In re Estate of Lasley

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Appellate Court Date: 2016.02.01 14:26:49

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In re Estate of Lasley, 2015 IL App (4th) 140690

Appellate Court In re: the Estate of OWEN THOMAS LASLEY, Deceased, OWEN

Caption FONTAINE LASLEY, Petitioner-Appellant, v. KEVIN

McDERMOTT, Administrator of the Estate of Owen T. Lasley;

MAREAN M. LASLEY; INDA C. BLAKLEY; and THOMAS T.

LASLEY, Respondents-Appellees.

District & No. Fourth District

Docket No. 4-14-0690

Filed July 8, 2015

Decision Under Appeal from the Circuit Court of Sangamon County, No. 13-P-90; the

Review Hon. John P. Schmidt, Judge, presiding.

Judgment Reversed; remanded with directions.

Counsel on Edwin J. Anderson, L. James Hanson (argued), and Daniel M. Bronke,

Appeal all of L. James Hanson, Attorney at Law, of Mt. Vernon, for appellant.

Donald A. LoBue (argued), of Springfield, for appellees.

Panel PRESIDING JUSTICE POPE delivered the judgment of the court,

with opinion.

Justices Knecht and Steigmann concurred in the judgment and

opinion.

OPINION

¶1 On March 21, 2014, the trial court dismissed petitioner Owen Fontaine Lasley’s (Fontaine)

combined complaint for declaratory judgment pursuant to section 2-619 of the Code of Civil

Procedure (Code) (735 ILCS 5/2-619 (West 2012)) and stated its dismissal was a final order

for purposes of appeal with no just cause to delay its enforcement. On July 2, 2014, the court

denied Fontaine’s motion to reconsider. Fontaine appeals, arguing the court erred in granting

respondents’ motion to strike and dismiss his combined complaint. We reverse and remand for

further proceedings.

¶2 I. BACKGROUND

¶3 On February 20, 2013, Inda C. Blakley (Inda) filed a petition for probate and letters of

administration after the death of Owen Thomas Lasley (decedent) on January 28, 2013.

Decedent died without a will. Listed as heirs to decedent’s estate were Fontaine, Inda, Marean

M. Lasley (Marean), and Thomas T. Lasley (Timmy). Inda also filed an affidavit of heirship

with regard to the above-named heirs. The named heirs consented to Kevin N. McDermott as

special administrator for the estate. On May 13, 2013, the trial court appointed McDermott as

special administrator for the estate.

¶4 On November 26, 2013, Fontaine filed a combined complaint for declaratory judgment and

motion to vacate order of heirship. According to the complaint, Fontaine is decedent’s sole

heir. The complaint alleged decedent told other family members, including Gerald Lasley,

Velma Alexander, and Johngylene Stewart, that Fontaine was his only child and that he was

not the father of Marean, Inda, and Timmy. Fontaine attached affidavits from Gerald Lasley,

Velma Alexander, and Johngylene Stewart to his complaint. Gerald Lasley’s affidavit stated in

pertinent part:

“4. That [decedent] specifically told me that [Fontaine] was his only naturally born

child of his first marriage to Wilma Ladoris Killion Lasley.

5. That [decedent] specifically told Timmy Lasley’s wife that [decedent] was not

Timmy Lasley’s father.”

Velma Alexander’s affidavit stated in pertinent part:

“4. That I personally heard [decedent] state that of the four children born to his first

wife, Wilma Ladoris Kidd Lasley, during their marriage, only [Fontaine] was his

natural born child.

5. That I personally heard [decedent] state that Marean Lasley, Inda Blakely, and

Timmy Lasley were not his children.”

Johngylene Stewart’s affidavit stated in pertinent part:

“3. That on an occasion approximately 15 years before his death, I heard [decedent]

state that he was going to tell Marean Lasley, Inda Blakely, and Timmy Lasley that he

was not their father and that he knew that [Fontaine] was his only natural born child.

4. That when Marean Lasley was a young man, I heard him state that he knew that

[decedent] was not his real father.”

¶5 Fontaine also filed a motion to determine heirship by deoxyribonucleic acid (DNA) testing

pursuant to Illinois Supreme Court Rule 215 (eff. Mar. 28, 2011). According to the motion,

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“DNA testing provides a means to establish with certainty the relationship of the individuals in

question and ascertain that [decedent] was not the father of Marean Lasley, Inda C. Blakley,

and [Timmy] Lasley.”

¶6 On February 13, 2014, Inda, Marean, and Timmy filed a motion in opposition to Fontaine’s

motion to determine heirship by DNA testing. They argued Fontaine had to show good cause

for a court to order DNA testing. According to respondents, “Proper DNA testing would

require the body of [decedent] to be exhumed.” In addition, respondents argued the affidavits

of Gerald Lasley, Velma Alexander, and Johngylene Stewart were defective and should be

stricken under Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013). According to

respondents, Fontaine had failed to provide persuasive and credible evidence DNA testing

would result in their disinheritance.

