author: JUSTICE GREEN

text:
      In re ESTATE OF EMMA LUCILLE REESER LEWIS, Deceased (Marilyn Webb, Petitioner-Appellee, v. Jerry Reeser, Respondent-Appellant).
    Fourth District
    No. 4—89—0429
    Opinion filed January 11,1990.
    Rehearing denied February 22,1990.

      Jerry N. Raymer, of Raymer Law Office, of Bloomington, for appellant.
    Robert S. White and William F. Costigan, both of Costigan & Wollrab, EC., of Bloomington, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On June 16, 1987, and during the administration of the estate of Emma Lucille Reeser Lewis in the circuit court of McLean County, petitioner Marilyn Webb, a legatee under the will of that decedent, filed a petition in that proceeding to recover assets. The respondent to that petition was Jerry Reeser, who was then serving as executor in that estate. In dispute was the ownership of two certificates of deposit (CDs), the signature cards for which set forth a statutory joint tenancy (Ill. Rev. Stat. 1985, ch. 17, par. 3304 — 8 (formerly Ill. Rev. Stat. 1983, ch. 17, par. 3101)) in the decedent and respondent. After an evidentiary hearing, the court entered an order on April 11, 1989, (1) finding the decedent had not made a valid lifetime gift of any interest in the certificates to respondent; and (2) ordering the certificates to be treated as an asset of the estate. Respondent has appealed.

The heart of this appeal concerns the operation of the presumption of gift which arises from the creation of a statutory joint tenancy previously described. (Murgie v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 202 N.E.2d 470; Frey v. Wubbena (1962), 26 Ill. 2d 62, 185 N.E.2d 850.) Respondent maintains on appeal that (1) the evidence was insufficient, as a matter of law, to negate the presumption the decedent made a gift to him of a survivorship interest in the CDs; and (2) the court erred in considering certain of his testimony in a discovery deposition as an admission. We need not consider the latter contention because we hold the evidence failed, as a matter of law, to overcome the presumption of gift. Accordingly, we reverse.

The evidence showed (1) petitioner and respondent were two of the four heirs and surviving children of the decedent; (2) decedent died testate on February 2, 1986; (3) the value of the probated estate absent the two CDs was approximately $500,000; (4) after small gifts to grandchildren, the remainder of the estate was divided equally among the children; (5) the CDs were in the face amounts of $57,827.45 and $35,000 and bore dates of January 7, 1982, and October 6, 1982, respectively; and (6) respondent had contributed nothing toward the purchase of the CDs.

Most of the evidence upon which petitioner relied to rebut the presumption of gift of the CDs came from the discovery deposition of respondent. There, he stated his mother had asked him to sign the signature card for the two accounts, and he had done so. However, he stated he had no knowledge concerning the meaning of those cards at the time he signed them and further acknowledged he first learned he was named a joint tenant of those documents when he opened his mother’s lock box after her death. He admitted he had had no access to her lock box during her lifetime, and she received the income from the certificates. He further testified in the deposition that, during the last four years of his mother’s life, he was an authorized signatory on her checking account and helped her pay her bills from that account either by signing checks or filling them out for her signature. He indicated his mother had numerous other accounts and CDs which stood in her name alone.

Respondent’s testimony at the evidentiary hearing was more favorable to him. At that time he testified that, before signing the signature cards, he “skimmed the writing on them and understood the purpose of the cards was to make him a joint tenant.” He also stated his mother told him she was “putting [his] name on some [CDs],” and, based on prior gifts she had made to him, he had reason to believe she was making a gift to him. Respondent also stated at the hearing that, after his name was placed on the signature cards, he occasionally saw items relating to the CDs, such as statements of interest paid. Respondent testified that, when, upon his deposition, he stated he first learned of the joint tenancy after his mother’s death, he meant he did not know he would receive the CDs upon her death. He further stated he had forgotten about his name being on the signature cards by that time. Respondent also testified that during his mother’s last 10 years she lived approximately two blocks from him and he saw her three or four times a week. He indicated she wanted him to live close by her, and they had a very close relationship. On the other hand, he stated his mother and petitioner “fought like cats and dogs,” and his other sisters seldom helped his mother.

