, Illinois Practice § 41:8, at 481 (2d ed. 2011). “It

is well settled that the ‘affirmative matter’ asserted by the defendant must be apparent on the

face of the complaint; otherwise, the motion must be supported by affidavits or certain other

evidentiary materials.” Van Meter, 207 Ill. 2d at 377, 799 N.E.2d at 284; Hodge, 156 Ill. 2d

at 116, 619 N.E.2d at 735 (“By presenting adequate affidavits supporting the asserted

[affirmative] defense [citation], the defendant satisfies the initial burden of going forward

on the motion.”); see Nichol v. Stass, 192 Ill. 2d 233, 247-48, 735 N.E.2d 582, 591 (2000)

(defendant did not submit affidavits or other material in support of motion to dismiss and the

allegations in the complaint did not disclose that the action was barred by affirmative

matter); Betts v. Manville Personal Injury Settlement Trust, 225 Ill. App. 3d 882, 894-97, 588

N.E.2d 1193, 1201-03 (1992) (discussing use of deposition testimony to establish cause of

action was barred by statute of limitations). If the defendant carries this initial burden of

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going forward, the burden then shifts to the plaintiff, who must establish that the affirmative

matter asserted either is “ ‘ “unfounded or requires the resolution of an essential element of

material fact before it is proven.” ’ ” Van Meter, 207 Ill. 2d at 377, 799 N.E.2d at 284

(quoting Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383, 687 N.E.2d 1042,

1049 (1997), quoting Hodge, 156 Ill. 2d at 116, 619 N.E.2d at 735). The plaintiff may

establish this burden by presenting “affidavits or other proof.” 735 ILCS 5/2-619(c) (West

2010).

¶ 38 D. JThree’s “Motion To Dismiss” Count IV (Negligent Supervision)

¶ 39 In its memorandum, JThree asserted the trial court should dismiss count IV because

“Plaintiff has failed to allege true facts to establish a duty and breach of duty.” JThree

articulated count IV was deficient because (1) pursuant to section 2-619(a)(9), the court

should strike plaintiff’s “false” allegation that Sawyer made an “illegal” left turn out of the

U.S. Bank parking lot “based on Jake Sawyer’s [deposition] testimony and consider whether

Plaintiff has stated a cause of action without the allegation” and “the burden is on Plaintiff

to support his allegation and supply an affidavit to contradict Jake Sawyer’s testimony”; (2)

an employer does not have a duty to supervise its employees to select among various streets

based on their anticipated degree of safety to other roadway users; and (3) pursuant to section

2-615, plaintiff has failed to plead facts to support his allegation JThree knew or should have

known its employees made a regular practice of making an “illegal” left turn.

¶ 40 As with its “motion” to dismiss count I, JThree’s “motion” combines section 2-615(a)

and section 2-619(a)(9) based arguments and is not in compliance with section 2-619.1’s

requirements.

¶ 41 JThree moved to strike plaintiff’s “false” allegation the left turn is “illegal” pursuant to

section 2-619(a)(9). A motion to strike is properly brought pursuant to section 2-615(a), not

section 2-619(a)(9), and is “appropriate only if the allegation attacked is both irrelevant and

prejudicial to the moving party.” 3 Richard A. Michael, Illinois Practice § 27:2, at 687 (2d

ed. 2011); 735 ILCS 2-615(a) (West 2010). JThree does not attack the “illegal” allegation

as irrelevant or prejudicial, but as “false.” JThree’s concern may be that it does not want to

admit the allegation the turn was illegal. It is true “facts and not conclusions are to be

pleaded” (Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 519, 544 N.E.2d 733,

744 (1989)), and plaintiff’s amended complaint alleges Sawyer failed to yield to traffic on

the day of the accident, but did not cite any state statute or local ordinance for his allegation

the turn was illegal. (On appeal, plaintiff provides two City of Springfield ordinances

(Springfield Ordinance Code § 74.86 (adopted Mar. 21, 1989); Springfield Ordinance Code

