text:
    STEVE F. MLYNARSKI, Indiv. and as Special Adm’r of the Estate of Rita C. Mlynarski, Deceased, Plaintiff-Respondent, v. RUSH-PRESBYTERIAN-ST. LUKE’S MEDICAL CENTER, Defendant-Contemnor.
    First District (6th Division)
    No. 1—90—0778
    Opinion filed April 26, 1991.

      Arnstein & Lehr, of Chicago (John L. Ropiequet and Laura Lynne Puk, of counsel), for appellant.
    Raymond P. Concannon, Ltd., of Chicago (Raymond P. Concannon and Michael P. Concannon, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Rush-Presbyterian-St. Luke’s Medical Center, appeals from a finding of contempt for the defendant’s refusal to produce a document requested by the plaintiff.

Rita C. Mlynarski was admitted to Rush-Presbyterian-St. Luke’s Medical Center and had surgery on March 12, 1987. On April 1, 1987, while she was still in the hospital, she slipped and fell in or near the bathroom and was injured. She died on September 12, 1987, and her husband, Steve Mlynarski, filed an action in her name on October 16, 1987.

In its answers to the plaintiff’s interrogatories, the defendant identified all eyewitnesses to the occurrence, all persons at the scene immediately before and after the occurrence, all persons with knowledge of the facts of the plaintiff’s injuries, and all persons who rendered treatment on the date of the occurrence.

The plaintiff filed supplemental interrogatories. Supplemental interrogatory number 2 sought the identity of the person within the defendant’s risk management department who participated or claimed to have participated in the investigation of the accident. Interrogatory number 3 asked for the name and address of each person with whom members of the defendant’s risk management department had communicated. Interrogatory number 7 asked for any statements, memoranda, interviews or writings concerning communications between the defendant, risk management, the defendant’s attorneys or any other persons relative to the allegations of the complaint. The defendant objected to interrogatories 2 and 3 on the ground that they were overly broad, burdensome and sought information that was not relevant. It objected to interrogatory number 7 on the grounds that the information sought was protected by both the attorney-client privilege and the work-product privilege. The plaintiff filed a motion to compel the defendant to answer the interrogatories.

After a hearing, the judge overruled the defendant’s objections to interrogatories numbers 2 and 3, and ordered the defendant to answer them. The judge also ordered the defendant to provide the documents requested by interrogatory number 7 to the court for in camera inspection. The defendant filed its answers to interrogatory numbers 2 and 3; the answers revealed that Ruth Goldsberry, a coordinator in the defendant’s office of risk management, had investigated the decedent’s fall. The answers also disclosed the names and addresses of all but two of the persons that Goldsberry had contacted during the course of her investigation.

The judge conducted an in camera inspection of three documents requested by interrogatory number 7. She ruled that the first document, a letter from Goldsberry to the defendant’s outside counsel, was privileged. She also ruled that the second document, a memo from Goldsberry to the defendant’s general counsel, was privileged because it contained a discussion about settlement.

The judge ruled that a memorandum from Goldsberry to the defendant’s general counsel was not privileged and ordered the defendant to produce it. The memorandum consisted of summaries of statements from persons Goldsberry had interviewed. The judge explained that, although the statements contained in that memorandum were not verbatim statements of witnesses, the memorandum did not involve Goldsberry’s “mental machinations.”

The defendant’s attorney sent a letter to the plaintiff’s attorney indicating that the defendant did not intend to comply with the judge’s order to produce the April 16 memorandum. The plaintiff’s attorney filed a motion requesting the judge to compel the defendant’s compliance with the order or to impose sanctions. On February 22, 1990, the judge granted the plaintiff’s motion to compel, and the defendant was held in contempt of court and fined $1. The issue is whether the disputed memorandum is protected by the attorney-client or work-product privilege. In effect, the judge ruled that it was protected by neither. The defendant contends that it is protected by both.

The attorney-client privilege protects confidential communications made by a client to an attorney while seeking legal advice. (134 Ill. 2d R. 201(b)(2).) When the client is a corporation, however, the question becomes which employees of the corporation are entitled to the protection of the privilege when they communicate with the corporation’s attorneys. The Illinois Supreme Court has adopted what has been described as a “control group” test. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 432 N.E.2d 250.) The court held that a rule limiting the privilege to employees forming “top management” was too narrow and adopted an expanded version of the control-group test:

“We believe that an employee whose advisory role to top management in a particular area is such that a decision would not normally be made without his advice or opinion, and whose opinion in fact forms the basis of any final decision by those with actual authority, is properly within the control group. However, the individuals upon whom he may rely for supplying information are not members of the control group. *** This approach, we think, better accommodates modern corporate realities and recognizes that decision-making within a corporation is a process rather than a final act.” (89 Ill. 2d at 120.)

Under the control-group test, there are two tiers of corporate employees whose communications with the corporation’s attorney are protected. The first tier consists of the decision-makers, or top management. The second tier consists of those employees who directly advise top management, and upon whose opinions and advice the decision-makers rely. 89 Ill. 2d at 120.

The party who claims the privilege has the burden of showing the facts which give rise to the privilege. (Claxton v. Thackston (1990), 201 Ill. App. 3d 232, 559 N.E.2d 82.) The question before us, therefore, is reduced to this: Has the defendant maintained its burden of showing that Goldsberry was a member of the control group? In support of its position the defendant submitted the affidavit of Sandra R. Jones, the director of the office of risk management and Golds-berry’s superior. Goldsberry held a position of coordinator. In her affidavit Jones said the following:

“All settlement decisions made with respect to litigated and non-litigated claims against the Medical Center are made jointly by Mr. Brown [the defendant’s general counsel], affiant [Jones] as Director, Office of Risk Management and the Coordinator in the Office of Risk Management who was assigned to handle the particular matter. Both affiant and the Coordinator assigned to any such matter are consulted from time to time both by Mr. Brown and by outside counsel to determine what legal action the medical center will pursue with respect to particular claims. The advice and opinions of affiant and the assigned coordinator form part of the basis for any decision to settle or litigate the matter.”

The defendant argues that the affidavit of Jones provides the necessary proof that Goldsberry was a member of the control group. The plaintiff has not responded to this argument. We are bound by the record before us. The affidavit is unrebutted, and the legal sufficiency of the affidavit was not challenged in the trial court or in this court. Consequently, it is part of the record for our consideration, and we may not ignore it. (See Healy v. Owens-Coming Fiberglass (1989), 187 Ill. App. 3d 182, 543 N.E.2d 110; Miller v. St. Charles Condominium Association (1986), 141 Ill. App. 3d 834, 491 N.E.2d 125.) We note that two other documents, a memorandum from Goldsberry to the defendant’s general counsel and a letter from Goldsberry to outside counsel, were not discoverable, the letter on the ground that it discussed settlement. The letter, at least, gives rise to some inference that Goldsberry participated and contributed to settlement discussions. We judge, therefore, based on the record before us, that the defendant submitted sufficient proof to establish that Goldsberry was part of the control group and that the Goldsberry memorandum was protected by the attorney-client privilege. In so doing, we do not mean to say that the sufficiency or the accuracy of affidavits such as that of Sandra Jones may not be tested in the trial court before a judge rules on whether information is discoverable. The extent to which Goldsberry participated in the decision-making process, the nature of her opinions, although not the specific opinions themselves, and the weight given her opinions should themselves be subject to inquiry.

