text:
    MADIGAN BROTHERS, INC., Plaintiff-Appellant and Cross-Appellee, v. MELROSE SHOPPING CENTER COMPANY et al., Defendants-Appellees and Cross-Appellants.
    First District (6th Division)
    No. 1—89—1616
    Opinion filed May 18, 1990.

      Fischel & Kahn, and Gary L. Prior, of McDermott, Will & Emery, both of Chicago (David L. Weinstein and David B. Bayless, of counsel), for appellant.
    John Lally, of Chicago, for appellee Melrose Shopping Center Company.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Madigan Brothers, Inc., sued for breach of contract when the roof collapsed from water damage at the premises leased from defendant, Winston Plaza Associates. Following a trial without a jury, the court awarded $2,610 in damages. Plaintiff appeals, contending that the lease’s exculpatory provisions were without effect pursuant to section 1 of “An Act making void and unenforceable certain agreements ***” (Ill. Rev. Stat. 1981, ch. 80, par. 91), and that it is entitled to certain consequential damages. On cross-appeal, defendant contends that the trial court erred in awarding any damages to plaintiff for destroyed merchandise because the lease provides that plaintiff bore that risk.

This appeal is part of numerous related actions which have spanned a decade. The present suit is limited to damages for a January 1982 collapse of a portion of a roof in plaintiff’s store.

In 1960, plaintiff entered into a lease agreement for department store premises in a shopping center owned by defendant’s predecessor in interest. Sometime prior to 1973, defendant took over as landlord under that lease. In 1973, the premises were expanded to include plaintiff’s Junior Store.

In January 1982, after repeated problems with a leaking roof and unsuccessful attempts to repair the roof, the roof failed, causing plaintiff to shut its Junior Store temporarily. After 54 days, plaintiff reopened the store.

Trial began on March 2, 1989. In addition to plaintiff, its insurer, American Protective Insurance Company, was a plaintiff, but is not a party to this appeal. It had previously been permitted to intervene to recover the $158,000 it had paid plaintiff under a business interruption policy. In addition to defendant, Melrose Shopping Center Company was a defendant at trial, but is not a party to this appeal. Melrose filed a cross-claim against defendant for indemnity. Defendant filed a cross-claim against Melrose for contribution.

At trial, Joseph Madigan, plaintiff’s president, testified for plaintiff. He related facts regarding the leakage, the damage, and the repair of that damage. He testified regarding the markdown of goods moved from the Junior Store to other locations. He also testified regarding replacement of the carpeting in the store.

George S. Iny, plaintiff’s chief financial officer and vice-president, testified for plaintiff that $2,610 worth of goods were ruined. Other goods were shipped to a receiving center and then to its other stores. Some of the goods were marked down before being sold. Iny also testified regarding the replaced carpeting. Iny stated that the store’s reopening costs included banners pulled by an airplane, a disc jockey at the store, balloons, and dancing girls for a total cost of $13,840. Iny said that in the first two months after opening, plaintiff made $160,000 more in profits than it had during the same two months the year prior to and after 1982. He explained that the extra profits were due to successful advertising for the reopening.

Iny also testified regarding plaintiff’s claim of $135,000 for lost income. He explained this was the “gross margin that we would have experienced had we made our planned sales at that store.” Iny denied that any remodeling had been done prior to reopening, but stated that plaintiff spent four times the amount needed to repair the damage, although it only sought the amount needed for repairs.

Defendants offered no witnesses, and all four parties rested.

The court then commented that it would be necessary later to resolve several issues, including the applicability of the statute voiding exculpatory provisions in leases, and the scope of consequential damages under the lease, including the proper measure of damage for the damaged carpeting.

Following all closing arguments, the court made several preliminary rulings, disposing of all issues except those between plaintiff Madigan and defendant Winston. The court sua sponte dismissed American Protective Insurance as a plaintiff. As to Melrose, the court found in its favor and against plaintiff because Melrose was no longer the landlord in January 1982. For the same reason, the court dismissed the cross-claim of defendant against Melrose.

In its written decision, the court found section 1 (Ill. Rev. Stat. 1981, ch. 80, par. 91), voiding exculpatory provisions in leases, not applicable because the lease in effect in 1982 was an extension of the original 1960 lease. The court awarded no damages for lost profits because the lease did not contemplate recovery of lost profits, and because plaintiff failed to present reliable evidence of net lost profits or lost earnings from other stores. The court awarded no damages for salaries expended because such damages were not contemplated under the lease. The court awarded plaintiff $2,610 for destroyed merchandise because it was “the kind of damage that necessarily and directly results from the landlord’s failure to perform his covenant to repair and maintain.” The court found damages for the ruined carpet were recoverable under the lease, but found that plaintiff offered no reasonable basis for the award where it failed to present evidence of the carpet’s original value or value just prior to being destroyed. The court found coverings and containers were recoverable items, but no evidence of value at the time of damage had been offered. No damages were awarded for accounting services or photographer’s costs because they were not the kind of consequential damages within the contemplation of the parties to the lease. Preopening expenses were not awarded because they were not contemplated under the lease, and because no real loss was incurred where profits were substantially higher following reopening.

We first address plaintiff’s contention that the lease’s exculpatory provisions do not apply because the legislature has declared such provisions void. The relevant statute became effective in 1971 and states that real property lease agreements “exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor *** in the operation or maintenance of *** the real property *** shall be deemed to be void as against public policy and wholly unenforceable.” Ill. Rev. Stat. 1981, ch. 80, par. 91.

The statute specifically refers to exculpatory lease provisions which relieve the landlord of liability from its own “negligence.” (Ill. Rev. Stat. 1981, ch. 80, par. 91.) The present suit is for breach of contract. Plaintiff admits that it does not allege, and has not proved, negligence on the part of defendant. Thus, the statute would not apply here. See Zion Industries, Inc. v. Loy (1977), 46 Ill. App. 3d 902, 361 N.E.2d 605 (statute not applicable because suit for damage caused by roof failure was based on lease and not on negligence and because lease predates statute).

Plaintiff argues that the statute implies that it covers the landlord’s attempt to avoid liability “based on wrongdoing” generally, either by the landlord’s breach of contract or negligence. At common law, a lease exculpating a landlord from liability for damage to a tenant’s property was valid and enforceable. (J.B. Stein & Co. v. Sandberg (1981), 95 Ill. App. 3d 19, 419 N.E.2d 652.) The statute, however, forbids the inclusion of such exculpatory clauses in leases, and therefore it is in derogation of the common law and should be strictly construed. (McMinn v. Cavanaugh (1988), 177 Ill. App. 3d 353, 532 N.E.2d 343.) The court will not presume that the legislature intended an innovation further than that which the statute specified or clearly implied. (Lites v. Jackson (1979), 70 Ill. App. 3d 374, 387 N.E.2d 1118.) We hold that the statutory language limits its effect to negligence actions. (See Zion Industries, Inc. v. Loy, 46 Ill. App. 3d 902, 361 N.E.2d 605.) Thus, the trial court properly gave effect to the exculpatory provisions.

In view of our holding that we can give effect to the exculpatory provisions because this is not a negligence action, we do not have to consider the issue of whether the 1973 agreement is merely an extension of the 1960 lease or whether it is a new lease.

Having found that we can give effect to the exculpatory provisions, we go on to look at the language of those provisions.

Article IX, section 3, provides that the “Tenant agrees to use and occupy the demised premises *** at its own risk; and that Landlord shall have no responsibility or liability for any loss of or damage to fixtures or other personal property of Tenant.” (Emphasis added.)

Article X, section 2, provides that “It is understood and agreed that Tenant assumes all risk of damage to its own property arising from any cause whatsoever ***.”

Thus, any damages for “fixtures or other personal property,” fall within the exculpatory provisions and the tenant bears the risk.

Because the lease specifically repudiates the landlord’s liability for damage to fixtures or personal property, the claim for damages to destroyed merchandise must be disallowed, and the trial court erred in awarding plaintiff $2,610 for such damages.

In regard to damages for things other than “fixtures or other personal property,” we are not concerned with the exculpatory clauses. Thus, as to the consequential damages, e.g., salaries expended, lost profits, lost earnings at other stores, and preopening expenses, we are governed by general rules for construction of leases. Under those rules, we agree with the trial court that the consequential damages sought by plaintiff either were not within the contemplation of the parties to the lease, or that plaintiff offered insufficient evidence to permit the court to award such damages.

The lease clearly states that the landlord has a duty to repair. Article VIII, section 1, of the lease requires the landlord to “make all repairs and replacements *** to all exterior portions of the leased premises,” and to “make all structural repairs (whether exterior or interior) of the leased premises, *** including *** [the] roof.” That section ends with a dangling phrase, with no apparent antecedent, reading: “in a safe, dry and tenantable condition and in good order and repair.” The trial court found, and the parties apparently agreed, that this was an obvious drafting error. Where there is an ambiguity in a lease, the court may refer to parol evidence. (McGinnis v. LaShelle (1988), 166 Ill. App. 3d 131, 519 N.E.2d 699.) The parties, however, submitted no parol evidence. Thus, the court properly looked at the whole of section 1 and reasonably construed it to mean that defendant has the duty to repair and maintain the roof in a dry and tenantable condition. Defendant does not dispute this finding in this court. The question is, given a breach of this duty, what damages may plaintiff recover.