¶7 Respondents also filed a motion to strike and dismiss Fontaine’s combined complaint for

declaratory judgment and motion to vacate order of heirship. The first part of the motion was

based on section 2-615 of the Code (735 ILCS 5/2-615 (West 2012)). The second part of the

motion was based on section 2-619 of the Code (735 ILCS 5/2-619 (West 2012)) and simply

repeated the allegations from the section 2-615 portion of the motion. No subparts of section

2-619 were identified as applicable to the motion.

¶8 On March 21, 2014, the trial court dismissed Fontaine’s combined complaint for

declaratory judgment and motion to vacate order of heirship. The court’s docket entry states:

“[Respondents’] Inda C. Lasley, Marean M. Lasley, and [Timmy] Lasley Motion to

Dismiss pursuant to 735 ILCS 5/2-619 [(West 2012)] the [petitioner’s] Combined

Complaint for Declaratory Judgment and Motion to Vacate Order of Heirship and

[petitioner’s] Motion for DNA testing is ALLOWED. The [petitioner’s] affidavits in

support of his motion violate Illinois Supreme Court Rule 191[(a) (eff. Jan. 4, 2013)]

and the Dead[-]Man’s Act as incorporated by 735 ILCS 5/8-201 [(West 2012)] as they

claim to relate conversations with the deceased as to whether or not he was or was not

the biological father of the [respondents]. Moreover, Inda C. Lasley, Marean C. Lasley,

and [Timmy] Lasley were born during the marriage of the deceased and Wilma L.

Lasley. There is a statutory presumption that they are the legitimate children of the

deceased. The [petitioner’s] affidavits in support of his Petition fail to present the

necessary competent evidence to disturb this presumption. [Respondents’] Motion to

Dismiss pursuant to 735 ILCS 5/2-619 [(West 2012)] is allowed. This is a final and

appealable order with no just cause to delay its enforcement.”

¶9 On April 17, 2014, Fontaine filed a motion to reconsider the trial court’s order granting the

motion to dismiss. On July 2, 2014, the court denied Fontaine’s motion to reconsider. The

court found the motion as to DNA testing was moot.

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 A. Hybrid Motion

¶ 13 Fontaine first argues the trial court erred in granting the motion to dismiss because it was

an improper hybrid motion combining claims under sections 2-615 and 2-619 of the Code (735

ILCS 5/2-615, 2-619 (West 2012)). According to Fontaine, “Because the Motion to Dismiss

was an improper hybrid motion, it was error for the circuit court to address the motion.”

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However, Fontaine fails to provide this court with any analysis as to why respondents’ motion

to dismiss was an improper hybrid motion.

¶ 14 Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013) states an appellant’s brief shall

contain the following:

“Argument, which shall contain the contentions of the appellant and the reasons

therefor, with citation of the authorities and the pages of the record relied on. Evidence

shall not be copied at length, but references shall be made to the pages of the record on

appeal or abstract, if any, where evidence may be found. Citation of numerous

authorities in support of the same point is not favored. Points not argued are waived and

shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”

This court has often stated it is not a depository upon which an appellant may foist his burden

of argument and research. Campbell v. Wagner, 303 Ill. App. 3d 609, 613, 708 N.E.2d 539,

543 (1999). However, we note forfeiture is a limitation on the parties and not the court. People

v. Tomczak, 395 Ill. App. 3d 877, 879, 921 N.E.2d 736, 737 (2009).

¶ 15 In this case, respondents’ combined motion to dismiss was defective. It did not set forth

any particular subsection of section 2-619 in support of the motion. Further, respondents

merely parroted their section 2-615 motion to dismiss. The trial court was entitled to have

respondents specify the basis for their motion to dismiss. See Reynolds v. Jimmy John’s

Enterprises, LLC, 2013 IL App (4th) 120139, ¶¶ 20-22, 998 N.E.2d 984.

¶ 16 B. Dismissal Pursuant to Section 2-619

¶ 17 We first note it is difficult to determine from the trial court’s March 21, 2014, docket entry

in this case whether the court even made a ruling with regard to Fontaine’s request to require

DNA testing. However, the court’s docket entry ruling on Fontaine’s motion to reconsider

clearly states the court found Fontaine’s motion for DNA testing moot once it dismissed the

complaint.

¶ 18 This court also notes it is not aware of any authority to support the filing of a “combined

complaint.” A complaint sets forth the parameters of a lawsuit and should not be combined

with motions. The filing of a “combined complaint” would have supported dismissal without

prejudice in and of itself. However, respondents did not move for dismissal on this basis.

¶ 19 The trial court would have been justified in denying respondents’ motion to dismiss for the

reasons stated above. More important, the trial court erred in granting the motion to dismiss

pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2012)). As noted above, the

record does not disclose the subsection of section 2-619 on which the court based its dismissal.