§ 74.08(c) (adopted Mar. 21, 1989)) in support of the assertion Sawyer’s conduct was illegal

for avoiding the traffic signal.) A section 2-619 motion only admits the essential allegations

of the cause of action pleaded and “[f]acts pleaded that are not relevant to the pleader’s prima

facie case are not ‘well pleaded.’ ” 4 Richard A. Michael, Illinois Practice § 41:2, at 418-20

(2d ed. 2011). Plaintiff provided factual allegations stating Sawyer (1) drove across the

parking lot to avoid the traffic signal and (2) turned left out of the U.S. Bank parking lot

(plaintiff does not expressly allege Sawyer crossed a lane of traffic, only that Sawyer was

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turning east and plaintiff was traveling westbound). Plaintiff’s allegations are sufficient to

support his claim JThree negligently supervised its employee. See Doe v. Brouillette, 389 Ill.

App. 3d 595, 606, 906 N.E.2d 105, 115-16 (2009); Platson v. NSM, America, Inc., 322 Ill.

App. 3d 138, 144, 748 N.E.2d 1278, 1284 (2001) (setting forth prima facie elements of

negligent supervision). For sake of argument, when the adjective “illegal” is omitted from

plaintiff’s allegations, its absence has no effect on whether plaintiff adequately pleaded a

cause of action for negligent supervision.

¶ 42 JThree’s motion to dismiss pursuant to section 2-619(a)(9) does not properly assert an

affirmative matter. JThree’s memorandum selectively emphasized the definition of an

“affirmative matter” to read “a defense which negates conclusions of material fact contained

in the complaint” and asserts the burden is on plaintiff to “contradict” Sawyer’s deposition

testimony. JThree attempts to shift the burden of production of proving the “affirmative

matter” by presenting deposition testimony and asserts the court should determine the

legality of the turn based on the deposition testimony. This is a blatant attempt to contradict

plaintiff’s allegations, and is a guise for what JThree is really saying, “Plaintiff’s allegations

I was negligent are not true because the facts presented in Sawyer’s deposition prove I am

not.” It is JThree’s burden to prove the existence of an affirmative matter that completely

bars plaintiff’s cause of action and presenting evidence it seeks to contest plaintiff’s factual

allegation–with Sawyer’s deposition–is not an affirmative matter. The legality of the turn

relates to plaintiff’s essential allegation that JThree negligently supervised Sawyer and does

not completely bar or negate plaintiff’s claim. It does not demand the conclusion JThree is

or is not negligent or that JThree is protected from liability for its negligence. See Kalata v.

Anheuser-Busch Cos., 144 Ill. 2d 425, 434-35, 581 N.E.2d 656, 661 (1991) (ordinance

violation does not constitute per se negligence). Section 2-619(a)(9) is not a proper vehicle

to contest factual allegations; nor does it authorize a fact-based “mini-trial” on whether

plaintiff can support his allegations, as JThree implies. Such a fact-based motion is properly

treated under summary judgment.

¶ 43 Plaintiff should be permitted (if he so chooses) to amend his amended complaint on

count IV.

¶ 44 E. Jimmy John’s “Motion To Dismiss” Count II (Negligent Training)

and Count III (Negligent Supervision)

¶ 45 Jimmy John’s moved in its single-sentence motion to dismiss pursuant to section 2-

619(a)(9) of the Code. In its memorandum section, it argued for dismissal under section 2-

619(a)(9) on the grounds (1) it owed no duty to plaintiff to train or supervise Sawyer because

“it did not authorize or encourage its delivery drivers to ignore the rules of the road or

operate their vehicles in a negligent fashion,” and (2) based on the “undisputed evidence” of

Sawyer’s deposition testimony and Vaughan’s affidavit, an agency relationship did not exist

between it and Sawyer. Jimmy John’s memorandum relies on Vaughan’s affidavit and

Sawyer’s deposition testimony to assert (1) it did not assert control over JThree, JThree’s

employees, or Sawyer, and (2) Sawyer is JThree’s employee.