Generally, the principal function of the court in construing a written lease is to discern and give effect to the intention of the parties as expressed in the language of the document when read as a whole. (Michigan Avenue National Bank v. Evans, Inc. (1988), 176 Ill. App. 3d 1047, 531 N.E.2d 872; Midwest Bank & Trust Co. v. Scot Lad Foods, Inc. (1986), 140 Ill. App. 3d 166, 488 N.E.2d 676; Zion Industries, Inc. v. Loy, 46 Ill. App. 3d 902, 361 N.E.2d 605.) Words should be given their common and ordinary meaning. (Anest v. Bellino (1987), 151 Ill. App. 3d 818, 503 N.E.2d 576.) Generally, damages to which a party is entitled are such as arise naturally from the breach itself, or those which may reasonably be supposed to have been within the contemplation of the parties at the time the contract was made. (Zion Industries, Inc. v. Loy, 46 Ill. App. 3d 902, 361 N.E.2d 605; Sitnick v. Glazer (1956), 11 Ill. App. 2d 462, 138 N.E.2d 84.) The general rule of contracts that plaintiff is only entitled to recover damages to the extent of its injury is applicable to cases of breach of a lease. Stride v. 120 West Madison Building Corp. (1985), 132 Ill. App. 3d 601, 477 N.E.2d 1318; Wanderer v. Plainfield Carton Corp. (1976), 40 Ill. App. 3d 552, 351 N.E.2d 630.

Article VIII, section 1, quoted above, contains no reference to the tenant’s remedy. Other sections, however, refer to the risk which the tenant was to bear.

For example, under article VIII, section 5, the tenant has the “right to apply the costs thereof [repairs required to be made by the landlord but caused to be made by the tenant] as a credit on the amount of rent thereafter becoming due under the terms” of the lease.

In addition, under article XI, the tenant may abate or reduce its rent payments where “there is substantial interference with the operation of the business of Tenant in the demised premises, having regard to the extent to which Tenant may be required to discontinue its business in the demised premises, and such abatement or reduction shall continue for the period commencing with such destruction or damage and ending with the substantial completion by Landlord of such work of repair and/or reconstruction as Landlord is obligated to do.”

The lease, therefore, limits plaintiff to paying for repairs and recouping through a rent credit or abating or reducing its rent. The lease does not indicate that the types of consequential damages which plaintiff seeks were reasonably within the contemplation of the parties at the time the lease was made.

In addition, plaintiff failed to provide sufficient evidence either regarding whether it suffered any loss, or regarding the extent or measure of its claimed loss. See Stride v. 120 West Madison Building Corp., 132 Ill. App. 3d 601, 477 N.E.2d 1318; Wanderer v. Plainfield Carton Corp., 40 Ill. App. 3d 552, 351 N.E.2d 630.

In regard to damages for lost profits, plaintiff attempted to use a “gross margin” method of calculating lost earnings. The trial court correctly found that the accepted way of proving lost earnings is to calculate loss of net profit, with a reasonable degree of certainty or a fair degree of probability. See Gaunt & Haynes, Inc. v. Moritz Corp. (1985), 138 Ill. App. 3d 356, 485 N.E.2d 1123; S.A. Maxwell Co. v. DeSoto, Inc. (1979), 73 Ill. App. 3d 844, 392 N.E.2d 33; Rivenbark v. Finis P. Ernest, Inc. (1976), 37 Ill. App. 3d 536, 346 N.E.2d 494.

Plaintiff’s evidence in regard to markdowns was also insufficient. Madigan testified that after moving the goods, plaintiff only marked them down “in some cases.” He testified that an increased supply did not force plaintiff to mark down the goods. He said that “some of it was marked down because it was just timely for it to be marked down, and it was marked down in all the stores.” Moreover, “merchandise ages” after 60 days and must be marked down.

Iny testified that the “good majority” of the merchandise was salable. In some cases, there was no markdown. Markdowns occur as a normal part of business. The goods would have been marked down anyway, but not for the same amount of money. Markdowns were made for a variety of factors, including the season and how long the merchandise had been in the store.

Iny also testified that oversupply required markdowns. On cross-examination he admitted that the records showed, for example, that one item from Winston Plaza was added to 30 similar items in the receiving center. All 31 were then dropped from $10 to $6, but plaintiff was only requesting the $4 markdown for the one item. While testifying on the one hand that the surplus items from Winston Plaza caused an oversupply requiring all similar goods to be marked down, on the other hand Iny testified, “I’m not saying that that one item caused everything to be marked down of the same kind.”

From this evidence, it was impossible for the trial court to tell what markdowns, if any, resulted from the need to close the Junior Store and ship the goods to other stores.

Furthermore, in regard to damages for reopening expenses, plaintiff incurred no real loss. It admits that the first two months following the 1982 reopening resulted in approximately $160,000 additional revenues when compared to the same two months in 1981 and in 1983.

In regard to damages for the carpeting, plaintiff argues the proper measure of damages is the replacement cost. We agree with the trial court, however, that the measure of damages of personal property which is totally destroyed is the reasonable value of the property immediately prior to its destruction. (First National Bank v. Dusold (1989), 180 Ill. App. 3d 714, 536 N.E.2d 100; Gannon v. Freeman (1982), 103 Ill. App. 3d 917, 431 N.E.2d 1303.) Plaintiff introduced no evidence of that value.

Madigan testified that he did not know if the carpeting was upgraded or downgraded. Iny testified that plaintiff would have replaced certain worn pieces in the entryway from time to time. Plaintiff had no records regarding that and no dates as to when any area of carpeting had been replaced. Iny testified that on the company books, the carpeting is depreciated, but as part of the store’s total depreciation. Nevertheless, he could not give an approximate value for the carpeting prior to the water damage. “Well, to me the worth of anything we have in the store is its replacement value.” Some parts of the carpeting were 15 years old, but “they lookfed] fine.”

The actual amount of total damages incurred for repairs, including the question of whether the' 54-day period of time was necessary to make the repairs, is further confused by testimony regarding remodeling. Iny denied any “remodeling,” modernization or upgrading was done. He stated, “[U]pgrading implies a better quality of things.” He testified further, “I would say that the store was rebuilt to the standards that we normally experience and build in our locations.” He admitted, however, that plaintiff spent four times the amount of money necessary for repairing the water damage, although it only sought the one-quarter amount. Iny also stated: “As part of repairing the store and bringing it to a condition that we could reopen it, some remodeling would have been done, but when you say remodeling, you know, it wasn’t extensive, the kind of remodeling that you might expect.” Moreover, the successful reopening and the extra $160,000 in profits were partially due to “expenditure of monies for bringing the store up to a level that we wanted it to be at the time we reopened it.”

In its closing argument, however, plaintiff argued that the jump in profits after reopening could be attributed to remodeling. “And indeed, while we might have presented evidence that the remodeling was caused by the breach, we have not done so. And we are not taking that position.” Plaintiff’s counsel noted that four times the cost of water repairs was spent on “remodeling.”

We conclude that, except for the $2,610 award to plaintiff for destroyed merchandise, the trial court properly decided on the issue of damages.

Defendant also maintains that there is an additional ground for affirming the trial court’s judgment. Defendant asserts that it is a co-insured under plaintiff’s insurance policy with American Protective Insurance. In view of our holding, it is unnecessary to consider that contention.

For the foregoing reasons, the portions of the judgment of the circuit court of Cook County in favor of defendant are affirmed; the portion of the judgment awarding $2,610 to plaintiff for destroyed merchandise is reversed.

Judgment affirmed in part and reversed in part.

EGAN and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    HERITAGE COUNTY BANK AND TRUST COMPANY, as Ex’r of the Estate of Willis T. Howell, Plaintiff-Appellant, v. STATE BANK OF HAMMOND et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—89—1811
    Opinion filed May 18, 1990.

      Bruce M. Bozich, of South Holland (Joseph D. Keenan III, of counsel), for appellant.
    Kelly, Olson, Pusch, Rogan & Siepker, of Chicago (James M. Rogan, Jill A. Dougherty, and John C. Sciaccotta, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff Heritage County Bank & Trust (Heritage Bank), as executor to the estate of Willis T. Howell, Sr. (Howell Sr.), brought action to quiet title to a parcel of real estate. Both Heritage Bank and defendant Joe Howell asserted competing claims to title based on a land trust agreement between the decedent and defendant State Bank of Hammond, Illinois (Trustee Bank). Subsequently an intervening complaint and a counterclaim were filed. Heritage Bank and Joe Howell then filed cross-motions for summary judgment. The circuit court denied plaintiff’s motion and granted summary judgment for defendant Joe Howell. Jurisdiction is asserted pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

On appeal, Heritage argues that: (1) Howell Sr. acquired a vested, indefeasible right to the beneficial interest in the trust res after 20 years pursuant to language in the trust agreement stating that property which remains after 20 years will be sold and the proceeds divided among those entitled under the agreement; and (2) Howell Sr. acquired an equitable right to legal title to the subject property when the trustee failed to sell the property as required under the trust agreement within a reasonable time after the agreed on date. We affirm.

The undisputed facts are these. On February 11, 1954, Howell Sr. entered into a trust agreement with the Trustee Bank and conveyed a parcel of land as the trust res. Under terms of the trust, Howell Sr. was sole beneficiary until his death and his brother, defendant Joe Howell, was contingent beneficiary. The trust agreement provided in part:

“If any property remains in this trust twenty years from this date it shall be sold at public sale by the trustee on reasonable notice and the proceeds of the sale shall be divided among those who are entitled thereto under this trust agreement.”

The trust did not specify any other expiration or termination date or event. During the next 20 years, the land remained in the trust res and the trust terms were not amended in writing.

After the 20-year period expired in February of 1974, the Trustee Bank did not attempt to sell the land and Howell Sr. did not attempt to renew the agreement in writing, as required by the trust. Howell Sr. did continue to pay trust fees to the Trustee Bank until 1978. Howell Sr. died testate on December 17, 1984, leaving his estate to his children Betty Ann Howell and Willis T. Howell, Jr.

On June 17, 1988, the Trustee Bank conveyed legal title of the property to Joe Howell at his request. On December 21, 1988, plaintiff Heritage Bank filed its complaint to quiet title. In granting Joe Howell’s motion for summary judgment, the court held: “[T]he settlor manifested [the] intention to have this trust continue in its original terms and the conduct of everyone seems to indicate that.”