We turn now to the question of whether the work-product doctrine is applicable. The Illinois work-product doctrine is narrower than the Federal work-product doctrine. Under the Federal rules, all work performed by an attorney or his agent in anticipation of litigation is protected from discovery. (See Fed. R. Civ. R 26(b)(3).) In Illinois, however, only “opinion work product,” matter which discloses the theories, mental impressions or litigation plans of a party’s attorney, is protected from discovery. See 134 Ill. 2d R. 201(b)(2).

In Monier v. Chamberlain (1966), 35 Ill. 2d 351, 221 N.E.2d 410, the Illinois Supreme Court defined work product as only those documents “which reveal the shaping process by which the attorney has arranged the available evidence for use in trial as dictated by his training and experience.” (35 Ill. 2d at 359-60.) The doctrine applies not only to documents prepared by an attorney, but also to documents prepared by the attorney’s agent or investigator. See United States v. Nobles (1975), 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160.

The precise issue before us was before the supreme court in Consolidation Coal:

“We consider today whether counsel’s notes and memoranda of employees or witnesses’ oral statements which are not verbatim and are not reviewed, altered, corrected, or signed by these individuals are protected work-product.” Consolidation Coal, 89 Ill. 2d at 109.

The defendant in Consolidation Coal refused to produce various memoranda and notes of interviews with witnesses prepared by in-house counsel. The supreme court conducted its own in camera examination of the documents (as we did here) and recognized that the notes represented a mixture of factual material and the attorney’s work product in the form of his conclusions, characterizations and summaries. The court expressed strong disapproval of imposing on trial courts the burden of reviewing voluminous material and sifting from the material what is discoverable and what is not discoverable. The court concluded, “Accordingly we hold that attorneys’ notes and memoranda of oral conversations with witnesses or employees are not routinely discoverable.” 89 Ill. 2d at 110.

The court recognized, however, that in some instances the attorney’s notes might constitute the only source of certain facts, and, therefore, it created an exception to the absolute exemption otherwise granted to opinion work product in Illinois. The court held that if an attorney’s notes contain a mixture of unprivileged factual material and privileged opinion work product, the notes will be subject to discovery only if a party can show that it is absolutely impossible to secure the factual information from other sources. 89 Ill. 2d at 110-11.

Goldsberry’s memorandum is the equivalent of the attorney’s notes in Consolidation Coal. The memorandum contains summaries of Goldsberry’s conversations with witnesses; however, it does not contain any of the witnesses’ verbatim statements. It was not reviewed, adopted, altered or signed by any of the witnesses. Therefore, in accordance with Consolidation Coal, the memorandum is protected by the work-product privilege unless the plaintiff can show that it is impossible to obtain the factual information contained in the memorandum from any other source. The plaintiff has not made such a showing; the plaintiff’s attorney admitted at oral argument that he had the names and addresses of all of the witnesses interviewed by the defendant and that he could depose any or all of those witnesses himself.

We disagree with the plaintiff that Sakosko v. Memorial Hospital (1988), 167 Ill. App. 3d 842, 522 N.E.2d 273, requires a different conclusion. In that case the documents in question were letters from the defendant’s risk management consultant to the defendant’s risk manager discussing what transpired at meetings of the defendant’s risk management committee. The appellate court held that the documents were not subject to the work-product privilege because they did “not contain or disclose any theories, mental impressions or litigation plans” but instead were “factual statements relating to plaintiffs’ medical conditions or prognoses.” (167 Ill. App. 3d at 847.) We note that the trial judge in SaJcoslco redacted certain material, and we emphasize that the documents were not summaries of oral statements of witnesses. We also note that the Sakosko court did not mention Consolidation Coal.

Under the compulsion of Consolidation Coal, therefore, we judge that the memorandum of Goldsberry is protected from discovery by the work-product privilege and the attorney-client privilege and that the court erred in the judgment of contempt against the defendant.

For future guidance, we would add a word of caution to the defendant. The defendant’s statement that its answers to interrogatories included the names of all persons that Goldsberry had interviewed is not completely accurate. The document included summaries of interviews with nurses and doctors and the daughter and husband of the deceased. The daughter and husband were not named in the answers to interrogatories. We are hard-pressed to conjure up a justification for the invocation of privilege in the case of statements made by the deceased’s daughter or husband. However, Consolidation Coal made no distinction between witnesses, and the broad holding of Consolidation Coal does not, in our judgment, permit an intermediate reviewing court to create another exception to its holding. Nonetheless, we judge that, if the daughter or husband testifies, the defendant should be barred from any attempt to impeach them from statements made to Goldsberry unless the defendant makes the relevant portions of Goldsberry’s memorandum available to the plaintiff before the daughter or husband testifies. (Cf. United States v. Nobles (1975), 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160.) If any of the other persons named in the memorandum testifies and the defendant seeks to impeach him with Goldsberry’s testimony, the defendant’s work-product privilege and the attorney-client privilege shall be deemed waived with respect to that witness, and the defendant may be required to turn over to the plaintiff any portion of the reports relevant to cross-examining Goldsberry. See People v. Grier (1980), 90 Ill. App. 3d 840, 413 N.E.2d 1316.

Judgment reversed.

RAKOWSKI, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    IN DO KIM, Independent Adm’r of the Estate of Seoung Jong Kim, Plaintiff-Appellant, v. STANDARD MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    First District (6th Division)
    No. 1—90—1912
    Opinion filed April 26, 1991.
    Burton R. Lindner, of Chicago, for appellant.
    Leahy, Eisenberg & Fraenkel, Ltd., of Chicago (Alfred S. Vano, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, In Do Kim, independent administrator of the estate of Seoung Jong Kim, filed an action against defendant, Standard Mutual Insurance Company, seeking a declaration that plaintiff was entitled to uninsured motorist coverage under the policy issued by defendant to plaintiff. The circuit court of Cook County granted summary judgment in favor of defendant, and plaintiff appeals.

The following facts were stipulated to by the parties. Plaintiff is the named insured under an automobile policy issued by defendant for two vehicles. The limit of liability for each vehicle was $25,000 per individual, $50,000 per occurrence. Seoung Jong Kim, plaintiff’s son, was also insured under plaintiff’s insurance policy. Seoung Jong Kim was killed as a result of a motor vehicle accident in which he was a passenger in an automobile driven by Simon Edward Trice. Trice was uninsured at the time of the occurrence. Steven L. Miller was the operator of the other motor vehicle. Miller’s insurance company, State Farm, paid $20,000 to deceased’s estate as a result of the accident.