¶ 46 Jimmy John’s inclusion of an affidavit and deposition testimony in support of its

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“motion” is a red flag the “motion” merely contests plaintiff’s factual allegations and is not

in compliance with section 2-619 of the Code. Here, Jimmy John’s sought to use an

unopposed affidavit and deposition testimony to establish “undisputed” facts to show

plaintiff’s cause of action is defective. Rather than asserting an affirmative matter, Jimmy

John’s is misusing section 2-619(a)(9) to contest–with facts outside the pleadings–the

amended complaint’s factual allegations. The crux of Jimmy John’s “motion” asserts Sawyer

was not its employee, i.e., plaintiff’s allegations it is liable as Sawyer’s employer are not true.

Paragraph eight of the amended complaint does not distinguish which defendants have

control over whom and frustrates plaintiff’s claim of Jimmy John’s control over JThree and

Sawyer; however, it implies the franchisor is the entity asserting control over the franchisee.

In his brief on appeal, plaintiff asserts Jimmy John’s controlled Sawyer as evidenced by (1)

the fact Jimmy John’s auditors visit the franchise store on Iles Avenue “to grade the store and

have checklists they complete about the cleanliness of the store and appearance of the

employees,” and (2) Sawyer and other delivery drivers parked their delivery vehicles along

the curb (plaintiff speculates the vehicles were parked in the fire lane) outside the restaurant,

thus giving defendants knowledge about dangerous driving behavior. Plaintiff did not include

these factual allegations in his amended complaint although Sawyer’s deposition was taken

before it was filed. Ordinarily, “[t]he existence and scope of an agency relationship are

usually questions of fact to be decided by the trier of fact, unless the parties’ relationship is

so clear as to be undisputed.” Zahl, 365 Ill. App. 3d at 661, 850 N.E.2d at 312. This is not

a case where the agency relationship between Jimmy John’s and Sawyer is so clear as to be

undisputed. The question of Jimmy John’s control over Sawyer is a question appropriately

resolved either at trial or in a fact-based motion. See Howle, 2012 IL App (4th) 120207, ¶ 37,

978 N.E.2d 1132. Moreover, Jimmy John’s purported section 2-619(a)(9) “motion” admitted

the legal sufficiency of the complaint and accepted, for purposes of its motion, plaintiff’s

factual allegations about training and its control over franchisee employees. To attack

plaintiff’s complaint for failure to plead facts to bring the claim within a recognized cause

of action, Jimmy John’s should have brought a section 2-615 motion.

¶ 47 As discussed above, at this stage, plaintiff is not required to prove how Jimmy John’s

negligently instructed or trained its employees. Plaintiff has alleged sufficient facts, taken as

true, under general negligence principles to indicate Jimmy John’s owed a duty to plaintiff

to properly train its delivery driver employees in light of its 15-minute delivery policy.

¶ 48 As to the merits of count III (negligent supervision), we note plaintiff did not incorporate

its allegation of Sawyer’s driving maneuver contained in paragraph 38 of the amended

complaint against Jimmy John’s but only asserted it against JThree. In an action for negligent

supervision, plaintiff must allege the employer knew or should have known its employees

behaved in a “dangerous or otherwise incompetent manner.” (Internal quotation marks

omitted.) Doe, 389 Ill. App. 3d at 606, 906 N.E.2d at 115-16. Ordinarily, an occurrence on

the date of the accident is insufficient to show an employer knew or should have known of

a routine practice of the alleged dangerous behavior before the accident. See Van Horne v.

Muller, 185 Ill. 2d 299, 315, 705 N.E.2d 898, 906 (1998) (“The type of prior conduct by an

employee which will be sufficient to put an employer on notice that the employee is unfit for

a particular position will differ in every case.”). The allegation of Sawyer’s left turn on the

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day of the accident is the only factual allegation against Jimmy John’s about an employee’s

dangerous behavior. However, Jimmy John’s section 2-619(a)(9) “motion” admitted the legal

sufficiency of the complaint but did not assert it failed to properly state a claim for negligent

supervision.