The same rules that govern the construction of wills apply to the construction of trust instruments. (First National Bank v. Canton Council of Campfire Girls, Inc. (1981), 85 Ill. 2d 507, 513, 426 N.E.2d 1198, 1201.) In construing a trust agreement, the court must ascertain the intent of the settlor. (Northern Trust Co. v. Tarre (1981), 86 Ill. 2d 441, 450, 427 N.E.2d 1217, 1221.) Furthermore:

“ ‘Such intention is determined in two ways: one by ascertaining the testator’s actual meaning from the words employed, to which all rules of construction give way, and the other by finding his presumed intention by the application of rules of construction where the meaning is obscure, doubtful, or uncertain. Resort to such rules is necessary, however, only where the actual intent cannot be ascertained. If the intention may be gathered from the language of the will without reference to rules of construction, there is no occasion to use them.’ ” Trackman v. Ringer (1988), 174 Ill. App. 3d 1093, 1098, 529 N.E.2d 647, 649, quoting Wiener v. Severson (1957), 11 Ill. 2d 347, 349, 143 N.E.2d 225.

I

Heritage claims that pursuant to the trust instrument, Howell Sr. acquired a vested, indefeasible beneficial interest in the trust premises after the expiration of 20 years because the trust provided that the property was to be sold and the proceeds distributed at that time.

If the language of a trust specifies that the trust terminates and the proceeds should be distributed by a certain date or after a certain amount of time, then the beneficiaries are entitled to the res at the time specified. (Friese v. Friese (1940), 373 Ill. 216, 219-20, 25 N.E.2d 788, 790; Yedor v. Chicago City Bank (1941), 376 Ill. 121, 129, 33 N.E.2d 220, 224-25.) If a trust does not specify a termination point but directs that the res should be sold and the proceeds distributed after a certain time and this distribution does not occur, then the beneficiaries have a right to petition the court for distribution. Breen v. Breen (1952), 411 Ill. 206, 212-13, 103 N.E.2d 625, 628-29.

Heritage Bank cites these cases along with the language of the trust and concludes that the trust expired after 20 years. Heritage further cites Wiener (11 Ill. 2d 347, 143 N.E.2d 225), and Eiche v. Illinois National Bank & Trust Co. (1980), 84 Ill. App. 3d 535, 406 N.E.2d 210, to argue that Howell Sr.’s rights as a beneficiary were indefeasibly vested.

These two cases, however, are distinguishable. In Wiener, a testator left the residue of his estate in trust to pay income to his widow and incompetent son. After the survivor died, the trust was to “be immediately terminated and the trust estate herein *** distributed” equally to another son and a daughter or their issue. (Wiener, 11 Ill. 2d at 348, 143 N.E.2d at 226.) After the death of the two beneficiaries, but before distribution of the trust res, the daughter died leaving no issue. The Wiener court held that the trust had terminated when the beneficiaries died, which was also when the purpose of the trust had been fulfilled. Therefore, the daughter took at that time under the terms of the trust even though she did not survive until the distribution of the res. To rule otherwise would mean that important property rights would depend on the delay or diligence with which distribution is made. Wiener, 11 Ill. 2d at 349-53, 143 N.E.2d at 226-28.

In Eiche a settlor established a trust to pay taxes and expenses following her death. Income accumulating between the settlor’s death and trust distribution was to be paid to John Eiche. The subsequent distribution included a gift of $10,000 to Julia Eiche or, if she died “before receiving her share,” to her five named grandchildren. Taxes and expenses were fully paid on October 28, 1976, Julia Eiche died on December 9, and the trustee distributed her share to her grandchildren on December 28. Her estate sued the trustee. The court ruled in favor of the estate, finding that Julia Eiche’s share had vested on October 28, after the purpose of the trust had been fulfilled. The court reasoned that the law favors early vesting and that vesting occurs when there is a right to distribution, not when the distribution is actually made. Eiche, 84 Ill. App. 3d at 537-38, 406 N.E.2d at 212.

The facts of Breen are similar to the ones here. In Breen settlors conveyed an apartment building to a trustee who was to manage it and divide the proceeds among the beneficiaries. The trust provided: “If any property remains in this trust twenty years from this date it shall be sold at public sale by the trustee on reasonable notice, and the proceeds of the sale shall be divided among” the beneficiaries. (Breen, 411 Ill. at 208, 103 N.E.2d at 626.) Ten months after the 20-year period, some beneficiaries sued for partition. The court did not excuse the trustee for almost 10 month’s delay. But, the court held, “the [trustee’s] immediate failure to proceed to sale does not work a reconversion of the property giving [beneficiaries] an equitable interest entitling them to partition.” (Breen, 411 Ill. at 212, 103 N.E.2d at 629.) Rather it gave the beneficiaries the right to apply to the court for orders compelling the trustee to sell and distribute the proceeds. Breen, 411 Ill. at 212-13, 103 N.E.2d at 629; see also Smith v. Kelley (1944), 387 Ill. 213, 226, 56 N.E.2d 360, 366.

Unlike in Wiener and Eiche, where the trust purpose had been fulfilled, the trust here did not terminate. This case involves a land trust with language identical to Breen directing the trustee to sell and distribute after 20 years. Unlike in Breen, however, the beneficiaries did not ask the trustees to act or petition the court to compel action.

Furthermore, the facts here do not persuade us to grant unprecedented equitable relief. Defendants filed cross-motions for summary judgment with no facts in dispute. Under the Trackman test, if the words of a trust are unambiguous, as all parties agree they are here, then the court must ascertain the meaning of a trust by looking at the words employed. Plaintiff argues that the language of the trust indicates that Howell Sr. intended that the trust should expire in 20 years. In fact, this language states only that the settlor empowered the Trustee Bank to sell the property and distribute the proceeds at that time.

Even if we went beyond the unambiguous language of the trust, the facts here do not support plaintiff’s position. Howell Sr., settlor and sole beneficiary for the trust, continued to pay trust fees until 1978, four years after the 20-year period. We find this action inconsistent with Heritage Bank’s position that the trust had terminated in 1974. Judging from the action of Howell Sr., we can presume, as the trial court did, that he intended the trust would continue and his brother Joe Howell would take upon his death. Therefore, we conclude that the trust continued until 1988 when contingent beneficiary Joe Howell requested the Trustee Bank to convey legal title to the trust res.

II

Heritage also contends that Howell Sr. “acquired equitable right to legal title to the subject premises when *** the Trustee Bank failed to sell the subject property within a reasonable time.”

Under Illinois case law:

“[T]he trustee holds legal and equitable title to the real estate subject to full powers of direction and control in the trust beneficiaries. The trustee has duties to deal with the real estate on direction of the beneficiaries, and at the end of the trust period specified to sell any property remaining in the trust and divide the proceeds among the beneficiaries.” (Quinn v. Pullman Trust & Savings Bank (1968), 98 Ill. App. 2d 402, 404-05, 240 N.E.2d 791, 793.)

The trustee should perform these duties within a reasonable time. Breen, 411 Ill. at 212-13, 103 N.E.2d at 628-29; Smith, 387 Ill. at 226, 56 N.E.2d at 366.

As discussed above, the failure of the trustee to act in a reasonable time gives the beneficiaries the right to petition the court for action or a new trustee, but it does not terminate the trust. (Breen, 411 Ill. at 212-13, 103 N.E.2d at 628-29; see also Altschuler v. Chicago City Bank & Trust Co. (1942), 380 Ill. 137, 142, 43 N.E.2d 673, 676.) Furthermore, the time when interests vest in a beneficiary depends on rights defined in the terms of the trust, not on whether the trustees perform their duties in a reasonable time. Wiener, 11 Ill. 2d at 351-53, 143 N.E.2d at 226-28; Eiche, 84 Ill. App. 3d at 537-38, 406 N.E.2d at 212.

Heritage Bank cites these cases which support the beneficiary’s equitable right to compel a trustee to act and argues that the cases imply an equitable right to the trust res. Heritage does not, however, cite any cases that support such an implication. Furthermore, the Breen case is clear: beneficiaries to a real estate trust have “no right, either legal or equitable, to the real estate.” Breen, 411 Ill. at 213, 103 N.E.2d at 629.

Heritage also argues that the trustee’s failure to take any action to sell the premises for a period of 10 years was unreasonable as a matter of law. Therefore, Howell Sr. acquired “an equitable right to legal title to the subject premises.” Assuming that failure to act within 10 years is unreasonable, we must consider what rights accrued to the trust beneficiaries as a result. The cases clearly support a right to compel the trustee to act. They also indicate that, if a termination date is specified by the trust, the property interests vest even if a beneficiary dies before the distribution by the trustee. None of the cases, however, support an equitable vesting of legal title when a land trust does not have a specific termination date. Once again, under Breen the beneficiaries have no legal or equitable rights to the real estate, only the right to compel the trustees to act. Breen, 411 Ill. at 213, 103 N.E.2d at 629.

For the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


text:
    LISA KING, Plaintiff-Appellant, v. MABEL OHREN, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—2023
    Opinion filed May 18, 1990.

      Benjamin & Shapiro, Ltd., of Chicago (Fred I. Benjamin and Michael M. Mordini, of counsel), for appellant.
    James J. DesVeaux, of Chicago (J. Deborah Salvesen, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff Lisa King brought a two-count action for injuries suffered in defendant Mabel Ohren’s kitchen on May 18, 1986. Count I sounded in negligence, and count II was brought under the Animal Control Act (Act) (Ill. Rev. Stat. 1987, ch. 8, par. 351 et seq.). The trial court granted summary judgment for defendant on both counts. King appeals the dismissal of count II only.

The sole issue on appeal is whether the trial court erred in granting defendant’s motion for summary judgment when plaintiff was injured while defendant’s dog moved around underfoot. We affirm.