In Murgic and Wubbena, the supreme court clarified the law in regard to statutory provisions which create interest in intangible personalty containing rights of survivorship. The substance of these holdings was (1) the rights of survivorship are created by the execution of the various instruments provided in the statute in conformity with the provisions of the statute; (2) following common law procedures necessary to create rights of survivorship was no longer necessary; (3) compliance with the statutory requirements creates a presumption that those furnishing consideration for the creation of such interests intend to make a gift to those who furnish less than their share or no consideration; and (4) “courts may look behind the form of the transaction to determine the parties’ rights,” but, in doing so, “the burden is upon one questioning the gift to overcome the presumption by clear and convincing proof.” Murgic, 31 Ill. 2d at 589, 202 N.E.2d at 471-72.

After its decision in Murgic, the supreme court decided Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872, and Diederich v. Walters (1976), 65 Ill. 2d 95, 357 N.E.2d 1128, by which the “bursting bubble” or Thayer theory of presumptions in civil cases has been adopted in this State. Under that theory, if the underlying facts which give rise to the presumption are established, a burden is placed on the party against whom the presumption operates to put forth sufficient evidence to rebut the presumption. If sufficient rebuttal evidence is presented, the presumption vanishes. The determination as to the sufficiency of the rebuttal evidence is a determination for the court to make. The Franciscan Sisters court held the evidence required to rebut a presumption “is not determined by any fixed rule” but that, “[i]f a strong presumption arises, the weight of the evidence brought in to rebut it must be great.” Franciscan Sisters, 95 Ill. 2d at 463, 448 N.E.2d at 877.

The presumption of donative intent arising from compliance with statutory procedures for creating a survivorship interest in intangible assets is a civil presumption, and, thus, it is subject to the “bursting bubble” theory. As the precedential cases have required clear and convincing evidence to rebut the presumption, that is the logical standard to apply in determining whether the “bubble” had burst here, thereby negating the presumption. The record does not indicate whether the trial court applied that theory here. Whether it was applied makes little difference, however, because, regardless of whether we view the evidence to determine whether the bubble burst or whether we merely pass on the question of the sufficiency of the proof to rebut the presumption under some other theory of presumptions, we conclude the determination of the trial court cannot stand. Lack of donative intent on the part of the decedent was not shown by clear and convincing evidence, and, if any effect is to be given to the presumption, the award of the two CDs to the estate is contrary to the manifest weight of the evidence.

The evidence that the decedent complied with statutory requirements in setting up the accounts with a purported right of survivor-ship in respondent is undisputed. In examining the facts presented to rebut the presumption of gift, we must recognize the trial court could have interpreted that testimony in a way most favorable to petitioner. From the deposition testimony, the court could have concluded respondent knew little about the existence of the CDs and his rights therein until after the decedent’s death. The evidence was undisputed he contributed nothing toward their creation and never exercised any authority or control over them. The court could properly have disbelieved respondent’s testimony his mother told him she was putting his name on some CDs.

In support of her contention the evidence here supported the circuit court’s determination, petitioner relies upon decisions in the cases of In re Estate of Abbot (1987), 157 Ill. App. 3d 289, 510 N.E.2d 619, In re Estate of Friedman (1984), 123 Ill. App. 3d 82, 462 N.E.2d 692, and In re Estate of Guzak (1979), 69 Ill. App. 3d 552, 388 N.E.2d 431. We conclude all of those cases present factors not present here.

The Abbot case concerned a citation to obtain a bank account from one of a decedent’s heirs whose name was listed on that account as a joint tenant. The trial court had admitted testimony by heirs who would take from his estate that the decedent had made statements (1) indicating the joint bank accounts in question were created so that, if anything happened to him, the joint owner could pay his bills; and (2) that he wanted any funds left over to be shared equally. The appellate court agreed this testimony was barred by the Dead Man’s Act (Ill. Rev. Stat. 1985, ch. 110, par. 8—201) (Abbot, 157 Ill. App. 3d at 292, 510 N.E.2d at 621) but deemed the error harmless because other evidence of substance was produced which would support the trial court’s determination. As here, some evidence there showed the respondent did not believe a gift was being made to her, and she had little knowledge of what was in the account. However, there, unlike here, the joint account was created by the decedent just before he left for a hospital for surgery for a cancerous condition which resulted in his death some seven months later. Evidence also indicated that, after the death, the respondent used some of the money to pay her father’s bills and then sent to each of the other heirs a check for $5,000, saying she was following her father’s wishes. The total amount in the two accounts in question was approximately $90,000. The appellate court also noted that, there, unlike here, had the respondent’s right of survivorship been- upheld, she would receive almost all of the decedent's property, and the remaining heirs would receive almost nothing. This was deemed to be an outcome the decedent would not likely have desired.