However, the only subsection that arguably makes sense in the context of this case is section

2-619(a)(9), which states:

“(a) Defendant may, within the time for pleading, file a motion for dismissal of the

action or for other appropriate relief upon any of the following grounds. If the grounds

do not appear on the face of the pleading attacked the motion shall be supported by

affidavit:

***

(9) That 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

2012).

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Our supreme court has stated 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.” (Emphasis in original.) Reynolds, 2013 IL App (4th) 120139,

¶ 30, 988 N.E.2d 984 (citing Van Meter v. Darien Park District, 207 Ill. 2d 359, 367, 799

N.E.2d 273, 278 (2003)).

¶ 20 A motion pursuant to section 2-619(a)(9) of the Code admits (1) the legal sufficiency of the

complaint and (2) all well-pleaded facts and reasonable inferences therefrom. Id. ¶ 31, 988

N.E.2d 984. However, a section 2-619(a)(9) motion should assert “an affirmative matter

outside the complaint bars or defeats the cause of action.” Id. When ruling on a section

2-619(a)(9) motion to dismiss, a court must (1) construe the pleadings in a light most favorable

to the nonmoving party and (2) only dismiss the claim if the nonmoving party can prove no set

of facts supporting the alleged cause of action. Id. We review the dismissal of a claim pursuant

to section 2-619(a)(9) de novo. Id.

¶ 21 Our supreme court has defined “affirmative matter” as follows:

“ ‘Affirmative matter’ means some kind of defense ‘other than a negation of the

essential allegations of the plaintiff’s cause of action.’ [Citation.] The standard

articulation of ‘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.’ 4 R. Michael, Illinois Practice § 41.7, at 332 (1989).

In fact, a defendant moving for dismissal under section 2-619(a)(9) otherwise admits

the legal sufficiency of the plaintiff’s cause of action.” Smith v. Waukegan Park

District, 231 Ill. 2d 111, 120-21, 896 N.E.2d 232, 238 (2008).

As this court has stated:

“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. [Citations.]

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

to contest an ultimate fact stated in the complaint.” ’ [Citations.] 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[ v.

Aqua Illinois, Inc.], 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 upon which defendant expects to contest an ultimate fact stated in

the complaint, section 2-619(a)(9) should not be used.” ’ [Citations.]). *** [S]ection

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.” Reynolds, 2013 IL App (4th) 120139, ¶¶ 33-34, 988 N.E.2d 984.

¶ 22 Further, this court has stated “[w]here 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.” Reynolds, 2013 IL App (4th) 120139, ¶ 34, 988 N.E.2d 984. In this case, the motion

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to dismiss sought to challenge Fontaine’s factual allegation Inda, Marean, and Timmy were not

the decedent’s biological children. These arguments would be more appropriately addressed in

a motion for summary judgment.

¶ 23 From the trial court’s March 21, 2014, docket entry, it is clear the court focused on the

factual allegations in the case. The court noted “The [petitioner’s] affidavits in support of his

motion violate Illinois Supreme Court Rule 191[(a) (eff. Jan. 4, 2013)] and the Dead[-]Man’s

Act as incorporated by 735 ILCS 5/8-201 [(West 2012)] as they claim to relate to

conversations with the deceased as to whether or not he was or was not the biological father of

the [respondents].” Regardless of the affidavits petitioner attached to his complaint, Fontaine

clearly alleged decedent was not the biological or adoptive father of Inda, Marean, or Timmy.

For purposes of a motion to dismiss, these allegations must be taken as true.

¶ 24 The trial court also correctly stated in the previously noted docket entry that Inda, Marean,

and Timmy were born during the marriage of decedent and Wilma Lasley and these three

individuals were statutorily presumed to be decedent’s legitimate children. The court then

stated Fontaine’s “affidavits in support of his Petition fail to present the necessary competent

evidence to disturb this presumption.” However, as we stated earlier, for purposes of a motion

to dismiss, the properly pleaded allegations in a complaint must be taken as true. As previously

noted, regardless of the affidavits attached to Fontaine’s complaint, he alleged in his complaint

Inda, Marean, and Timmy were neither the biological nor adopted children of the decedent. As

a result, we hold the trial court erred in dismissing Fontaine’s complaint prematurely.

¶ 25 As the trial court did not rule on Fontaine’s request for DNA testing because it found it

moot, we do not address this issue on appeal other than to direct the court and parties to this

court’s opinion in Jarke v. Mondry, 2011 IL App (4th) 110150, 958 N.E.2d 730. This reversal

should not be seen as any indication of the merits of Fontaine’s complaint or whether the

motion for DNA testing should be allowed.

¶ 26 III. CONCLUSION

¶ 27 For the reasons stated above, we reverse the trial court’s dismissal of Fontaine’s complaint

and remand for further proceedings consistent with this opinion.

¶ 28 Reversed; remanded with directions.

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