The undisputed facts are these. On May 18, 1986, King was cooking in the kitchen of defendant Ohren in the presence of Ohren’s dog, April. King had worked there several times before. In her statement to defendant’s insurer, King explained that on each occasion at dinner time, April would bark and move around underfoot “like kids do.” At the time of the accident, April did not touch King or move towards her. When King picked up a pot with boiling water from the stove and stepped toward the sink, the dog moved ahead of her on her right. The sink was also on King’s right. On the fourth step, King and the dog were at the edge of the sink. According to King’s affidavit, the accident occurred at this point when she went to put her foot down and “the dog got in [her] way” so she was “forced to alter [her] step to avoid the dog.” The water spilled onto King, scalding her.

Count II of the amended complaint alleged a cause of action under the Animal Control Act. Section 16 of the Act provides:

“If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.” Ill. Rev. Stat. 1987, ch. 8, par. 366.

Summary judgment may be granted if “what is contained in the pleadings and affidavit would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and a court would be required to direct a verdict.” (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.) A motion for summary judgment is properly granted and should not be overturned if the pleadings, admissions, affidavits and exhibits, all construed against the moving party and in favor of the opponent, “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Commonwealth Eastern Mortgage Co. v. Williams (1987), 163 Ill. App. 3d 103, 108, 516 N.E.2d 515, 518, citing Fooden, 48 Ill. 2d at 586, 272 N.E.2d at 500.

Under Section 16 of the Animal Control Act, a plaintiff must prove: (1) injury by an animal owned or harbored by the defendant; (2) lack of provocation; (3) peaceable conduct by the plaintiff; and (4) the presence of the plaintiff in a place where he had a legal right to be. Forsyth v. Dugger (1988), 169 Ill. App. 3d 362, 365, 523 N.E.2d 704, 706; Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 131, 344 N.E.2d 268, 270.

In this case, Ohren’s ownership of the dog, King’s peaceable, unprovocative conduct, and King’s presence in a place where she had a right to be are not in question. The sole issue is whether plaintiff’s injury was a result of the animal’s conduct.

Illinois case law has made it clear that the statutory words “attacks or injures” are disjunctive and allow the plaintiff to recover if the animal injured her but did not attack. (See, e.g., McEvoy v. Brown (1958), 17 Ill. App. 2d 470, 477-78, 150 N.E.2d 652, 655; Chittum v. Evanston Fuel & Material Co. (1980), 92 Ill. App. 3d 188, 190-91, 416 N.E.2d 5, 6-7.) However, an animal is the proximate cause of injury to a person only if the injury was caused “by the conduct of the dog” and not by “some independent act” of the plaintiff or others. Taylor v. Hull (1972), 7 Ill. App. 3d 218, 219, 287 N.E.2d 167, 168.

In Bailey v. Bly (1967), 87 Ill. App. 2d 259, 262, 231 N.E.2d 8, 9, the court would not find liability under the statute unless there was an “overt act, vicious or otherwise, attributable to the dog that caused the injury to the plaintiff.” In that case the plaintiff was leaving the defendant’s home. She carried a suitcase flat in her outstretched arms. As she started to exit, she saw defendant’s dog (Lady) lying against the screen door to the defendant’s porch. She commanded Lady to move, which the dog did. Bailey presumed that Lady had moved off the porch. Instead Lady moved to a porch step and lay down again. The plaintiff was injured when she tripped over Lady and fell. The court found that Lady was “an inert or passive force so far as it concerns the injuries of the plaintiff.” (Bailey, 87 Ill. App. 2d at 262, 231 N.E.2d at 9.) The court held further: “We will not impute to the legislature an imposition of liability, absolute in all respects, where there is no factual or reasonable basis for such liability other than as a pure penalty for dog ownership.” Bailey, 87 Ill. App. 2d at 262, 231 N.E.2d at 9.

Courts that have found liability for canine behavior have found some overt action by the dog toward the plaintiff. (See McEvoy, 17 Ill. App. 2d 470, 150 N.E.2d 652 (a dog ran between plaintiff’s legs); Aldridge v. Jensen (1970), 124 Ill. App. 2d 444, 259 N.E.2d 355 (a dog chased plaintiff on her bicycle).) In Taylor (7 Ill. App. 3d 218, 287 N.E.2d 167), the court reversed a summary judgment for the defendant where the dog ran on to the roadway in the path of the plaintiff’s car.

Plaintiff here cites Taylor, Aldridge, and Garbell v. Fields (1962), 36 Ill. App. 2d 399, 184 N.E.2d 750, for the proposition that the determination of proximate cause under section 16 is a question of fact for the jury. We agree that in many instances proximate cause is a triable question of fact. When all the facts are before the court, however, and no material issue of fact remains, the matter can be disposed of by summary judgment. Fooden, 48 Ill. 2d at 587, 272 N.E.2d at 500.

Plaintiff also cites McEvoy, Garbell, Taylor, and Aldridge for the proposition that an active dog, as opposed to a passive or inert dog, can be a proximate cause of a plaintiff’s injuries. Again, we agree: Following Bailey, some overt act of the dog toward the plaintiff is required. We do not agree, however, that any overt act is sufficient to establish liability.

The undisputed facts from King’s affidavit and statement to defendant’s insurer are that King was working in the kitchen with April present. As King carried a pot of boiling water from the stove to the sink, April walked in front of King and to the right. On the fourth step, King and the dog reached the sink. Both the dog and the sink were to the right of King. At this point, King put her foot down, then stepped backwards to avoid the dog and scalded herself.

It is clear that April did not either “attack” or “startle” King as was alleged in her complaint. Nor did April even advance toward the plaintiff. The evidence tells the court only that April stopped walking at the side of the sink and King stepped backwards to avoid stepping on her. The trial court found that April was in the kitchen, where she was always underfoot. April had been moving, but, the court noted, “[i]t’s the nature of dogs to move.” On these facts, the trial court held Bailey v. Bly to be dispositive.

The material facts that were before the trial court describe a dog who did not touch, attack, or even startle plaintiff. King argues that the dog was the cause of her injuries because she was carrying a pot of scalding water, the dog got in her way, and she was forced to alter her step to avoid the dog. King admits, however, that the dog did not advance toward her and was acting in a predictable fashion based upon plaintiff’s previous experience. The facts of the accident together with the fact that April’s behavior was usual and predictable to plaintiff leads us to conclude that April was a passive force as far as the injuries to King were concerned.

In Harris v. Walker (1988), 119 Ill. 2d 542, 547, 519 N.E.2d 917, 919, the supreme court reviewed the legislative purpose of the Animal Control Act and held that section 16 was not enacted to impose strict liability on animal owners. We also refrain from imposing strict liability here, holding instead that an animal is a passive causal force and cannot be a proximate cause of injuries if it stands still or moved away from a plaintiff in a usual, predictable manner known to the plaintiff.

For the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.

McNAMARA and EGAN, JJ., concur.


author: JUSTICE LORENZ

text:
    LEAZO L. HENDRIX, Plaintiff-Appellant, v. THE BOARD OF EDUCATION OF THE CITY OF CHICAGO et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—2864
    Opinion filed April 27, 1990.
    Rehearing denied July 12, 1990.

      Leazo L. Hendrix, of Chicago, appellant pro se.

    Robert S. Bates, Jr., of Jacobs, Burns, Sugarman & Orlove, of Chicago, for appellees.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows dismissal (Ill. Rev. Stat. 1987, ch. 110, par. 2— 615) of plaintiff’s cause of action sounding in tort.

We affirm.

The record indicates plaintiff Leazo Hendrix was employed as a school clerk at Bethune Elementary School. On December 3, 1986, the Chicago Board of Education (Board) filed charges against plaintiff based, generally, on insubordination, unsatisfactory conduct, and unsatisfactory job performance. Ultimately, a hearing officer found the charges substantiated and plaintiff was dismissed from her employment.

The record indicates plaintiff did not seek timely administrative review of that action.

On December 16, 1988, plaintiff filed her original pro se complaint in the matter giving rise to this appeal. That complaint named, as defendants, Warren Franczyk, Helen Mardis, Audrey Ongman, and Manfred Byrd, Jr., all employees of the Board. The Board itself was not named as a defendant.

On March 20, 1987, the four named defendants moved to dismiss plaintiff’s complaint.

Instead of responding to the motion, on August 3, 1987, plaintiff filed a document labeled “Second Complaint in Brief,” which we will refer to as plaintiff’s first-amended complaint. That complaint, like plaintiff’s original complaint, was labeled as sounding in “defamation-libel” and named the same four Board members as defendants.

Defendants were given leave to, and did, file a motion to dismiss plaintiff’s first amended complaint. That motion was granted on February 22,1988, and plaintiff was given 28 days to amend her complaint.

On March 18, 1988, plaintiff filed a document labeled “Amended,” which we will refer to as plaintiff’s second-amended complaint. That complaint named only Franczyk and the Board as defendants.

On April 5, 1988, plaintiff filed a document labeled “Amended Cont’d,” which we will refer to as plaintiff’s third-amended complaint. That complaint named, as defendants, Franczyk, the Board, and the Chicago Teachers Union (Union).

The Union successfully moved to dismiss plaintiff’s third-amended complaint. However, the circuit court subsequently vacated its order and granted plaintiff leave to amend.

On June 27, 1988, the Board, on behalf of itself and Franczyk, moved to dismiss plaintiff’s second-amended complaint.

On July 25, 1988, plaintiff filed another document labeled “Amended Complaint,” which we will refer to as plaintiff’s fourth-amended complaint. Only the Board and Union were named as defendants in that complaint.

On July 20, 1988, plaintiff filed a document labeled “Amended Complaint & Memorandum In Support of Response-Not to Dismiss.”

On July 25,1988, the Union renewed its motion to dismiss.

On August 15, 1988, the circuit court dismissed all pending complaints.

This appeal followed.

Opinion

The Code of Civil Procedure (Code) requires that all pleadings contain a plain and concise statement of the cause of action and a specific prayer for relief. (Ill. Rev. Stat. 1987, ch. 110, pars. 2—603(a), 2—604.) The Code also provides that no pleading should be considered legally insufficient where it contains such information “as reasonably informs the opposite party of the nature of the claim.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—612.) Thus, pleadings should be construed liberally “with a view to doing substantial justice between the parties.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—603(c).) However, after carefully considering each of the documents filed by plaintiff in the instant matter, with particular consideration given to the fact that plaintiff had no legal training, we conclude that, even under a most liberal reading, all fail to satisfy the minimum required under the Code to state a recognizable cause of action.