On June 8, 1989, plaintiff brought this action asking the court to determine the amount of coverage available under the terms of the policy. Plaintiff also requested the court to find the provisions of the uninsured motorist endorsement to be in violation of section 143a(l) of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 755a(1)) because it is contrary to public policy. The excess-escape clause in the policy provides:

“7. Other insurance. With respect to bodily injury to an insured while occupying an automobile not owned by the principal named insured, the insurance under this endorsement shall apply only as excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance, and this insurance shall then apply only in the amount by which the limit of liability for this coverage exceeds the applicable limit of liability of such other insurance.
Except as provided in the foregoing paragraph, if the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.”

On February 13, 1990, plaintiff filed his motion for summary judgment pursuant to section 2 — 1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005). Plaintiff argued that as a matter of public policy, the law intended that a policyholder should be placed in substantially the same position he would occupy if the negligent driver had the minimum liability insurance required by the financial responsibility act. (Ullman v. Wolverine Insurance Co. (1970), 48 Ill. 2d 1, 269 N.E.2d 295.) Plaintiff contended that he should have been able to collect the total insurance proceeds available ($50,000) had both drivers involved in this accident carried insurance ($25,000 from Miller and $25,000 from Trice). Plaintiff conceded that defendant is entitled to a $20,000 setoff for the amount collected under the Miller policy in order to avoid any question of double recovery, but that an additional $30,000 of insurance proceeds should be available to him.

The court denied plaintiff’s motion for summary judgment and made an express finding limiting defendant’s liability to the difference between $25,000 in uninsured motorist coverage and $20,000 paid by State Farm as other coverage available to plaintiff from a joint tortfeasor. Plaintiff filed a motion for reconsideration of the court’s order denying summary judgment.

On May 18, 1990, defendant filed its motion for summary judgment, arguing that the “other insurance” clause clearly and unambiguously states that where the insured has other insurance available to him, the damages shall be limited to the amount of the uninsured motorist coverage. The court denied plaintiff’s motion for reconsideration and granted summary judgment in favor of defendant.

On appeal, plaintiff contends that he should be allowed to recover the total available amount of uninsured motorist coverage under defendant’s policy in the sum of $50,000. He argues that the excess-escape clause is inapplicable because the Trice vehicle had no insurance coverage; thus, defendant’s policy should be required to provide the policy coverage attributable to the Trice vehicle subject only to setoff of the $20,000 provided by State Farm.

A motion for summary judgment is proper where the documents on file show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) In reviewing the order for summary judgment, this court must consider all of the facts revealed in the record and all of the grounds alleged by the parties in order to determine whether a genuine issue as to a material fact exists. (Casteel v. Smith (1982), 109 Ill. App. 3d 1094, 441 N.E.2d 860.) Where the matter at issue may be decided as a question of law, summary judgment is a proper remedy. Timm v. Indian Springs Recreation Association (1989), 187 Ill. App. 3d 508, 543 N.E.2d 538.

In this case, we find that the trial court correctly determined that the uninsured motorist coverage was available to plaintiff and that recovery is limited to $5,000 (representing the difference between the $25,000 in uninsured coverage provided under defendant’s policy and the $20,000 paid by State Farm as coverage available to plaintiff from a joint tortfeasor). It is well established that Illinois courts have upheld the validity of excess-escape provisions in insurance policies where policies issued to different insureds were involved. Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 377 N.E.2d 62, citing Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, 269 N.E.2d 97.

Plaintiff has not alleged, nor do we find,. that the excess-escape clause is ambiguous. Indeed, contract language nearly identical in form to the clause at issue in the present case (wherein the first paragraph contains an excess-escape clause followed by the second paragraph commonly known as a “pro-rata” clause) has been found to be a valid limitation of liability. Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, 269 N.E.2d 97; Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 377 N.E.2d 62.

Plaintiff’s reliance on Johnson v. American Family Mutual Insurance Co. (1990), 193 Ill. App. 3d 794, 550 N.E.2d 668, is misplaced. Johnson involves interpretation of the underinsured motorist statute rather than the uninsured motorist statute at issue here.

Accordingly, we find that summary judgment was properly granted in defendant’s favor. Where the only issue concerns the construction of an insurance contract, the cause may properly be decided by summary judgment. Giardino v. American Family Insurance (1987), 164 Ill. App. 3d 389, 517 N.E.2d 1187.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

RAKOWSKI, P.J., and EGAN, J., concur.


author: JUSTICE BUCKLEY

text:
    ARLENE BOGOVICH, Indiv. and as Adm’r of the Estate of Zlatko Bogovich, Deceased, Plaintiff-Appellant, v. NALCO CHEMICAL COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 1—90—1125
    Opinion filed April 29, 1991.
    Peraica & Della Rose, P.C., of Chicago (Anthony J. Peraica, of counsel), for appellant.

      Sanchez & Daniels, of Chicago (Manuel Sanchez, Lori S. Yokoyama, and Daniel A. Celske, of counsel), for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Arlene Bogovich, individually and as administrator of the estate of Zlatko Bogovich, deceased (plaintiff), appeals from an order of the circuit court of Cook County which granted defendant Nalco Chemical Company’s motion for summary judgment on the ground that the vehicular collision between decedent’s vehicle and defendant’s parked truck was not proximately caused by defendant’s alleged negligence. Plaintiff’s sole contention on appeal is that summary judgment was improperly granted because the undisputed facts create a triable issue on the element of proximate cause. We affirm.

The undisputed facts show that on November 5, 1987, between 6 and 7 p.m., the deceased was driving a 1978 Malibu stationwagon east on 65th Street in Bedford Park, Illinois. Sixty-fifth Street is an east-west street with two lanes of traffic in each direction; a median strip one inch high separates opposing traffic. Defendant’s semi-trailer truck was parked facing west on the median, one foot off the street, and was not interfering or obstructing traffic in either direction. The truck’s parking lights were activated and the driver’s compartment was unoccupied.

What happened next is described by Lillian Warrington, the only eyewitness, and Robert Weslowski, a paramedic who arrived at the scene shortly after the accident. Warrington testified at her deposition that just prior to the accident, she was proceeding east on 65th Street about four to five blocks behind decedent’s automobile. The street was well lit and she had a clear and unobstructed view. She observed decedent’s automobile make a sharp turn from the right-hand lane in which it was travelling and proceed across the left-hand lane and into the median strip where it collided with defendant’s parked vehicle. Decedent did not at any time signal that he was going to make a turn.

Weslowski testified in his deposition that decedent told him that he passed out before the collision and does not remember anything prior to its occurrence. Police officers called to the scene issued no traffic citation to defendant. The deceased received an improper lane usage citation; however, upon his death, the citation was voided.

On August 3, 1988, plaintiff filed her complaint against defendant. alleging that defendant breached its duty of care to decedent by: (1) operating a vehicle on a public highway not designed for such use and without proper registration; (2) failing to keep a proper lookout; and (3) abandoning or parking a vehicle in violation of Illinois motor vehicle laws. On April 11, 1990, the circuit court granted defendant’s motion for summary judgment on the issue of proximate cause. While the transcript of the summary judgment proceeding is not in the record, the circuit court apparently adopted defendant’s argument that decedent’s loss of consciousness was the sole proximate cause of the collision.

