# Barber-Colman Co. v. A & K Midwest Insulation Co.

> Appellate Court of Illinois · November 13, 1992 · 236 Ill. App. 3d 1065

URL: https://www.frixlaw.com/law-library/cases/7025585

## Case

- **Full name:** BARBER-COLMAN COMPANY v. A AND K MIDWEST INSULATION COMPANY, a/k/a Midwest Insulation
- **Court:** Appellate Court of Illinois
- **Decided:** November 13, 1992
- **Citations:** 236 Ill. App. 3d 1065; 177 Ill. Dec. 841; 603 N.E.2d 1215; 1992 Ill. App. LEXIS 1826
- **Precedential status:** Published
- **Opinion:** Concurrence by Goldenhersh
- **Judges:** Chapman, Goldenhersh
- **Cited by:** 97 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

PRESIDING JUSTICE GOLDENHERSH, specially concurring:
I specially concur with the majority’s conclusion in this case with the following reservations.
The language of the complaint quoted in the majority opinion states, “ ‘This suit was not filed after the expiration of one (1) year following the date on which the principal ceased work on the Contract ***.’ ” (236 Ill. App. 3d at 1067-68.) As this appeared on the face of the complaint and was controverted, I have some question as to whether, in fact, the Pumala standard (Pumala v. Sipos (1985), 131 Ill. App. 3d 845 , 476 N.E.2d 462 ) may not have been met.
More importantly, I think the distinction between the treatment of jury cases and nonjury cases under section 2 — 619 (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619) bears more emphasis. As noted in the majority opinion in its quotation from 4 Illinois Practice §38.3, at 224, “Motions to dismiss under section 2 — 619 *** ‘(4) *** allow a determination of the motion on the merits even if there is a genuine issue of material fact raised by the affirmative matter as long as the party opposing the motion has not filed a jury demand ***.’ ” (Emphasis added.) (236 Ill. App. 3d at 1072.) The Pumala case is apparently a jury cause, a medical malpractice action, and on the basis of the record before us, it appears that the instant case is nonjury. A restricted view of the appropriate scope of a section 2 — 619 motion in a jury case such as Pumala is certainly appropriate, whereas the more expansive view of the majority opinion is appropriate in a nonjury cause. As the Historical and Practice Notes for section 2 — 619 indicated:
“The purpose of this section is primarily that of affording a means of obtaining at the outset of a case a summary disposition of issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed questions of fact.” (Ill. Ann. Stat., ch. 110, par. 2 — 619, Historical & Practice Notes, at 662 (Smith-Hurd 1983).)
The Historical Notes also refer to North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406 , 349 N.E.2d 664 , concerning the different approaches a court should take in dealing with jury or nonjury cases when a motion is filed trader the predecessor of this section.
As indicated by the majority and Professor Michael, it is certainly appropriate that a trial court attempt to dispose of those issues which may be determined under section 2 — 619 prior to trial. It must be emphasized, however, that when a case before the trial court contains a jury demand, the position of the trial court as a determiner of an issue of fact involved in a section 2 — 619 motion is much more severely limited than when the cause of action involves a bench trial. As the Historical Notes and Professor Michael both note, any dispute other than the most easily and conclusively resolved issue of fact should proceed to jury trial.
While I would not disavow the ruling in Pumala since it was a jury case, I concur in the general result reached by the majority and its fair and equitable determination for action on remand of this particular cause.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7025585. Public record. Not legal advice.