Although, generally, prior pleadings are superseded by amended pleadings (see Burdin v. Jefferson Trust & Savings Bank (1971), 133 Ill. App. 2d 703, 269 N.E.2d 340), we consider, in turn, each of plaintiff’s complaints. We note here that all of the complaints are handwritten. Although largely legible, much that is contained in the complaints is difficult to follow.

Plaintiff’s original complaint was labeled “defamation-libel.” The complaint stated Franczyk had made “false reports” to police officers on May 12, 1988, concerning an incident which occurred at Bethune Elementary School. The complaint indicates plaintiff claimed she was struck by another teacher and that Franczyk told police officers “ ‘some staff members said [plaintiff] offered to pay them to witness what occurred in office vault’ (assault).” The complaint alleged Franczyk forwarded the reports to the Board with other documents “in request for a conference which was actually a ‘hearing,’ ” and thereby did harm to plaintiff’s character. The complaint stated Mardis submitted a memo containing untruths to plaintiff’s personnel file, causing more harm to plaintiff’s character, Ongman accepted such documents, and Byrd also participated in the defamation. The complaint contains no specific prayer for relief.

Plaintiff’s complaint is defective for several reasons. No specific allegations are directed at defendants Mardis, Ongman, and Byrd concerning defamation of plaintiff as required in Hlinois. (See American International Hospital v. Chicago Tribune Co. (1985), 136 Ill. App. 3d 1019, 483 N.E.2d 965.) As to Franczyk’s alleged statement, that allegation, without more, cannot be considered libelous per se as being so obviously and naturally harmful as to have harmed plaintiff’s reputation. (See American International Hospital (1985), 136 Ill. App. 3d 1019, 483 N.E.2d 965.) No actual harm is alleged. Nor did the complaint allege special damages to support a cause of action for libel per quod. See American International Hospital, 136 Ill. App. 3d 1019, 483 N.E.2d 965.

Plaintiff’s amended complaint apparently pertains to the same statement recorded in plaintiff’s original complaint. As against Mardis, plaintiff’s amended complaint stated “Mardis signed memo to file (my personal file) 2 pages of confession of truth of verbal concealing.” Further, “the memo to file also consisted of untrue/hearsay, and placing me under police threat.” As to Ongman, plaintiff alleged Ongman “confirmed by telephone decisions(s) on untrue-hearsay information submitted to her” by Franczyk and, further, “submitted untrue information to agencies three letters of termination under oath.” As to Byrd, the complaint alleged he received the “untrue/hearsay” information and sent “untrue information through school system.” Plaintiff also alleged Byrd contributed to the defamation of plaintiff’s character “by letting Mrs. Ongman sit as police, judge and jury of [plaintiff’s] case.” The complaint contains no prayer for relief.

Although plaintiff did not attach exhibits to the first-amended complaint, the record contains a copy of that complaint to which exhibits were attached. Even considering those exhibits in conjunction with the allegations above, we cannot conclude plaintiff’s amended complaint states a recognizable cause of action. Two of the eight pages of exhibits consist of a memo, written by Mardis, apparently intended for plaintiff’s personnel file. The memo consists of a recitation of events leading up to plaintiff’s “unsatisfactory rating.” The other six pages of exhibits consist of, apparently, excerpts from the hearing on plaintiff’s dismissal. That material does not in any way aid in the understanding of the allegations of the complaint.

Plaintiff’s second-amended complaint contains no indication that it was based on a theory of defamation. Instead, the complaint states Franczyk “deceitfully]” rated plaintiff “unsatisfactory” and refused plaintiff’s “request for a witness to discuss unsatisfactory rating.” The complaint also alleged plaintiff was not informed that the “conference” which was scheduled for September 4, 1986, was actually a hearing. Further, plaintiff alleged she was told to “attend or be e[s]corted out the building.” The complaint contains a prayer for “three million dollars.”

Other than indicating “deceit,” the second-amended complaint simply fails to set out any element of a recognizable cause of action.

Plaintiff’s third-amended complaint charged the Union, in conspiracy with the Board, combined to “oust” plaintiff from her job. The complaint does not, otherwise, in any fashion, set out any allegedly wrongful conduct. The complaint contains no prayer for relief.

Plaintiff’s fourth-amended complaint refers to funds being withheld from plaintiff. Specifically, the final paragraph in the complaint contains a prayer for relief which refers to a “$14.60 deduction from [plaintiff’s] check that [plaintiff] never had a choice about.” Plaintiff sought return of “all monies deducted.” The complaint does not otherwise contain a statement as to why funds were withheld from plaintiff or why that withholding was improper.

The last document filed by plaintiff, the “Amended Complaint & Memorandum in Support of Response-Not to Dismiss,” is also labeled as sounding in “defamation-libel” but does not contain allegations different than those noted above. The document does not contain a prayer for relief.

Because none of plaintiff’s complaints contains a clear statement of any cause of action, we cannot conclude the circuit court improperly dismissed plaintiff’s complaints.

Affirmed.

MURRAY and GORDON, JJ., concur.

       Justice R. Eugene Pincham participated in this case prior to his resignation. Since that time, Justice Joseph Gordon was designated the third member of the panel and has read the record and briefs and has listened to the oral argument tapes.


author: PRESIDING JUSTICE BUCKLEY

text:
    CONNIE FOLEY et al., Plaintiffs-Appellants, v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, Council 31, Local No. 2258, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—0603
    Opinion filed April 30, 1990.
    Rehearing denied June 28, 1990.

      Clara L. Larry and Mary A. Kenny, both of Chicago, for appellants.
    Cornfield & Feldman, of Chicago (Milissa J. Auerbach, of counsel), for appellee American Federation of State, County, and Municipal Employees, Council 31, Local No. 2258.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Daniel N. Malato, Assistant Attorney General, of Chicago, of counsel), for appellees Illinois Department of Corrections and Illinois Department of Central Management Services.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from an action brought by Connie Foley and Baxter Burke (plaintiffs) to recover damages for breach of the duty of fair representation by the American Federation of State, County, and Municipal Employees, Council 31, Local No. 2258 (the union) and the breach of a collective bargaining agreement by the Illinois Department of Corrections and Illinois Department of Central Management Services. Pursuant to section 2—619(a)(1) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(1)), the circuit court of Cook County dismissed plaintiffs’ complaint for lack of subject matter jurisdiction. Plaintiffs appeal the dismissal of their complaint and raise the following issues for our review: (1) whether the circuit court erred in finding that the Illinois State Labor Relations Board (the Board) had exclusive jurisdiction over plaintiffs’ breach of duty of fair representation claim against the union and (2) whether the circuit court erred in barring plaintiffs’ claim against the Illinois Department of Corrections and Illinois Department of Central Management Services (the State) on the grounds of sovereign immunity. For the reasons set forth below, we affirm.

Plaintiffs were employed by the State as parole officers and also were members of the union that had entered into a collective bargaining agreement (the Agreement) with the State. The pertinent provisions of the Agreement provided that “in cases of promotion, *** seniority shall prevail unless a less senior employee has demonstrably superior skill and ability to perform the work required in the position classification.”

In December 1984, the State filled promotional positions with employees that possessed less seniority than plaintiffs and with individuals outside the bargaining units. Plaintiffs subsequently filed a grievance with the union, claiming that the State’s actions breached the Agreement. The union processed plaintiffs’ grievance through the third step of the grievance procedure established by the Agreement. Thereafter, the union determined that the grievance could not prevail at arbitration and ceased further processing of plaintiffs’ grievance.

On April 11, 1988, plaintiffs filed a complaint in the circuit court of Cook County, alleging that the union had breached its statutory duty of fair representation owed to plaintiffs under the Illinois Public Labor Relations Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 1601 et seq.) and that the State breached its collective bargaining agreement. Plaintiffs sought $80,000 in damages from the union and the State, respectively.

The circuit court granted the union’s and the State’s motions to dismiss plaintiffs’ suit on the grounds that it lacked subject matter jurisdiction. As to the union, the circuit court determined that breach of a duty of fair representation is an unfair labor practice and therefore within the exclusive jurisdiction of the Board. As to the State, the circuit court found that the sovereign immunity doctrine barred plaintiffs’ action.

On appeal, plaintiffs first contend that the statutory enumerations of unfair labor practices under the Act do not encompass the breach of a union’s duty of fair representation. Plaintiffs therefore argue that they are entitled to bring suit in the circuit court. We disagree.

The Board has held that the Act imposes upon exclusive representatives the duty of fair representation and that an exclusive bargaining representative commits an unfair labor practice pursuant to section 10(b)(1) of the Act when it fails to fairly represent the interest of all members of a bargaining unit as required by section 6(d) of the Act. (Sosner & American Federation of State, County & Municipal Employees (AFSCME), Local 1006, 2 Pub. Employee Rep. (Ill.) par. 2004, at Vll-17, No. S—CB—7 (Illinois State Labor Relations Board November 20, 1985.) Section 6(d) of the Act states the following:

“(d) Labor organizations recognized by a public employer as the exclusive representative or so designated in accordance with the provisions of this Act are responsible for representing the interests of all public employees in the unit. Nothing herein shall be construed to limit an exclusive representative’s right to exercise its discretion to refuse to process grievances of employees that are unmeritorious.” (Ill. Rev. Stat. 1987, ch. 48, par. 1606(d).)