In Friedman, a similar type of citation proceeding was involved in regard to a joint tenancy bank account, and the appellate court upheld the trial court’s ruling that the account belonged to the estate of the decedent. There, a mother, while hospitalized, requested her daughter to set up a joint account. The decedent was in and out of hospitals thereafter until she died some three years later. Several joint tenancy accounts with the daughter were set up during this time. The respondent did make two withdrawals for her own benefit during the existence of the accounts, but, unlike here, the respondent made numerous withdrawals at the request of the decedent and for the decedent’s benefit.

A similar dispute over rights of survivorship was involved in Guzak, where the appellate court also affirmed a circuit court determination the account belonged to the estate. There, also, the decedent was a parent, and the dispute arose among his children. The evidence showed the account had been held by the decedent and his wife until her death in 1944, and, in 1969, the name of respondent, a son, was added as a joint tenant. The opinion indicated the father stated at that time the son was being so named “in case anything happened to decedent.” (Guzak, 69 Ill. App. 3d at 554, 388 N.E.2d at 433.) Respondent lived with his father and sometimes made deposits, but the father kept the passbook. Another child testified she had made some deposits to the account for her father and had kept the passbook. She further testified that, when her father was hospitalized for the last time, he told her that a trust account he held was for respondent. Other evidence indicated respondent had admitted after his father’s death that the account belonged to the estate.

In the case of In re Estate of Gibbons (1978), 65 Ill. App. 3d 314, 382 N.E.2d 585, an uncle had lived with his niece and her husband for 10 years and had his niece sign signature cards for two joint tenancy bank accounts. In regard to one account, the niece periodically posted the interest in the account book and treated the interest as hers for income-tax purposes, while she did nothing of that nature in regard to the other account; she conceded at trial that the latter account might have been created for convenience purposes. The trial court agreed and held the latter account belonged to the estate. The appellate court reversed, indicating the niece’s lack of control over the second passbook and her lack of knowledge as to why the account was created was insufficient as a matter of law to overcome the presumption of donative intent.

Citing Abbot, Friedman and Guzak, petitioner maintains the relationship between the size of the estate and the sums in the survivor-ship account bears upon the likelihood of donative intent. In Abbot, the court indicated a donative intent on the part of the decedent was lacking because he would have been unlikely to have wanted one heir to receive almost all of his assets. Here, if respondent is entitled to the approximately $90,000 represented by the two CDs, some $500,000 will still be available to distribute to the four children. The decedent could well have intended to favor the child closest to her by giving him the two CDs while still giving substantial benefits to the others.

Unlike in the cases cited by petitioner, no direct indication is given here that the decedent had any reason to place respondent’s name on the CDs for her convenience. She had a checking account which she used to pay her bills. She permitted respondent access to that account for purposes of handling her affairs. Thus, the only evidence giving any indication of lack of donative intent upon the part of the decedent is the evidence he exercised no control over the CDs and the fact he did not consider he was the owner. While those factors have been held in some cases to be of significance, no case has been called to our attention where those factors have alone been held to be sufficient to support a determination the account is an asset of the decedent’s estate. Quite often a person creating a joint account as a gift may hope the donee, joint owner, will not use the asset until the death of the donor and, thus, keep knowledge and control of the account from the donee, while one creating such an account for his or her convenience will give the joint owner more knowledge about, and control over, the account.

In any event, the Gibbons court held that lack of knowledge upon the part of the surviving joint tenant of the existence of a gift and lack of control over the instruments of ownership failed, as a matter of law, to support a determination no gift was made. We deem that to also be the case here.