¶ 49 As the grounds stated in its “motion” and set forth and argued in its memorandum and

on appeal are not proper grounds for dismissal under section 2-619(a)(9), the trial court erred

in granting Jimmy John’s motion to dismiss on count II and count III. Plaintiff should be

permitted (if he so chooses) to amend his amended complaint on count II and count III.

¶ 50 F. A Note on Defendants’ Motions

¶ 51 At oral argument the parties suggested section 2-615 and section 2-619 motions are

similar to a motion for summary judgment pursuant to section 2-1005 of the Code (735 ILCS

5/2-1005 (West 2010)), and both parties used sections 2-615(a) and 2-619(a)(9) to argue

factual issues outside the amended complaint. We reiterate section 2-615(a) and section 2-

619(a)(9) are not proper vehicles to contest factual allegations contained in the complaint.

The Code and meticulous motion practice demands preservation of the distinctions between

sections 2-615, 2-619, and 2-1005.

¶ 52 A crucial distinction between a section 2-615(a) motion and a summary judgment motion

lies in what each motion assumes from the trial court: a section 2-615(a) motion accepts all

well-pleaded facts while questioning whether the pleadings sufficiently state a cause of

action; in contrast a motion for summary judgment challenges the facts and “ ‘ “assumes that

a cause of action has been stated.” ’ ” Mydlach v. DaimlerChrysler Corp., 226 Ill. 2d 307,

315, 875 N.E.2d 1047, 1055 (2007) (quoting Delgatto v. Brandon Associates, Ltd., 131 Ill.

2d 183, 190, 545 N.E.2d 689, 692 (1989), quoting Janes, 57 Ill. 2d at 406, 312 N.E.2d at

609). Another distinction is a section 2-615 motion considers only the facts on the face of

the pleadings while a section 2-1005 summary judgment motion goes beyond the pleadings

to determine if the case presents an issue of fact. See 4 Richard A. Michael, Illinois Practice

§ 38:3, at 308-12 (2d ed. 2011) (discussing relationship of summary judgment motion to

other dispositive motions); see also Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217,

227, 930 N.E.2d 895, 901 (2010) (describing a motion for judgment on the pleadings (735

ILCS 5/2-615(e) (West 2010)) as “ ‘like a motion for summary judgment limited to the

pleadings’ ” (internal quotation marks omitted) (quoting Employers Insurance of Wausau v.

Ehlco Liquidating Trust, 186 Ill. 2d 127, 138, 708 N.E.2d 1122, 1129 (1999), quoting 3

Richard A. Michael, Illinois Practice § 27.2, at 494 (1989)).

¶ 53 A section 2-619(a)(9) motion shares procedural similarities with a summary judgment

motion in that affidavits and other evidentiary matter is permitted to support the affirmative

matter, and a shifting burden of proof upon satisfaction of the defendant’s burden of

producing an affirmative matter that completely bars the plaintiff’s cause of action. A section

2-619(a)(9) motion is not a substitute for a summary judgment motion. Malanowski, 293 Ill.

App. 3d at 724, 688 N.E.2d at 735. A section 2-619(a)(9) motion to dismiss is the proper

vehicle to assert “Plaintiff’s complaint states a legally sufficient claim, but an affirmative

matter defeats plaintiff’s claim.” See Winters, 386 Ill. App. 3d at 792, 898 N.E.2d at 779.

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Section 2-619(a)(9) does not authorize motions asserting plaintiff’s essential allegations are

“not true”–the motion accepts all well-pleaded facts as true–and is not a shortcut to resolve

factual issues about the veracity of plaintiff’s essential allegations. When the defendant

submits a “Not true” motion, defendant’s burden of production has not been met–there is no

affirmative matter–and the burden does not shift to the plaintiff to refute the defendant’s

factual allegations contained in the motion. See Smith, 231 Ill. 2d at 121-22, 896 N.E.2d at

238-39 (plaintiff’s failure to respond to affidavit is not fatal because the affidavit, which

attempted to negate the essential allegations of the plaintiff’s claim, does not constitute an

affirmative matter); Van Meter, 207 Ill. 2d at 379-80, 799 N.E.2d at 285-86 (municipal

defendants failed to met their burden of establishing their affirmative defense of immunity).