In Eugene Mathis & American Federation of State, County & Municipal Employees, 4 Pub. Employee Rep. (Ill.) par. 2049, at 342, No. S—CB—87—35 (Illinois State Labor Relations Board November 17, 1988), the Board adopted a standard governing fair representation cases. The Board stated the following:

“As we held in AFSCME, Local 1006 (Sosner), 2 PERI par. 2004 (ISLRB 1985), the Act imposes upon labor organizations representing public employees a ‘duty of fair representation.’ This duty is predicated upon Section 6(c), which provides that a labor organization that has the support of a majority of employees in a bargaining unit shall be certified as the exclusive bargaining representative of those employees, and Section 6(d), which provides that exclusive bargaining representatives have a duty to represent all of the employees in the bargaining unit. A labor organization that does not adequately do so ‘restrains or coerces’ employees within the meaning of Section 10(b)(1).” (Eugene Mathis & American Federation of State, County & Municipal Employees, 4 Pub. Employee Rep. (Ill.) par. 2049, at 342, No. S—CB—87—35 (Illinois State Labor Relations Board November 17, 1988).)

Section 10(b)(1) states:

“(b) It shall be an unfair labor practice for a labor organization or its agents:
(1) to restrain or coerce public employees in the exercise of the rights guaranteed in this Act, provided (i) that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein or the determination of fair share payments and (ii) that a labor organization or its agents shall commit an unfair labor practice under this paragraph in duty of fair representation cases only by intentional misconduct in representing employees under this Act.” Ill. Rev. Stat., 1989 Supp., ch. 48, par. 1610(b)(1).

From the above, it is established that a union’s breach of duty of fair representation is an unfair labor practice under the Act. As such, it is subject to the Act’s comprehensive scheme of remedies and administrative procedures.

Contained in section 5 of the Act are provisions that confer upon the Board exclusive jurisdiction over duty of fair representation claims. (Ill. Rev. Stat. 1987, ch. 48, par. 1605.) Final orders issued by the Board are appealable directly to the appellate court. (Ill. Rev. Stat. 1987, ch. 48, par. 1611(e).) No provision exists in the Act which authorizes public employees to file suit in the circuit court, alleging a union’s breach of duty of fair representation.

We further find that the circuit court was justified in relying upon our supreme court’s decision in Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 526 N.E.2d 149. In Compton, the supreme court held that the Illinois Educational Labor Relations Act (IELRA) (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.) divests the circuit court of jurisdiction to vacate or enforce arbitration awards pursuant to the Uniform Arbitration Act even though no express language appears in the IELRA which divests the courts of such jurisdiction. Plaintiffs argue that Compton is distinguishable from the instant case because it involved the issue of vacating arbitration awards under the IELRA. While we agree with plaintiffs that Compton is distinguishable from the instant case, we nevertheless adopt Compton’s policy rationale as applicable here to divest circuit courts of jurisdiction to hear breach of duty of fair representation claims. The Illinois Supreme Court in Compton stated the following:

“If jurisdiction over an award is to be divided between the Board and the circuit courts, it will often be difficult to know in advance where suit should be brought. Conflicting judgments and forum shopping will imperil the uniformity which the [IELRA] obviously seeks to achieve.” (Compton, 123 Ill. 2d at 222, 526 N.E.2d at 152.)

Because the Illinois Public Labor Relations Act and the IELRA were both enacted to provide “a comprehensive regulatory scheme for pub-lie sector collective bargaining in Illinois” (Chicago Board of Education v. Chicago Teachers Union (1986), 142 Ill. App. 3d 527, 530, 491 N.E.2d 1259, 1261), we find that the Compton policy concerns are equally applicable to the case at bar. Inconsistent judgments and forum shopping will be inevitable if we pronounce a rule whereby breach of the duty of fair representation claims can be maintained in the circuit courts, as well as before the Board. Furthermore, our already overburdened court system would face increased amounts of unnecessary litigation.

In an attempt to persuade us that concurrent jurisdiction exists between the circuit court and the Board, plaintiffs direct our attention to the National Labor Relations Act (NLRA) and Federal case law. The United States Supreme Court has found a cause of action to exist in Federal court for breach of the duty of fair representation even though the same claim may also be brought before the National Labor Relations Board. (Vaca v. Sipes (1967), 386 U.S. 171, 17 L. Ed. 2d 842, 87 S. Ct. 903.) The Supreme Court’s decision was primarily based upon the fact that under the NLRA, the General Counsel of the National Labor Relations Board has unreviewable discretion to refuse to institute an unfair labor practice complaint and retains the final authority to prosecute such complaint before the National Labor Relations Board. (Vaca, 386 U.S. at 182, 17 L. Ed. 2d at 853, 87 S. Ct. at 913; see also National Labor Relations Board v. Sears, Roebuck & Co. (1975), 421 U.S. 132, 44 L. Ed. 2d 29, 95 S. Ct. 1504; 29 U.S.C. § 153(d) (1983).) The Supreme Court held that if employees were precluded from bringing duty of fair representation claims in the courts, employees injured by arbitrary or discriminatory union conduct could no longer be assured of impartial review of their claims due to the General Counsel’s unreviewable discretion to refuse to institute an unfair labor practice complaint. Vaca, 386 U.S. at 182, 17 L. Ed. 2d at 853, 87 S. Ct. at 913.

Unlike the NLRA, the Act here sets forth explicit standards by which the Board must determine whether to issue an unfair labor practice complaint. (See Ill. Rev. Stat. 1987, ch. 48, par. 1611(a).) Under the Act, once a complaint is issued, the charging party, rather than the General Counsel, prosecutes his own case. (80 Ill. Adm. Code § 1220.50(e) (Supp. 1988).) The Board’s rules and regulations further provide that a decision on the part of the Board’s Executive Director not to issue an unfair labor practice complaint is appealable to the Board itself. (80 Ill. Adm. Code § 1220.40(b)(4) (Supp. 1988).) A final decision of the Board refusing to issue a complaint is reviewable on administrative review in the appellate court pursuant to section 11(e) of the Act. (Ill. Rev. Stat. 1987, ch. 48, par. 1611(e).) We believe that sufficient safeguards are prevalent in the Act which adequately protect an individual from any prejudice that may result from the Board’s exclusive jurisdiction. Although the Act was patterned after the NLRA, it has distinct provisions, properly setting it apart from the Federal legislation. (See Village of Wheeling v. Illinois State Labor Relations Board (1988), 170 Ill. App. 3d 934, 524 N.E.2d 958, appeal allowed (1988), 122 Ill. 2d 596, 530 N.E.2d 266.) A reasonable basis does not exist to find that employees under the Act would be left unprotected by exclusive Board jurisdiction, and we therefore refuse to subvert the clear language of the Act and established principles of law. Accordingly, we uphold the circuit court’s determination that breach of a duty of fair representation is an unfair labor practice within the Board’s exclusive jurisdiction.

As to plaintiffs’ claim against the State, plaintiffs contend that the circuit court erred in applying the doctrine of sovereign immunity because their action is not against the State of Illinois. We believe that plaintiffs’ claim is against the State of Illinois, and hence, one that should have been brought in the Court of Claims.

Although the Illinois Constitution abolished sovereign immunity (Ill. Const. 1970, art. XIII, §4), the legislature, acting under its constitutional authority, partially reinstated the doctrine by passing “An Act in relation to immunity for the State of Illinois” (the Immunity Statute), which provides that “except as provided in ‘An Act to create the Court of Claims ***,’ the State of Illinois shall not be made a defendant or party in any court” (Ill. Rev. Stat. 1987, ch. 127, par. 801). The Court of Claims Act (Ill. Rev. Stat. 1987, ch. 37, par. 439.1 through 439.24—9) establishes a Court of Claims to serve as a forum for actions against the State. Section 8(b) of the Court of Claims Act provides:

“The court shall have exclusive jurisdiction to hear and determine the following matters:
* * *
(b) All claims against the state founded upon any contract entered into with the State of Illinois.” Ill. Rev. Stat. 1987, ch. 37, par. 439.8(b).

The determination of whether an action is in fact one against the State and, therefore, one that must be brought in the Court of Claims, depends not on the formal identification of the parties, but rather on the issues involved and the relief sought. (Healy v. Vaupel (1990), 133 Ill. 2d 295, 549 N.E.2d 1240; Smith v. Jones (1986), 113 Ill. 2d 126, 497 N.E.2d 738; Herget National Bank v. Kenney (1985), 105 Ill. 2d 405, 475 N.E.2d 863; Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 470 N.E.2d 1029; Hudgens v. Dean (1979), 75 Ill. 2d 353, 388 N.E.2d 1242; Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975; Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, 101 N.E.2d 71.) “Thus, the prohibition ‘against making the State of Illinois a party to a suit cannot be evaded by making an action nominally one against the servants or agents of the State when the real claim is against the State of Illinois itself and when the State of Illinois is the party vitally interested.’ ” (Healy, 133 Ill. 2d at 308, 549 N.E .2d at 1247, quoting Sass v. Kramer (1978), 72 Ill. 2d 485, 491, 381 N.E.2d 975, 977.) If a judgment for a plaintiff could operate to control the actions of the State or subject it to liability, it will be deemed an action against the State, and the circuit court is without jurisdiction to entertain the action. Local 3236 v. Illinois State Board of Education (1984), 121 Ill. App. 3d 160, 459 N.E.2d 300; G.H. Sternberg & Co. v. Bond (1975), 30 Ill. App. 3d 874, 877, 333 N.E.2d 261, 264.

Relying primarily on People ex rel. Board of Trustees of University of Illinois v. Illinois Toll Highway Comm’n (1954), 3 Ill. 2d 218, 120 N.E.2d 35, and People v. Barnett (1943), 382 Ill. 321, 46 N.E. 951, plaintiffs argue that the instant suit is not against the State, but against the Illinois Department of Corrections and Illinois Department of Central Management Services as independent legal entities. Plaintiffs' argument is without merit.

Both cases cited above by plaintiffs are distinguishable from the instant case. In Illinois Toll Highway Comm’n, the court found that the Commission was an independent entity and not a department of the State because it had the power to issue bonds and enter into contractual obligations from which the Commission, and not the State, was liable and because the Commission could utilize the funds solely for highway purposes. (Illinois Toll Highway Comm’n, 3 Ill. 2d 218, 120 N.E.2d 35.) In effect, the Commission was solely responsible for raising and spending its own funds.