To recover in negligence actions, a plaintiff must establish that defendant owed a duty to plaintiff and that the breach of this duty proximately caused the injuries of which plaintiff complains. (Merlo v. Public Service Co. (1942), 381 Ill. 300, 312, 45 N.E.2d 665, 673.) While the element of proximate cause is ordinarily a question of fact for the jury (Kinsch v. Di Vito Construction Co. (1964), 54 Ill. App. 2d 149, 155, 203 N.E.2d 621, 624), summary judgment is proper where the facts are undisputed and there is no difference in the judgment of reasonable men as to the inferences to be drawn. Merlo, 381 Ill. at 318, 45 N.E.2d at 675.

Proximate cause has been defined as that cause which, in natural or probable sequence, produces the complained-of injury. (Kinsch, 54 Ill. App. 2d at 154, 203 N.E.2d at 624; see also Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1990).) An injury follows in a natural or probable sequence from the acts in question if an ordinary prudent person ought to have foreseen that some injury might occur, although the precise injury which in fact occurred need not have been foreseen. Kinsch, 54 Ill. App. 2d at 154-55, 203 N.E.2d at 624.

In this case, plaintiff contends that summary judgment was improper because if defendant’s heavy-duty vehicle had not been parked on the median, plaintiff would have possibly struck a substantially smaller vehicle, the curb, or the other side of the street, thereby causing less significant injuries. Plaintiff further asserts that defendant’s negligence in (1) straddling the median with an off-road, unlicensed vehicle in violation of Illinois motor vehicle laws, and (2) operating on a public roadway a truck neither designed by the manufacturer for such use nor permitted under Illinois law was a proximate cause of decedent’s injuries.

Plaintiff principally relies on Kinsch (54 Ill. App. 2d 149, 203 N.E.2d 621) to support her assertions. In Kinsch, defendant temporarily deposited a 10-ton cement block measuring four by eight feet and eight inches thick along the south side of Golf Road approximately three to four feet from the edge of the street. The block remained in that location for two to four weeks and was unaccompanied by any warning lights or signs. No public lighting existed in the vicinity. In the early morning hours of October 1956, plaintiff was travel-ling about 30 to 35 miles per hour in very foggy conditions with his headlights on, but could not see more than five feet ahead of his car. Plaintiff lost control of his vehicle, entered the shoulder area and struck the block.

In affirming the jury verdict in favor of plaintiff, the court addressed the issue of whether defendant’s negligence proximately caused plaintiff’s injuries. In finding causation to exist, the court stated:

“We think that there is sufficient evidence to support the jury’s conclusion that the defendant’s negligence was the proximate cause of the injuries. It is common knowledge that careful drivers must occasionally use the shoulder of a road as a part of the public highway in emergency and other situations. We think that any prudent man would foresee that by placing a massive obstruction on the shoulder of a road within 3 or 4 feet of the edge of the roadway, without illuminating it or erecting signs warning of its presence, injury might result to those who, in emergency situations or otherwise, might stray from the roadway itself onto the shoulder.” Kinsch, 54 Ill. App. 2d at 155, 203 N.E.2d at 624.

We find Kinsch distinguishable from the present case. While in Kinsch, a difference in the judgment of reasonable persons exists as to the inferences to be drawn from the facts, no such difference exists as to the facts in this case. First, in Kinsch, motorists were given no warnings of the existence of the cement block. This lack of warnings was aggravated by the weather conditions. On the night of the collision, fog precluded vision. In this case, the prevailing weather conditions did nothing to obscure the truck; it was readily observable due to its size, location, and flashing warning lights. Second, in Kinsch, the block had been present for a considerable period and was located a mere few feet from the edge of the street on the shoulder. The location of the block, the length of time it was so located, and the lack of warnings made it reasonably foreseeable that a motorist would slightly stray onto the shoulder and collide with the block in the normal course of everyday travel, which assumes occasional bad weather. In other words, in Kinsch, the harm that ultimately transpired was within the scope of risk initially created. Here, in contrast, defendant’s truck was temporarily parked, highly visible, and had its warning lights activated. These factors, while providing a condition by which an injury was made possible, did not combine to make defendant’s conduct a proximate cause of the collision, which transpired when decedent unforeseeably lost control of his vehicle due to unconsciousness. As our supreme court stated in Merlo:

“*** [I]f the negligence charged does nothing more than furnish a condition by which the injury is made possible and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury.” Merlo, 381 Ill. at 316, 45 N.E.2d at 675.

A more factually analogous case than Kinsch is Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 467 N.E.2d 1153. In Long, the appellate court ruled that the placement of defendant’s vehicle was not a proximate cause of a subsequent collision as a matter of law. There, defendant Soderquist had parked his vehicle on the shoulder of an icy road near the crest of a hill for the purpose of rendering assistance to defendant Berndston, whose vehicle had struck the guardrail. Soderquist’s vehicle had its tail lights on, but extended into the road approximately one foot due to an incomplete shoulder. As plaintiff’s vehicle crested the hill, plaintiff lost control on the ice and struck defendant Soderquist’s vehicle. In affirming defendants’ summary judgment motions, the appellate court found crucial the evidence that plaintiff could have done nothing different to avoid the collision even if he had known of the presence of defendants’ vehicles. Long, 126 Ill. App. 3d at 1064, 467 N.E.2d at 1156.

Consistent with Long is Sheehan v. Janesville Auto Transport (1981), 102 Ill. App. 3d 507, 430 N.E.2d 131. In Sheehan, plaintiff’s vehicle collided with defendant’s truck when plaintiff swerved from the center lane into the curb lane where the truck was parked in an attempt to avoid a collision with an oncoming vehicle that had crossed the center line. On appeal from the circuit court’s grant of defendant’s motion for summary judgment, the plaintiff contended that a genuine issue of material fact existed as to whether defendant’s illegally parked, unilluminated truck was a proximate cause of the collision. In affirming the circuit court, the appellate court held that defendant’s vehicle, even if parked illegally, had nothing to do with the collision because the two moving vehicles acted independently to cause the collision. Sheehan, 102 Ill. App. 3d at 511, 430 N.E.2d at 133; see also Wuebbles v. Shea (1938), 294 Ill. App. 157, 13 N.E.2d 646 (reaching same conclusion under a similar factual setting).

In conclusion, we find that in accordance with Illinois case law, decedent’s loss of consciousness and subsequent loss of vehicular control operated as an unforeseeable, independent act which relieved defendant of any liability for its alleged negligent conduct, including the alleged statutory violations. To hold otherwise would charge motorists with the impossible duty of protecting against the unforeseeable loss of consciousness of fellow motorists.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE SCARIANO

text:
    PARKWAY BANK AND TRUST COMPANY, as Trustee, et al., Plaintiffs-Appellants, v. ELMER F. GLEICH, Defendant-Appellee.
    First District (2nd Division)
    No. 1—88—1747
    Opinion filed April 30, 1991.