Section 2-619(a)(9) permits resolution of “easily proved issues of fact” about the affirmative

matter, and evidentiary material submitted in support of the motion must go to the

affirmative matter. Where the defendant uses the material to support its version of the facts,

point out the factual deficiencies in plaintiff’s case, or allege plaintiff cannot prove his case,

it is apparent the defendant is merely challenging the truthfulness of the plaintiff’s factual

allegations and a fact-based motion such as a section 2-1005 motion should be used. If the

defendant improperly submits a motion pursuant to section 2-619 that argues the plaintiff

cannot prove his case, and the plaintiff is not prejudiced by the defendant’s misdesignation,

the motion may be treated as a summary judgment motion. Malanowski, 293 Ill. App. 3d at

724, 688 N.E.2d at 735; Howle, 2012 IL App (4th) 120207, ¶ 39, 978 N.E.2d 1132; see also

Willett v. Cessna Aircraft Co., 366 Ill. App. 3d 360, 368-69, 851 N.E.2d 626, 633-34 (2006)

(discussing use of supporting affidavits for summary judgment motions).

¶ 54 G. Plaintiff’s Other Counts

¶ 55 Where an appeal is from dismissal of multiple counts of the complaint but the appellant

only argues certain counts in the brief on appeal, the other counts are not considered as they

are deemed forfeited pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008).

See Sellers v. Rudert, 395 Ill. App. 3d 1041, 1046, 918 N.E.2d 586, 591 (2009) (appellant

forfeits points not raised in initial brief). As plaintiff did not argue error in the trial court’s

dismissal of count V (implied authority), count VI (joint venture), or count VII (apparent

authority), he has abandoned those counts on appeal and forfeited them for purposes of

remand.

¶ 56 III. CONCLUSION

¶ 57 We reverse the trial court’s dismissal of plaintiff’s amended complaint as to counts I, II,

III, and IV, affirm dismissal of all other counts due to plaintiff’s failure to argue them in this

appeal, and remand for further proceedings.

¶ 58 Affirmed in part and reversed in part; cause remanded.

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¶ 59 JUSTICE TURNER, dissenting.

¶ 60 I respectfully dissent and would affirm the trial court’s judgment in toto.

¶ 61 Here, the trial court dismissed plaintiff’s original complaint but granted leave to file an

amended complaint based on a theory of direct liability. According to Jimmy John’s, the

court allowed plaintiff to take the deposition of Jake Sawyer to determine whether there were

any facts upon which he could state direct liability claims. Plaintiff does not dispute Jimmy

John’s assertion, and page one of Sawyer’s deposition states, “Discovery deposition of Jake

Sawyer taken at the instance of the Plaintiff.”

¶ 62 Following Sawyer’s deposition, plaintiff filed an amended complaint asserting the direct

liability counts which are the subject of this appeal. Paragraph 22 of count I of the amended

complaint alleges “Jake Sawyer was given a manual to ‘review’ for twenty (20) minutes

when he was first hired as a delivery driver for Defendants. There was no information

reviewed on how to make proper and safe deliveries of sandwiches, and the only areas of the

manual committed to memory by Jake Sawyer were the provisions as to how to

dress/uniform requirements for Defendants and safety rules as to use of knives at the stores

of the Defendants.” This paragraph was incorporated into each count at issue in this appeal,

and it is indisputable the facts plaintiff alleged were plucked from Sawyer’s discovery

deposition.

¶ 63 All defendants filed motions to dismiss and cited the transcript of Sawyer’s deposition,

which was filed with the trial court. Jimmy John’s also attached to its motion to dismiss an

affidavit of Jeff Vaughan, the chief financial officer of Jimmy John’s Franchise, LLC. The

record does not reflect plaintiff objected to the court’s consideration of Sawyer’s discovery

deposition or to the consideration of Vaughan’s affidavit in ruling on the motions.

¶ 64 As noted by the majority, Jimmy John’s motion was filed pursuant to section 2-619(a)

of the Code and JThree’s motion was filed in part pursuant to section 2-619(a) of the Code.