As we have stated, we need not pass on the question of whether the court erred in admitting into evidence portions of respondent’s discovery deposition. Supreme Court Rule 212 provides, as petitioner has stated, discovery depositions may be used “as an admission made by a party.” (See 107 Ill. 2d R. 212(a)(2).) The hearsay exception of an admission by a party opponent involved here does not require that the admission be against the interest of the party, and any relevant admission is admissible. (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §802.1, at 525 (4th ed. 1984).) We note the statements contained in respondent’s discovery deposition admitted certain matters which were relevant to the issue of the donative intent of the decedent.

For the reasons stated, we reverse the judgment from which appeal is taken.

Reversed.

KNECHT, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
      In re MARRIAGE OF LARRY ADMIRE, Petitioner-Appellee, and JOANN ADMIRE, Respondent-Appellant.
    Fifth District
    No. 5—88—0321
    Opinion filed December 12,1989.

      Lynn M. Travis, of Coppinger, Carter, Schrempf & Blaine, Ltd., of Alton, for appellant.
    David K. Stalker, of Alton, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Respondent, Joann Admire, appeals from a judgment of the circuit court of Madison County which denied, in part, her second amended petition for a rule to show cause why petitioner, Larry Admire, should not be held in contempt of court, and granted petitioner’s motion for setoff. For the reasons which follow, we affirm in part and reverse and remand in part with instructions.

The record before us shows that the parties’ marriage was dissolved pursuant to a judgment of dissolution entered by the circuit court of Madison County on September 2, 1980. Following post-judgment motions, that judgment was subsequently amended by orders entered by the court on January 7, 1982, and May 4, 1982. As so amended, the judgment of dissolution required, inter alia, (1) that petitioner maintain at least $30,000 of life insurance on his life and make respondent the beneficiary of that insurance; (2) .that petitioner pay all marital debts and family expenses incurred before September 2, 1980; (3) that petitioner pay respondent $5,000 in maintenance under an installment plan, with payments to commence on the fifth anniversary of the September 2, 1980, dissolution judgment; and (4) that respondent be “awarded the marital residence as her sole and separate property free and clear of any interest of Petitioner.”

With respect to the issue of maintenance, the judgment of dissolution, as amended by the circuit court’s order of May 4, 1982, specifically provided that petitioner was to pay the $5,000 he owed, in annual installments of $1,000 each, commencing on the fifth anniversary of the September 2, 1980, judgment. The judgment further provided that petitioner was to pay respondent interest at the rate of 6% per annum during the four-year period before the $1,000 annual payments commenced.

With respect to the award of the marital residence to respondent, the dissolution judgment, as amended by the circuit court’s order of January 7, 1982, provided that the residence belonged solely to respondent, to keep or sell as she saw fit, and that petitioner was to

“continue to pay the existing mortgage on said property until it is paid in full. The Respondent is under no obligation to repay the Petitioner the amount of the mortgage so paid, or to be paid at any time in the future, by Petitioner. In the event that Respondent decides to sell the marital residence, Petitioner is ordered to make necessary arrangements to pay, and shall pay, the mortgage balance in full at the time of the sale (including interest too) so that the total amount realized from the sale shall be the exclusive property of the Respondent.”

The terms of the original September 2, 1980, judgment of dissolution further required petitioner to pay the insurance on the residence, while responsibility for taxes was placed on respondent. These requirements remained unchanged by either of the subsequent modifications.

In November of 1984, respondent filed a petition for a rule to show cause why petitioner should not be held in contempt of court. That petition was subsequently amended in May of 1985, then amended for a second time in September of 1987. In her second amended petition, respondent alleged that petitioner had failed to make any of the payments required by the dissolution judgment with respect to maintenance, that he had failed to maintain a $30,000 life insurance policy on his life with respondent as the beneficiary, that he had failed to pay all of the marital debts and expenses incurred before September 2, 1980, and that the marital residence had been foreclosed upon because petitioner had failed to pay off the mortgage when it fell due. Respondent requested that petitioner be held in contempt of court for failure to comply with the terms of the dissolution judgment, that he be ordered to pay respondent the monies he owed her pursuant to that judgment, that he be required to pay to her the value of the “property of the marital residence lost to foreclosure,” and that she be awarded her reasonable attorney fees.