In Barnett, the court found that the University of Illinois was created as a public corporation for the specific purpose of operating and administering the university. (Barnett, 382 Ill. 321, 46 N.E. 951.) As such, the university possessed a high degree of autonomy in the management of its duties and finances, it held property only as trustee of the State, its liability was limited to the amount contained in the university’s funds, and the trustees of the board were not officers of the State.

Unlike Illinois Toll Highway Comm’n and Barnett, the lilinois Department of Corrections and Illinois Department of Central Management Services do not function as independent legal entities, nor were they created as separate legal entities, from the State of Illinois. They are departments of the State. A department of State government is a part, or division, of the government, and a suit against a department of the State is a suit against the State. Local 3236, 121 Ill. App. 3d at 164, 459 N.E.2d at 302-03; Gordon v. Department of Transportation (1982), 109 Ill. App. 3d 1071, 1074, 441 N.E.2d 904, 906, aff'd (1983), 99 Ill. 2d 44, 457 N.E.2d 403; see also Noorman v. Department of Public Works & Buildings (1937), 366 Ill. 216, 8 N.E. 637.

Because a judgment against the Illinois Department of Corrections and Illinois Department of Central Management Services here would effectively be against the State of Illinois, and such judgment could control the actions of the State in relation to its dealings with unions and their members, it is our view that plaintiffs’ claim is against the State of Illinois for purposes of the immunity statute. To hold otherwise would render meaningless section 8(b) of the Court of Claims Act, which provides that the Illinois Court of Claims “shall have exclusive jurisdiction to hear and determine *** [a]Il claims against the state founded upon any contract entered into with the State of Illinois.” (Ill. Rev. Stat. 1987, ch. 37, par. 439.8(b).) Accordingly, we uphold the circuit court’s dismissal of plaintiffs’ complaint against the State for lack of subject matter jurisdiction.

For all of the foregoing reasons, the order of the circuit court of Cook County dismissing plaintiffs’ complaint is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY MOLETERNO, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—0546
    Opinion filed May 16, 1990.
    Rehearing denied June 28, 1990.

      Edward M. Genson and Geena Diane Cohen, both of Genson, Steinback & Gillespie, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, Jeffrey Moleterno, was convicted of the murder of Timothy Bolger by a jury in the circuit court of Cook County. Defendant was sentenced to 20 years’ imprisonment. He appeals.

The State’s chief witness, Russell Marquardt, testified as follows. On February 3, 1987, Marquardt left his home at 8 p.m. and drove north on Central Avenue, which has one traffic lane and one curb or parking lane in each direction. Upon reaching the intersection of Central Avenue and Eastwood, Marquardt observed two autos stopped in the traffic lane facing north. Bolger’s auto, a Cadillac, was in front of defendant’s auto, a Buick. The lighting conditions at the scene were good. Marquardt saw defendant standing next to his car with the driver’s door open and arguing with Bolger, who was standing on the other side of the open car door. Bolger had one hand on the top of the car door and was pointing a finger at defendant with the other hand. Marquardt did not see any kind of weapon in Bolger’s hands at this time.

Marquardt then continued northbound on Central. As Marquardt reached the intersection of Central and Lawrence Avenues, about two blocks north of Eastwood, Bolger’s auto passed him on the right. Bolger was not swerving in and out of traffic or speeding at this time. Bolger proceeded to the intersection of Central and Higgins, a little over two blocks from Central and Lawrence. Bolger, who had his left turn signal on, moved into the left turn lane. Marquardt, who also intended to turn left, pulled into the left turn lane. One car separated Marquardt’s and Bolger’s autos. After the light turned green for Central Avenue, Bolger turned left or westbound onto Higgins. After the auto behind Bolger’s proceeded past the intersection, Marquardt proceeded to turn left onto Higgins. As he was doing so, defendant sped around him on the right and went westbound on Higgins. Marquardt had to slow down to avoid hitting defendant’s auto, which came within two feet of Marquardt’s auto. Defendant, whose tires were screeching when he went around Marquardt, accelerated his vehicle once on Higgins.

As defendant drove west on Higgins, he was flashing his high beam headlights on and off. About two hundred feet west of Central, Bolger’s auto stopped in the traffic lane. Defendant drove to within five or six feet behind and slightly to the right of Bolger’s auto. Marquardt stopped his car directly behind defendant’s car due to the presence of oncoming traffic. The lighting conditions at the scene were good. After stopping, Marquardt remained in his car. At that time, defendant got out of his car and began pointing at Bolger with his left hand while holding a chrome-plated gun behind his back with his right hand. Defendant then sidled toward Bolger while hollering at him. At this time, Bolger exited his auto while holding a drinking glass, drank from the glass and took about two steps toward defendant’s car. When Bolger reached the rear of his auto, defendant was within five or six feet of him. Defendant, who was still sidling toward Bolger and had not exposed the gun to him, pivoted, pointed the gun at Bolger’s chest and fired. Thereafter, defendant ran back to his auto, turned his headlights off and sped away. Marquardt did not see Bolger holding a knife at any time that night. Marquardt identified defendant in a police lineup later in the evening.

On cross-examination, Marquardt agreed that he had assumed that defendant and Bolger were arguing when he first saw them. He further admitted that he did not know how long the first altercation had lasted, nor did he know everything that had occurred during the altercation or what had caused it. Marquardt also admitted that he did not hear specifically what was said during the second altercation and did not know whether defendant was telling Bolger to leave him alone.

Chicago police officer Edmond Harder testified for the State that, upon arriving at the scene of the shooting, he observed a plastic drinking cup and straw about three feet away from Bolger’s body. Bolger’s body was lying by the rear bumper of the Cadillac.

Chicago police officer Robert Smitka testified for the State that he recovered a NATO military knife from the left sleeve pocket of the jacket Bolger was wearing. Smitka testified that the knife “wasn’t really operational” when he pulled it from the pocket.

Defendant testified in his own behalf to the following. On February 3, 1987, defendant was driving north on Central Avenue when he observed the auto driven by Bolger swerving in and out of traffic. As defendant and Bolger were driving north on Central, Bolger’s auto came to a stop in between the two northbound lanes. At that time, defendant flashed his headlights at Bolger to indicate that Bolger could get in front of him in defendant’s lane. Defendant, a truck driver, stated that truck drivers used that procedure to signal other drivers that it is all right to enter the lane that they are in. Thereafter, Bolger pulled into defendant’s lane in front of him, exited his auto and walked back toward defendant’s auto. Defendant also exited his auto and Bolger asked, “What the f— are you flashing your lights at me for you j— o-.” Defendant responded that he just wanted to let Bolger into his lane. Bolger then slapped defendant in the face and defendant said, “What’s wrong with you? I just tried to signal.” Bolger slapped defendant in the face again, knocking defendant’s eyeglasses off. Defendant picked his eyeglasses up, put them on and turned to face Bolger. As he did so, Bolger pulled a knife and said, “If you ever flash your lights at me again, I’ll kill you.” Thereafter, defendant entered his car and locked the door. Defendant had noticed that Bolger smelled of alcohol. After other drivers began blowing their car horns, Bolger entered his auto and proceeded north on Central. Defendant stopped his auto directly behind Bolger’s at the stop light at Central and Lawrence Avenues. Upon proceeding after the light changed, Bolger swerved his auto from the right lane into the left lane. As a result, Bolger and defendant were next to each other at the intersection of Central and Higgins. At that time, defendant realized that beyond the next intersection, which was controlled by a stop sign, Central’s two lanes merged into one. As such, defendant, who did not want any more trouble, was afraid to proceed north on Central because he knew that he or Bolger would have to yield. As a result, defendant ran the red light at Higgins and turned left from the right lane and in front of Bolger’s auto. Bolger also turned left almost simultaneously with defendant. Although defendant tried to outrace Bolger, Bolger passed him and cut defendant off. The area where the vehicles stopped was well lit. Bolger exited his car, and defendant observed something in Bolger’s hand. The thing in Bolger’s hand “glinted,” but defendant did not know what it was. Defendant also exited his car, the lights of which were on, and said, “I don’t want anymore trouble.” Bolger responded, “Now I’m going to kill you you little j--- o — .” Defendant then took a step back and shot Bolger once with a gun he had in his back pocket. Bolger turned and stepped toward his car. Defendant was scared because he thought Bolger was going for something in his trunk. Defendant ran to his auto, turned the lights off and drove home.

On cross-examination, defendant denied the version of events after the first altercation to which Marquardt testified. In addition, defendant stated that he came to within six to eight feet of Bolger during the second altercation and that Bolger was six feet away when defendant shot him. Defendant stated that he gave the gun to his wife and did not know where it was.

Opinion

On appeal, defendant first contends the trial court erred in denying a directed verdict in his favor at the close of all the evidence. Defendant asserts that the State’s evidence, specifically Marquardt’s testimony, was insufficient as a matter of law to establish his guilt beyond a reasonable doubt.

Defendant first specifically notes that Marquardt did not see his first altercation with Bolger in its entirety. What we cannot fathom from this assertion, even if it and defendant’s testimony regarding that altercation are true, is why it necessarily makes Marquardt’s testimony regarding the circumstances of the second altercation unreliable or incredible. Defendant wholly fails to explain why.

Defendant also notes that Marquardt assertedly testified that: he saw defendant’s and Bolger’s autos pull over to the side of the road before the second altercation; was unable to hear anything; Bolger cut defendant off; defendant was forced to stop behind Bolger; he observed the altercation from a distance; he saw Bolger approach defendant with “something” in his hand. Defendant characterizes this testimony as “vague” and as containing nothing which indicates that he committed murder. Similarly to his reliance on Marquardt’s failure to see the first altercation in its entirety, however, defendant fails to explain specifically why either Marquardt’s cited or entire testimony was “vague.” To the extent that we can infer the reasons for that conclusion, we disagree.