      Michael A. Braun, of Braun & Rivkin, Ltd., of Chicago, for appellants.
    James S. Gordon and Edward Slovick, both of Chicago, for appellee.
   PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs brought this action seeking damages from defendant for breach of a contract to purchase certain property held in a land trust. They appeal from an order of the circuit court granting summary judgment to defendant.

Plaintiff Charles P. Burtell was the sole general partner of Algonquin 33 Investment, an Illinois limited partnership, which was the beneficiary of two Illinois land trusts, Nos. 4297 and 4298, of which plaintiff Parkway Bank and Trust Company (Parkway) was the trustee. The trusts contained 72 parcels of vacant land, which were the subject of the contract in dispute in this case; trust No. 4298 contained only a small portion of three of those lots. Pursuant to the provisions of the trust agreement, “Charles P. Burtell, General Partner” had the sole power to direct the trustee to sell or otherwise deal with the property.

During May or June of 1980, defendant Elmer F. Gleich, through Carl Kristensen, a real estate broker, began negotiating for the purchase of the property with Eugene Purcell, Burtell’s agent and employee. The parties agreed on the essential terms of the transaction and on July 12, 1980, reduced them to writing in a commonly used real estate contract form produced by Kristensen. That same day Gleich signed the contract, executed a check for $20,000 made payable to Kristensen as earnest money, and gave both the contract and the check to Kristensen. Parkway, as trustee, was designated as the seller in the contract.

On July 13, 1980, Kristensen prepared a rider to the contract at Gleich’s request, permitting Gleich to use certain black dirt located on the property. Kristensen signed the rider on behalf of and at the request of Gleich and forwarded both the original signed contract and rider to Purcell.

On or about July 17, 1980, Burtell signed the contract and rider. Next to the printed word “Seller” in that portion of the instrument provided for signatures there is typewritten: “Parkway Bank and Trust Company Trust No. 4297” and, on the next line, “Beneficiary:” followed by Burtell’s signature. Two days later, the signed contract and rider were delivered to Gleich, who according to plaintiffs’ complaint, authorized Kristensen to open the escrow required by the contract to hold his earnest money deposit. Defendant disputes that he authorized the deposit, relying on Kristensen’s affidavit, in which Kristensen states that he deposited the $20,000 in his trust account “without the direction of any party including Elmer Gleich.” Nevertheless, Gleich does not appear to have objected to the deposit.

The closing of the first stage of the transaction was scheduled to occur on August 15, 1980. Burtell, exercising his power of direction, caused all of the necessary documents to be prepared and executed by Parkway, including its trustee’s deed to 16 lots which Gleich had designated as the first “take-out” group. Burtell also ordered and caused to be delivered to Gleich a commitment for title insurance dated July 31, 1980, covering the 16 lots. Plaintiffs allege that after receiving the title commitment, Gleich told Kristensen to change the name of the proposed insured from himself to Gleich Construction Company, which Burtell’s attorney did.

According to Kristensen, shortly before the closing, Gleich suffered a mild heart attack, after which he called Kristensen and told him: “I cannot go ahead with the property. You can keep the $20,000.” The record is not clear as to whether this information was communicated to Burtell. At any rate, on August 15, 1980, Burtell and his attorney attended the closing, but neither Gleich nor his representative appeared. Soon thereafter, Gleich sent Parkway a letter, “Attention: Charles Burtell,” dated August 13, 1980, stating that he “wish[ed] to terminate this contract.” Later, Burtell received a second letter from Gleich, prepared by his attorney, declaring that there had never been a contract in the first place “because of failure by Parkway Bank and Trust Company to properly execute and deliver a duplicate original of the Real Estate Sale Contract to me.”

On August 28, 1980, plaintiff filed a complaint against Gleich seeking specific performance and damages for material breach and anticipatory repudiation of the contract. In the long course of this litigation, plaintiffs filed an original and three amended complaints, eventually abandoning their allegation of anticipatory breach and prayer for specific performance and adding an alternative theory of “ratification.” Count I of the third amended complaint, filed June 2, 1988, was based on material breach of contract. Count II alleged that even if Burtell as beneficiary could not accept Gleich’s offer to purchase the property from the trustee, once it was signed by Burtell and delivered to Gleich, Gleich “ratified” the contract by his actions and deeds which were consistent with the existence of a binding contract.

Each of the parties ultimately filed cross-motions for summary judgment. After hearing lengthy argument and considering a vast amount of documentary evidence, Judge Lester Foreman denied both parties their motions; and after hearing further argument and reviewing the record, Judge Thomas Hoffman also denied plaintiffs’ amended motion for summary judgment. The judges’ main concern in both proceedings was held to be the existence of an outstanding issue of fact: whether by their conduct the parties- intended to enter into a binding contract.

On June 3, 1988, after the case was set for trial, Gleich filed a motion for summary judgment based on plaintiffs’ third amended complaint which had been filed only the previous day. The court heard the parties’ extensive arguments on the same day. Gleich contended that no contract came into existence for the reason that (1) Burtell as beneficiary had no power to accept Gleich’s offer to buy the property because the legal titleholder and designated seller in the offer was the trustee, Parkway; (2) even if the beneficiary could sell the property, Burtell could not, because the beneficiary of the trust was a limited partnership, and Burtell signed the offer in his individual capacity rather than in his capacity as general partner; (3) as to the issue of ratification, Gleich argued that the contract was void and thus incapable of being ratified; (4) furthermore, to the extent that Burtell’s signature constituted a counteroffer, Gleich did not sign or initial it; therefore, the purported transaction did not comply with the Statute of Frauds.

Plaintiffs argued that the parties entered into a binding contract because (1) Burtell as beneficiary with the sole power to direct the trustee to sell was ready, willing and able to cause title to the property to be conveyed, i.e., to perform the seller’s obligation under the contract; thus, his signature was sufficient to create a binding agreement; (2) Burtell had the authority to bind the partnership to the agreement because he possessed the sole power of direction both as general partner and in his own name and because he actually exercised this power in accordance with Gleich’s request in connection with the latter’s designation of the first 16 of the lots to be conveyed; (3) the “substantial” negotiations between Burtell’s agent and Kristensen, acting on behalf of Gleich, showed Gleich’s willingness to deal with Burtell, rather than with the trustee; (4) the negotiations dealt with substantive matters under the proposed agreement rather than the method of conveying title; and (5) Gleich acted consistent with the existence of a contract when he designated the lots for the first “take-out,” a buyer’s right, and changed the grantee’s name on the commitment for title insurance from “Gleich” to “Gleich Construction Company,” all of which occurred after Burtell had signed the contract and had it returned to Gleich.