Petitioner responded by filing a petition of his own in which he requested that he be granted a setoff against any monies which he owed respondent and that respondent be ordered to pay him the sum of $29,625.58. As grounds for this request, petitioner alleged that he had been forced to pay the real estate taxes on the marital residence for the years 1981 through 1983, even though the September 2, 1980, judgment of dissolution had made the payment of those taxes respondent’s responsibility. Petitioner further alleged that the foreclosure on the marital residence was actually caused by respondent as a direct result of her “failure to either sign a new mortgage, execute and convey a deed in lieu of foreclosure, or letting the marital residence deteriorate and waste,” and that because of the foreclosure he did not receive $29,625.58 which he would otherwise have been paid. Petitioner’s claim to this $29,625.58 was premised on his belief that the September 2, 1980, dissolution judgment required respondent to sell the marital residence by a certain date and to pay him $29,625.58 out of the proceeds of that sale, which sum was equivalent to the amount of the mortgage held by the bank on the property.

In making this claim to the sale proceeds, petitioner evidently failed to recognize that the terms of the original dissolution judgment had been amended. As previously indicated, the January 7, 1982, amendment to the dissolution judgment specified that the marital residence was now respondent’s sole and separate property; respondent was no longer obligated to sell the residence; and if she did choose to sell the residence, she had no obligation to repay petitioner for the amounts he had paid on the mortgage. To the contrary, the amended dissolution judgment expressly provided that if respondent were to sell the residence, petitioner would have to pay off the mortgage so that the total amount realized from the sale would belong exclusively to respondent.

A hearing on respondent’s second amended petition for a rule to show cause and on petitioner’s setoff petition was held on October 28, 1987, and April 18, 1988. At that hearing, petitioner no longer pressed his claim for the $29,625.58 in lost proceeds from the sale of the marital residence. He argued, however, that he should be given a setoff for the attorney fees and expenses which he had paid when the marital residence was foreclosed upon, as well as for the real estate taxes he had paid on the house.

On May 9, 1988, the circuit court entered a judgment which denied all of the relief requested by respondent, except that it ordered petitioner to name respondent as a beneficiary on his life insurance policy. In ruling against respondent, the circuit court expressly found that the foreclosure on the marital residence and the expenses related thereto, amounting to $7,528.56, were the sole responsibility of and were caused by respondent. The court further found that petitioner had paid $1,479.65 for the 1982 and 1983 real estate taxes on the marital residence. Because petitioner had borne those amounts, the circuit court allowed petitioner to take them as a setoff against the maintenance he owed respondent under the dissolution judgment. Because petitioner had been required to incur the attorney fees and costs in connection with the foreclosure proceeding and because the court believed that respondent had failed to adequately prove her claim for payment of prior marital debts, the court likewise refused to require petitioner to pay any sums regarding those debts. In addition, respondent’s request for the attorney fees incurred by her in bringing her second amended petition for a rule to show cause was denied, and both parties were ordered to bear their own attorney fees. From this judgment respondent now appeals.

There is no dispute that the maintenance and property-settlement provisions of a dissolution judgment may be enforced through contempt proceedings. (In re Marriage of Ramos (1984), 126 Ill. App. 3d 391, 396, 466 N.E.2d 1016, 1020, cert. denied (1985), 471 U.S. 1017, 85 L. Ed. 2d 305, 105 S. Ct. 2023.) The power to enforce an order to pay money in a dissolution case through contempt is limited to situations in which there has been a wilful refusal to obey the order. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 285, 469 N.E.2d 167, 175.) The failure of a party to make the payments required by a court order or judgment is, however, prima facie evidence of contempt. Once a failure to make payment has been shown, the burden shifts to the alleged contemnor, who may then defend by showing that he is unable to pay. (Logston, 103 Ill. 2d at 285, 469 N.E.2d at 175.) Whether a party is guilty of contempt is a question of fact for the trial court, and a reviewing court will not disturb the finding unless it is against the manifest weight of the evidence or the record reflects an abuse of discretion. Logston, 103 Ill. 2d at 286-87, 469 N.E,2d at 176.