¶ 65 “The purpose of a motion to dismiss under section 2-619 *** is to afford litigants a

means to dispose of issues of law and easily proved issues of fact at the outset of a case ***.”

Zedella v. Gibson, 165 Ill. 2d 181, 185, 650 N.E.2d 1000, 1002 (1995). “Section 2-619(a)(9)

allows dismissal when ‘the claim asserted *** is barred by other affirmative matter avoiding

the legal effect of or defeating the claim.’ ” Zedella, 165 Ill. 2d at 185, 650 N.E.2d at 1002

(quoting Ill. Rev. Stat. 1991, ch. 110, ¶ 2-619(a)(9)). “In ruling on a motion to dismiss under

section 2-619, the trial court may consider pleadings, depositions, and affidavits. [Citation.]

When supporting affidavits have not been challenged or contradicted by counter-affidavits

or other appropriate means, the facts stated therein are deemed admitted.” Zedella, 165 Ill.

2d at 185, 650 N.E.2d at 1002.

¶ 66 As the majority concedes, plaintiff, pursuant to paragraph 19 of the amended complaint,

has alleged and must prove defendants had a policy of delivering sandwiches within 15

minutes of ordering. Supra ¶ 9. When considering the deposition and affidavit submitted

with the motions to dismiss, the trial court correctly concluded plaintiff’s cause of action was

completely negated. Plaintiff simply cannot prove the existence of a 15-minute policy or that

Sawyer, due to a perceived 15-minute company policy, was attempting a “freaky fast”

delivery when the accident occurred. Thus, even assuming arguendo defendants had a duty

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to train or supervise, plaintiff’s amended complaint should be dismissed.

¶ 67 I agree with the majority that the bar and trial courts should be attentive to rules and

labels governing motion practice. However, I do not equate what happened here to be a

slipshod practice. Supra ¶ 22. Plaintiff was afforded the opportunity to depose Sawyer to

discover facts that would allow him to properly plead a cause of action. Indeed, the trial court

was invited to consider the deposition testimony and heard no objection to consideration of

the affidavit.

¶ 68 The majority notes section 2-619(a)(9) is an inappropriate vehicle to contest factual

allegations (supra ¶ 42) and states Jimmy John’s use of an affidavit and deposition testimony

in support of its motion is improper (supra ¶ 46). The majority concludes that where the

defendant seeks to attack the factual sufficiency of the claim because there is no genuine

issue of material fact, the defendant should move for summary judgment pursuant to section

2-1005 of the Code. Supra ¶ 34. I would add that “[a]lthough a section 2-619(a)(9) motion

may not be used as a substitute for a summary judgment motion ***[,] they are similar in that

a fact motion under section 2-619 essentially amounts to a summary judgment procedure.”

Malanowski v. Jabamoni, 293 Ill. App. 3d 720, 724, 688 N.E.2d 732, 735 (1997). While the

deposition and affidavit here may not be typical “other affirmative matter,” the parties invited

the trial court to consider them as such. Accordingly, in the interest of judicial economy, I

would follow the Howle precedent where this court opted to address an argument incorrectly

raised in a section 2-619(a)(9) motion to dismiss as a section 2-1005 motion for summary

judgment. Howle, 2012 IL App (4th) 120207, ¶ 39, 978 N.E.2d 1132. In similarly opting, I

would find plaintiff’s action must necessarily fail against Jimmy John’s. Moreover, based

on the facts already known by the parties and the trial court, the same result should apply to

JThree even though it, in part, sought dismissal using section 2-615. See Economy Fire &

Casualty Co. v. Brumfield, 384 Ill. App. 3d 726, 730, 894 N.E.2d 421, 425 (2008) (noting

we may affirm the trial court’s judgment on any basis supported by the record); see also

Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161, 920 N.E.2d 220, 223

(2009) (noting a cause of action should not be dismissed pursuant to section 2-615 unless it

is clearly apparent no set of facts can be proved entitling the plaintiff to relief).

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