Judge Paul Elward granted summary judgment in favor of Gleich, stating:

“THE COURT: There was no contract. There was a material alteration. There was a counteroffer. It was not accepted.
MR. BRAUN: You ground [sic] that Mr. Gleich did not accept it by work [sic], deed or otherwise?
THE COURT: That’s correct, sir. That’s a fair statement and you’re entitled to have it.”

While in a conventional trust the trustee holds the legal title and the beneficial owner holds the equitable title, in an Illinois land trust, both legal and equitable title rest in the trustee, and the beneficiary retains only a personal property interest. Paine/Wetzel Associ ates, Inc. v. Gitles (1988), 174 Ill. App. 3d 389, 393; First National Bank of Barrington, Trust No. 11-1317 v. Oldenburg (1981), 101 Ill. App. 3d 283, 286-87.

“In contrast to a conventional trust, however, the Illinois land trust gives the beneficiary full and complete control over the management, use, and disposition of the property, just as if he had legal title.” (Haswell & Levine, The Illinois Land Trust: A Fictional Best Seller, 33 De Paul L. Rev. 277, 278; see also Fried v. Barad (1988), 175 Ill. App. 3d 382; Southeast Village Associates v. Health Management Associates, Inc. (1981), 92 Ill. App. 3d 810, 812.) During the life of the land trust, the trustee can act only upon the direction of the beneficiary. (Robinson v. Chicago National Bank (1961), 32 Ill. App. 2d 55, 58.) The trustee’s role is thus reduced to that of a nominee or bare titleholder. Moreover, it is undisputed that the trustee does not clear title if necessary to make it merchantable; that, in fact, it performs none of the contractual undertakings of the seller; and that it universally inserts a disclaimer of any liability on its part whenever it signs any document relating to the trust and which the holder of the power of direction orders it to sign.

The unique arrangement between the trustee and the beneficiary is created through the use of two instruments. The deed in trust, which conveys the legal title of the realty to the trustee, is filed for record as evidence of the trustee’s title to the property. It does not identify the beneficiary or describe the terms of the trust. The trust agreement, executed contemporaneously with the deed in trust, outlines the right of the beneficiary to retain absolute control over the property through the power of direction over the trustee and his rights to possess, control, manage, and receive all proceeds from the property. The trust agreement is not recorded and is normaUy kept secret from the public. Haswell & Levine, 33 De Paul L. Rev. at 279.

Plaintiffs request us to reverse the trial court’s decision to grant summary judgment to defendant, contending that certain triable issues of fact remain outstanding. Gleich maintains, however, that the outcome of this case is controlled by Schneider v. Pioneer Trust & Savings Bank (1960), 26 Ill. App. 2d 463. Declining “to expand the term ‘offeree’ to include anyone who had the power to bring about the result contemplated in the offer,” Schneider, after a trial on stipulated facts, held that the beneficiary of an Illinois land trust with the sole power of direction may not accept an offer to purchase addressed to the trustee, because “[t]he offeror has the right to choose the person with whom he deals,” and that “[t]o constitute a contract by offer and acceptance, the acceptance must conform exactly to the offer.” (26 Ill. App. 2d at 465-66.) There the beneficiary accepted the offer as the “owner, by written notation thereon.” (26 Ill. App. 2d at 465.) The court reasoned that a beneficiary who wishes to reap the benefits of an Illinois land trust must observe “the form of the trustee’s ownership.” 26 Ill. App. 2d at 466.

Several cases decided after Schneider have, however, steadily eroded its prodigally stated doctrine. For example, in Madigan v. Buehr (1970), 125 Ill. App. 2d 8, 260 N.E.2d 431, the court held that the beneficiary of a land trust could not enforce a contract if she attempted to enter the contract as an outright owner of the property, but could do so if she disclosed her status as a beneficiary, because of her absolute authority to direct the trustee to dispose of the property. Similarly, Lampinen v. Hicks (1979), 73 Ill. App. 3d 376, Jacobs v. Carroll (1977), 46 Ill. App. 3d 74, and House of Realty, Inc. v. Ziff (1972), 9 Ill. App. 3d 419, held that as long as the beneficiary does not attempt to pass himself off as the legal titleholder in the transaction, he has the power to contract.

In Oldenburg, as in this case, the seller designated in the contract was the trustee, and the following appeared in the space provided for the signature of the seller: “Trust No. 11-1317 First National Bank of Barrington, Byron N. Cohen, agent for L. G. Langpop, beneficiary.” Langpop was one of three beneficiaries of the trust, and he shared the power of direction with one of the other beneficiaries. Thereafter, because the purchasers were being transferred out of the area, they sought to cancel the agreement and recover their earnest money deposit. To that end they entered into negotiations with Langpop’s agent, Cohen, and when they could not reach a settlement, Cohen, an attorney, filed suit in behalf of the trustee against the purchasers. The trial court, although reluctant to do so, felt bound to follow Schneider, and entered summary judgment in favor of the defendants, holding that the contract was invalid and unenforceable. The appellate court, concluding that “Schneider does not control the facts at hand,” reversed. After addressing “the basic nature and substance of an Illinois land trust agreement and the powers accorded a beneficiary of such trust,” the court continued: “[ajlthough it has been stated that the beneficiary of a land trust can neither contract to sell real estate nor accept an offer to purchase it [citations], it has also been observed that this broad declaration of the law does not find support in the cases cited as authority for the proposition [citation]. *** [A] beneficiary of a conventional land trust may enter into a valid contract to convey title to the trust property, when acting in his capacity as beneficiary, if the trust agreement vests in him the sole right to direct the trustee to convey title. [Citing Madigan, 125 Ill. App. 2d 8, 260 N.E.2d 431, among other cases].” (Oldenburg, 101 Ill. App. 3d at 286-87.) “The mere listing in the contract of the trust, or trustee, as the offeree does not preclude this court from recognizing, based on the conduct and dealings of the parties prior to and subsequent to the formation of the contract, that the beneficiaries were the actual offerees.” (Emphasis added.) Oldenburg, 101 Ill. App. 3d at 289.

In Fried, Page v. Fosco (1980), 90 Ill. App. 3d 1113, and Rizakos v. Kekos (1977), 56 Ill. App. 3d 404, the seller-beneficiary was estopped from avoiding the sale of real estate based on his voluntary nondisclosure of his beneficiary status. In Farley v. Roosevelt (1978), 67 Ill. App. 3d 700, the court held that by signing an option contract, the beneficiary became obligated to direct the trustee to convey the subject property and could not use its beneficiary status as an affirmative defense. In Paine/Wetzel Associates, Inc. v. Gitles (1988), 174 Ill. App. 3d 389, the court, in relying on Madigan and Oldenburg, held that as long as the trust agreement gives the beneficiary of an Illinois land trust the sole power of direction over the disposition of the trust res, the beneficiary can encumber the property with a lien. The beneficiary in Paine/Wetzel could not avoid foreclosure of the lien merely because he did not hold legal or equitable title to the subject property. While Rizakos, Page, Farley, and Paine/Wetzel required beneficiaries to perform at the suit of purchasers or lien holders, they have been held to be persuasive authority in support of the conclusion reached in Oldenburg. (Oldenburg, 101 Ill. App. 3d at 291.) Plaintiffs in the present case also argue plausibly that under the doctrine of mutuality of obligation, if Burtell was bound as a beneficiary, Gleich was equally bound.