Specifically, we do not see why Marquardt’s testimony that he could not hear what defendant was saying during the second altercation but could hear him speaking loudly, which was in fact his testimony, renders his testimony as to what he saw “vague.”

Moreover, that Marquardt saw the second altercation from what defendant characterizes as “a distance” does not render vague or suspect his testimony as to what occurred during that altercation. The “distance” to which defendant refers was less than two car lengths from where Marquardt sat in his car. In addition, Marquardt testified, and defendant agreed, that the area where the cars were stopped was well lit.

Finally, Marquardt did not merely testify that he saw “something” in Bolger’s hand, contrary to defendant’s characterization of Marquardt’s testimony. Rather, he testified, without being contradicted or impeached by the defense in any way, that he saw Bolger holding a drinking glass. Significantly, this testimony was corroborated by Officer Harder’s testimony that, upon arriving at the scene of the shooting, he found a plastic drinking cup about three feet away from Bolger’s body. It was also corroborated by a photograph, admitted into evidence, taken of the scene after the shooting which shows such a cup under Bolger’s auto. In addition, Marquardt testified that he did not see Bolger holding a knife at any time during the night. Admittedly, the fact that Marquardt did not see the first altercation in its entirety might have required the jury to discount that testimony to the extent that it related to that altercation. However, defendant does not explain why the jury was required to reject that testimony to the extent that it related to the second altercation. Significantly, Marquardt’s testimony in that regard was also corroborated by the testimony of Officer Smitka that he found a knife in Bolger’s jacket pocket and that the knife was not “operational.”

After reviewing the facts of both altercations with Bolger, essentially as testified to by defendant, defendant concludes that they clearly indicated he had a reasonable belief that his life was in danger and, thus, in the need to use deadly force in self-defense. Specifically, defendant emphasizes the following facts in support of a finding that his belief in the need to use deadly force was reasonable: (1) Bolger was 23 years old, 6 feet 1 inch tall and weighed 245; (2) defendant was 44 years old, 5 feet 7 inches tall and weighed 145; (3) Bolger was legally intoxicated at the time; (4) Bolger twice blocked defendant’s passage then approached and threatened to kill him; (5) Bolger had previously struck defendant twice and displayed a knife; and (6) Bolger exited his auto with something shiny in his hand.

In determining a defendant’s right to use deadly force in self-defense, the issue is whether the defendant, when he used such force, actually and reasonably believed he was threatened with unlawful force that could have imminently caused him death or great bodily harm. (People v. Daily (1979), 79 Ill. App. 3d 928, 398 N.E.2d 923.) Where both criteria are met, a defendant will be exonerated from all criminal culpability. On the other hand, where the defendant has an actual but unreasonable belief in the need to use such force in self-defense, the proper verdict is voluntary manslaughter. Lastly, where the defendant lacks an actual belief in the need to use such force, the proper verdict is murder. See People v. Lockett (1980), 82 Ill. 2d 546, 551, 413 N.E.2d 378.

Moreover, a defendant’s perception of danger and knowledge of specific facts bearing thereon are material and relevant to the jury’s assessment of his belief that deadly force was necessary. (See People v. Evans (1982), 104 Ill. App. 3d 598, 432 N.E.2d 1285.) However, the defendant’s perception of danger is not alone dispositive of whether the use of deadly force was legally justified. Rather, the issue whether an otherwise criminal act is justified as self-defense turns on all of the surrounding facts and circumstances. Where there is a conflict in the evidence as to those facts and circumstances, a jury is not compelled to believe the defendant’s exculpatory version. See Evans, 104 Ill. App. 3d 598, 432 N.E.2d 1285.

In contrast to defendant’s version of the events after the first altercation with Bolger, the State’s evidence tended to show that: (1) defendant precipitated the second altercation by pursuing Bolger; (2) when shot, Bolger was walking toward defendant with a drinking cup rather than a knife in his hand; (3) the lighting conditions were such as to allow defendant to perceive the foregoing fact; (4) when shot, Bolger had gotten no closer than six feet from defendant; (5) defendant approached Bolger while holding the gun behind his back in such a way as to hide the gun from Bolger’s view; and (6) defendant fled the scene and secreted the weapon used to kill Bolger. Defendant has not convinced us that the jury was not entitled to rely on this evidence, which tended to show that defendant’s shooting of Bolger was premeditated rather than an act of self-defense. That is, the issue of self-defense being a question of fact for the jury, defendant has not convinced us that the evidence was so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of his guilt. See People v. Ellis (1982), 107 Ill. App. 3d 603, 437 N.E.2d 409; People v. March (1981), 95 Ill. App. 3d 46, 419 N.E.2d 1212.

Nor do we find the cases upon which defendant relies of any assistance to him. Unlike the situation in People v. Walker (1965), 55 Ill. App. 2d 292, 204 N.E.2d 594, it cannot be said here that “ ‘from the time the affray began until [the victim] was shot and killed there was not the slightest pause in the activities of the two men engaged, and not the slightest opportunity offered [defendant] to deliberate or reason in regard to the matter.’ ” (Emphasis deleted.) Walker, 55 Ill. App. 2d at 299.

Further unlike the situation here, in People v. Honey (1966), 69 Ill. App. 2d 429, 271 N.E.2d 371, the defendant’s testimony was the only evidence relating to his perception of the danger confronting him, the existence of a belief in a need to use deadly force and the reasonableness of such a belief. In such cases, the defendant’s testimony, if credible, will be dispositive of his right to use deadly force. However, that is not the case where, as here, the defendant’s testimony pertaining to his perceptions or subjective belief in the need to use deadly force is contradicted or impeached by other direct or circumstantial evidence.

People v. White (1980), 87 Ill. App. 3d 321, 323, 409 N.E.2d 73, counsels, inter alia, that a person threatened with physical harm “is not in a contest governed by established rules enforced by an on-the-scene umpire.” However, the dicta from White which includes the foregoing advice and which defendant quotes at length is of no avail to him given that it also includes a recognition that a defendant must have reasonable grounds to believe himself in apparent danger. In White, there was no testimonial evidence tending to contradict the defendant’s testimony that the victim was brandishing a knife when he was shot, i.e., contradicting the defendant’s perception of the danger posed by the victim. Thus, the fact that no knife was, in fact, found at the scene did not preclude the appellate court from concluding that defendant had reasonable grounds for using deadly force. Here, similarly to White, the defendant’s testimony implied a belief, however mistaken, that Bolger was brandishing a knife. However, here, unlike White, there was also testimonial evidence tending to show that defendant could not, in fact, have held such a belief.

Ultimately, viewing the evidence in the light most favorable to the State, as we are required to (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453), we believe that a reasonable jury could have found therefrom that defendant did not actually believe it was necessary to use deadly force against Bolger at the time he did so. Therefore, we cannot disturb the jury’s verdict. This conclusion is also dis-positive of defendant’s contention that his belief in the need to use deadly force was, at most, unreasonable and that he was therefore guilty of voluntary manslaughter, not murder.

Defendant lastly contends that the trial court erred in failing to specifically instruct the jury, sua sponte, that the State had the burden of disproving beyond a reasonable doubt his affirmative defenses of self-defense and voluntary manslaughter, based on an unreasonable belief in the need to use deadly force. Defendant’s contention is grounded upon People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, which he asserts is retroactively applicable to this case.

In the two cases involved in Reddick, the defendants, like defendant here, asserted the affirmative defenses of self-defense and voluntary manslaughter to murder charges. In each case, as in this case, the jury received Illinois Pattern Jury Instructions, Criminal, No. 7.02 (2d ed. 1981) (IPI Criminal 2d), on the State’s burden of proof to sustain a murder charge. They also received IPI Criminal 2d No. 7.04, on the offense of voluntary manslaughter based on provocation, and, like the jury here, No. 7.06, on the same offense based on an unreasonable belief in a justified use of force. IPI Criminal 2d Nos. 7.04 and 7.06 instruct the jury that the State has the burden of proof of the offense of voluntary manslaughter.

The Reddick court concluded that the foregoing instructions, when read together, misstated the burdens of proof on the issues of whether a defendant acted under an intense passion, or unreasonable belief of justification, where such theories were offered as defenses to murder charges. The court thus held that, to obtain a murder conviction in cases where the defendant adduces sufficient evidence to raise the affirmative defense of voluntary manslaughter based on provocation or, as in this case, an unreasonable belief in justification, the State has the burden of disproving the existence of provocation or an unreasonable belief in justification beyond a reasonable doubt and that a jury should be so instructed. The Reddick court also agreed "with one of the Reddick defendants that the trial court failed to instruct the jury that the State had the burden of disproving self-defense, i.e., of proving that the defendant was not justified in using deadly force.

Even assuming that the instant issue is properly before this court, contrary to the State’s arguments and, further, that Reddick is applicable here, Reddick does not require a reversal for the trial court’s failure to instruct the jury as defendant asserts. The trial court's failure to instruct the jury on the State’s burdens of disproving self-defense and voluntary manslaughter, even if error, was harmless beyond a reasonable doubt. It was harmless because the evidence of defendant’s guilt of the offense of murder, i.e., of his lack of any belief in the need to use deadly force, was so clear and convincing that the trial result would not have been different with such instructions. (People v. Carter (1988), 177 Ill. App. 3d 593, 600, 532 N.E.2d 531; People v. Skipper (1988), 177 Ill. App. 3d 684, 690, 533 N.E.2d 44; People v. Bailey (1986), 141 Ill. App. 3d 1090, 1104, 490 N.E.2d 1334; see also People v. Fierer (1988), 124 Ill. 2d 176, 187, 529 N.E.2d 972.) Defendant was not prejudiced by the failure to instruct the jury as contended.

For all of the foregoing reasons, we affirm defendant’s murder conviction.

Affirmed.

CERDA, P.J., and WHITE, J., concur.