Plaintiffs urge this court to decline to follow Schneider because it “pay[s] unwarranted homage to the form of the land trust without considering the reality of the substance of the sales transaction.” Plaintiffs point to authority that a person may contract to sell land without having title at the time of the transaction because it is the promise to convey title at closing that is at the crux of the contract. (Beilin v. Krenn & Dato, Inc. (1932), 350 Ill. 284; White v. Bates (1908), 234 Ill. 276. See also Fried: “ ‘The object of courts of equity, as well as courts of law, is the enforcement of contracts rather than their evasion, and where a valid contract exists for a sale of land a court of equity will enforce it as a matter of right where it was fairly and understandingly entered into and no circumstances of oppression and fraud appear.’ In re Estate of Frayser (1948), 401 Ill. 364, 371-72, 82 N.E.2d 633.” Fried, 175 Ill. App. 3d at 390.) It is to be noted also that “[ejvery contract implies good faith and fair dealing between the parties to it.” (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 286; First National Bank v. Sylvester (1990), 196 Ill. App. 3d 902, 910.) Gleich does not dispute that Burtell was able to tender a proper deed at closing; in fact, well before Gleich gave notice of termination, Burtell gave the trustee a written “Direction to Convey” the property to the grantee, which the trustee honored by properly executing the deed required by the contract.

It is often said that the offeror is the master of his offer; however, applied blindly and mechanically, this principle fails to accommodate the realities of dealing with the unique legal creature of the Illinois land trust. The principal objective of this manner of holding real property is the secrecy in which the de facto ownership and the power of direction are held; another advantage is the simpler method of transfer it affords, especially in the case of multiple beneficiaries. A host of other advantages the device offers are enumerated in Haswell & Levine, The Illinois Land Trust: A Fictional Best Seller, 33 De Paul L. Rev. 277, 285-87.

Contrary to the court’s ruling in Schneider, to hold that the beneficiary of an Illinois land trust who possesses the right to direct the trustee to deal with the property has the power to accept an offer addressed to the trustee would conform the term “offeree” to the realities of the Illinois land trust arrangement, for the holder of the power of direction is indeed the only entity with “the power to bring about the result contemplated in the offer.” (See Schneider, 26 Ill. App. 2d at 465.) Where the beneficiary is willing to forego the anonymity he enjoys by virtue of the terms of the trust agreement, there is no reason to prevent him from disposing of the trust res. Furthermore, to so hold would still preserve the legal structure of the trust, because the beneficiary would still be obligated by his signature to direct the trustee to convey title. See Farley, 67 Ill. App. 3d 700.

Indeed, by signing the contract in the instant case, Burtell bound himself by its very terms “to convey or cause to be conveyed” the subject property, a clause deemed to be of virtually insurmountable significance in Oldenburg, House of Realty, Lampinen, Madigan, Rizakos, and others. (Emphasis added.)

“[I]t cannot be said that a beneficiary can never contract to sell the trust property. He may do so under appropriate circumstances, not because he has power to convey title or to execute a deed, or because he is the agent of the trustee or stands in its stead, but because the trust agreement gives him ‘control of the selling’ and the right to direct the trustee to convey title to whomever he designates. Since he has the power to designate conveyance he may contract to exercise that power. If the sales contract is one in which this power is explicitly exercised, or if it is one which, because of the disclosure of the trust and the beneficiary’s status, can be construed as exercising this power, the contract is enforceable against both the beneficiary and the purchaser. To permit the beneficiary to contract in this manner does not encroach upon the jurisdiction of the trustee nor its functions; it does not infringe upon the protection afforded a purchaser who deals with the trustee, nor does it expand the beneficiary’s liability or change his status. His legal interest in the trust remains personal property; but allowing him to climax negotiations for the sale of the real estate by agreeing to have it conveyed removes some of the make-believe which hovers over land trusts and permits a realistic approach to the disposition of trust property.” (Emphasis added.) Madigan, 125 Ill. App. 2d at 16-17.

The above-quoted language from Madigan has been cited approvingly and relied upon, among other cases, in Lampinen (73 Ill. App. 3d at 378); Jacobs (46 Ill. App. 3d at 79-80); Rizakos (56 Ill. App. 3d 404); Page (90 Ill. App. 3d at 1115-16); Oldenburg (101 Ill. App. 3d at 289-90); and House of Realty (9 Ill. App. 3d at 421-22). In House of Realty, “the court held that the seller-beneficiary could enforce the contract because she had styled herself as beneficiary in the contract, thereby demonstrating to all concerned that she was not dealing with the property as the legal title holder, and, more importantly, because she had contracted expressly to ‘cause title to be conveyed,’ thereby obligating herself to effect a transfer of title.” Oldenburg, 101 Ill. App. 3d at 291.

As noted earlier, two circuit court judges successively declined to award summary judgment to either side, each judge concluding that it remained to be decided by the trier of fact whether the parties, by their conduct, intended to enter into a binding contract. Thereafter, on the basis of purportedly new matter alleged to have been pleaded in the third amended complaint, a third judge, adhering strictly to Schneider, awarded summary judgment to Gleich. Although we are fully cognizant that our supreme court has held that one trial judge has the inherent power to modify or vacate an interlocutory order of another judge granting or denying summary judgment any time before final judgment absent evidence of bad faith or “forum-shopping” on the part of the moving party (Rowe v. State Bank (1988), 125 Ill. 2d 203, 213-14), we are of the opinion that whether or not there was new matter presented to Judge Elward, his ruling that there was no genuine issue of material fact and that Gleich was entitled to summary judgment as a matter of law was palpably in error.

Summary judgment is appropriate only when the pleadings, depositions, affidavits, and admissions on file present no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005; In re Estate of Olenick (1990), 204 Ill. App. 3d 291, 297.) Accordingly, the purpose of a summary judgment proceeding is not to try issues of fact, but rather, to determine if such issues do in fact exist. (Inryco, Inc. v. Multuloc Corp. (1990), 202 Ill. App. 3d 367, 370.) Moreover, it is well established in our law that the pleadings, depositions, admissions, and affidavits in support of a motion for summary judgment are to be construed most strictly against the moving party and liberally in favor of the opponent. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358; Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398.) And because the summary judgment procedure is a drastic means of disposing of litigation, it should be allowed only when the right of the moving party is clear and free from doubt. Purtill v. Hess (1986), 111 Ill. 2d 229, 240.

In attempting to distinguish Schneider, the Oldenburg court, dealing with a set of facts similar to the one that we encounter here, held, as we have noted earlier, that the beneficiary’s power to bind the trust depended on the offeror’s intent to deal with the beneficiary rather than with the trustee, and that, thus, the parties’ “conduct and dealings” before and after the formation of the contract were relevant to the issue of intent. (Oldenburg, 101 Ill. App. 3d at 289.) Therefore, a trier of fact would be required to consider the myriad of factors that present themselves in this case in order to ascertain with whom Gleich intended to contract.

Without conceding the inapplicability of Schneider, defendant Gleich makes much of the fact that Burtell signed the contract “Beneficiary: Charles Burtell,” and argues that, therefore, he did not bind the true beneficiary of the trust, a limited partnership. The partnership agreement of Algonquin 33 Investment, an Illinois limited partnership, designates Burtell as its sole general partner and states in article VIII thereof that:

“The general partner shall have complete and exclusive control over the management of the Partnership business and affairs *** [and] shall have the right, power and authority, on behalf of the partnership and in its name, to exercise all of the rights, powers and authority of a Partner *** under the Illinois
Uniform Partnership Act, including, without limitation, the power and authority to do all of the following:
(a) To acquire, hold, sell lease or otherwise dispose of any real property *** at such price *** as the General Partner deems, in his absolute discretion, to be in the best interest of the Partnership.” (Emphasis added.)

With respect to the conveyance of partnership real estate, section 10(2) of the Uniform Partnership Act provides as follows:

“(2) Where title to real property is in the name of the partnership, a conveyance executed by a partner, in his own name, passes the equitable interest of the partnership, provided the act is one within the authority of the partner under the provisions of paragraph (1) of Section 9.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 106½, par. 10(2).)

Section 9(1) of the Uniform Partnership Act states:

“Sec. 9. (1) Every partner is an agent of the partnership for the purpose of its business, and the act of every partner *** for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 106½, par. 9(1).)

Hence, plaintiffs argue, pursuant to the partnership agreement, the Partnership Act, and the trust agreement in this case, Burtell, as sole general partner is the “functional equivalent” of the beneficiary. It is also noteworthy that in Oldenburg it was the agent of one of three beneficiaries who signed the contract and that the beneficiary in whose behalf he signed shared the power of direction with one of the other beneficiaries.

At any rate, as this court held in Fried, authority and agency are questions of fact as are questions of “whether one has notice of an agent’s lack of authority or is put on notice by the circumstances.” (Fried, 175 Ill. App. 3d at 388.) In the instant case, the record does not resolve the question of Burtell’s authority to act on behalf of the limited partnership. The parties do not dispute that Burtell signed the land sale contract without appending the title “general partner” to his name. The record also reflects that Burtell signed the trust agreement as beneficiary in his own name without indicating “general partner,” that he had the sole power of direction, and that the trustee, Parkway Bank, on August 4, 1980, well before Gleich wrote to the Bank that he “wish[ed] to terminate this contract,” executed the deed to the trust property to the grantee, Gleich Construction Company, in preparation for closing, pursuant to a written “Direction to Convey,” signed by Burtell in his own name. In fact, the trustee appears invariably to have accepted his signature without specifying “general partner” whenever he exercised his power of direction, and that the parties to the trust regarded “general partner” as a mere designation, inessential to Burtell’s signature. Further, Algonquin 33 Investment has not been heard to complain about Burtell’s authority to sell the land. Indeed, as noted above, Gleich concedes that Burtell was able to tender a proper deed at closing. Therefore, on this issue alone, summary judgment was inappropriate.

Count II of plaintiffs’ third amended complaint raises the question of whether Gleich “ratified” Burtell’s acceptance of the offer. Perhaps a better view of the issue is whether Gleich waived strict compliance with the terms of the written offer and thereby accepted Burtell as the proper offeree. In Swerdlow v. Mallin (1985), 131 Ill. App. 3d 900, 904, the court held:

“The parties to a contract can waive any provision in a contract and such waiver can be demonstrated by ‘conduct indicating that strict compliance with the provisions of a contract will not be required.’ ”

Here, plaintiffs point to evidence that not only did Gleich negotiate with Burtell’s agent through Kristensen, but that he also exercised his right to designate the first 16 lots for the closing scheduled for August 15, and directed Kristensen to pay the earnest money into his escrow account and to change the name of the grantee on the title commitment from “Gleich” to “Gleich Construction Company.” There is also evidence to show that Gleich did not object to Burtell’s signature on the contract when it was returned to him on July 19, 1980. In addition, according to Gleich, after he suffered his heart attack, he told Kristensen that he “would rather forfeit [the earnest money deposit] but the principals said no they weren’t interested, that they’d sue for specific performance”; thereafter, Gleich sent a certified letter to the Bank, “Attention: Mr. Chas. Burtell,” stating “I wish to terminate this contract.”

Gleich counters with evidence of his own. He maintains that the lot designations occurred before he received the contract with Bur-tell’s signature, placing in issue the credibility of Burtell’s attorney, who stated in his affidavit that Gleich designated the lots after the contract was returned. Gleich also contends that he questioned Bur-tell’s signing of the contract. He next points to Kristensen’s affidavit, in which he states that he deposited the earnest money in his escrow account “without the direction of any party including Elmer Gleich.” Nevertheless, Gleich appears not to have objected, or to have taken steps, to prevent Kristensen’s depositing Gleich’s check.

Kristensen’s relationship to the parties raises yet another question of fact: as a real estate broker, was he the agent of Gleich, the buyer, or Burtell, the seller? In the briefs, each party refers to him as the agent of the other, but neither recites any supporting facts, although it does appear that as the broker who had the listing, he also signed the rider to the contract relating to topsoil in Gleich’s behalf. Then, too, as to several of these fact issues, Gleich’s position in his depositions and affidavits seems not to have remained completely stationary during the long history and in the voluminous record in this case.

Finally, Gleich argued before the trial court that because the subject property was encumbered by a trust deed secured by an assignment of the beneficial interest, the trustee’s signature was indispensable to the validity of the contract. Only because the argument might be raised on remand, we point out that the contract in the case at bar, as is practically universal in real estate sales agreements, provides that “title exceptions pertaining to liens or encumbrances of a definite or ascertainable amount which may be removed by the payment of money at the time of closing and which the seller may so remove at that time by using the funds to be paid upon the delivery of the deed [are] permitted exceptions.” Moreover, it is undisputed that the power of direction still remained solely in Burtell in the trust agreement. In any event, a proper deed of conveyance, as noted above, was prepared by Parkway and was ready for delivery to Gleich at the scheduled closing. It is noteworthy here too, that the assignment of the beneficial interest was signed by Burtell in his individual capacity without indicating “general partner.” In sum, the case is replete with unresolved issues of both credibility and fact which demand a trial.

Accordingly, we hold the award of summary judgment to be inappropriate, and that the trial court’s order granting defendant’s motion should be reversed and the cause remanded to the trial court for further proceedings not inconsistent with the views expressed in this opinion. See Purtill v. Hess (1986), 111 Ill. 2d 229; Bunch v. Williams (1988), 175 Ill. App. 3d 582.

Reversed and remanded.

HARTMAN and DiVITO, JJ., concur.