It is well settled that a judgment is against the manifest weight of the evidence only when an opposite conclusion is apparent or when findings appear to be unreasonable, arbitrary, or not based on the evidence. (Briggs v. Gaddis (1985), 133 Ill. App. 3d 704, 707, 479 N.E.2d 350, 352.) The findings of the trial court must, of course, be accorded great deference, and in reviewing those findings we are obligated to view all of the evidence in the light most favorable to the party who prevailed at trial. Where the trial court’s findings are contrary to the manifest weight of the evidence, however, it is also our duty to reverse. Cornstubble v. Ford Motor Co. (1988), 178 Ill. App. 3d 20, 24, 532 N.E.2d 884, 886.

In the matter before us, there is no dispute that the circuit court properly ordered petitioner to name respondent as beneficiary on a $30,000 insurance policy on petitioner’s life, and we do not believe that the circuit court erred when it refused to order petitioner to pay respondent the amounts she claimed he owed for marital debts and family expenses incurred before September 2, 1980. Although respondent adduced various canceled checks, receipts, and other documentation in support of her claim regarding nonpayment of marital debts and household expenses, respondent had difficulty substantiating that the documentation she submitted did, in fact, represent expenses which petitioner was obligated to pay under the dissolution judgment. In many cases, respondent had no recollection at all of what a particular check or receipt was for. Petitioner, for his part, denied that he still owed amounts for marital debts and expenses incurred up to September 2, 1980, the date of the dissolution judgment. Moreover, the circuit court indicated that many of the same expenses for which respondent was seeking reimbursement had been the subject of a prior show cause petition and that a ruling had already been made that those expenses had been paid. We therefore cannot say that the circuit court’s refusal to order petitioner to pay respondent additional sums for marital debts and expenses was contrary to the manifest weight of the evidence. To this extent, the circuit court’s judgment shall be affirmed.

With respect to the issue of maintenance, however, the circuit court’s judgment cannot stand. There was absolutely no dispute that petitioner failed to make any of the payments for maintenance required by the circuit court’s dissolution judgment. The circuit court nevertheless concluded that this nonpayment should be excused and a setoff granted to petitioner because, as petitioner had argued, (1) petitioner had borne the expense of the foreclosure upon the marital residence and paid the taxes on the residence for 1982 and 1983, and (2) petitioner would not have had to bear these expenses had it not been for respondent. We disagree.

Although there is no question that petitioner did, in fact, pay the expenses of the foreclosure, the manifest weight of the evidence established that the foreclosure occurred only because petitioner had failed to pay off the mortgage on the residence when it fell due, as required by the express terms of the January 7, 1982, amendment to the dissolution judgment. It did not result from any act or omission attributable to respondent.

Petitioner attempted to shift responsibility for the foreclosure onto respondent by arguing that the foreclosure actually took place because she had abandoned the premises. This is simply not so. While it is true that respondent was forced to move out of the residence because she did not have adequate funds to make some necessary repairs, this is not why foreclosure proceedings were initiated. The complaint for foreclosure plainly alleged that foreclosure was being pursued because the “[mjortgagor has failed to pay the balance on the note when due on July 20, 1982, and is in default with the full balance due ***.” This was not contradicted by anything in the decree of foreclosure ultimately entered by the court, which indicated simply that the allegations of the complaint, including the foregoing allegation, were “true and proven.” In addition, Dwane Bruns, executive vice-president of the bank which held the mortgage, specifically testified that the residence was foreclosed upon because the note had expired. According to Bruns, “We needed to sign a new note or get it paid off, and we couldn’t get either one so we foreclosed.” Bruns further stated that if the note had been paid off or renegotiated, the foreclosure would not have taken place.

The only evidence to the contrary consisted of petitioner’s own testimony that the marital residence was actually foreclosed upon because it was “vacant and unoccupied.” How petitioner arrived at this conclusion was never really explained. It appears, however, that petitioner based his claim solely on his own reading of the foreclosure decree, which included a reference to the fact that, at the time the decree was entered, the residence was vacant and had been abandoned. What petitioner fails to comprehend is that the decree, which has been included in the record before us, did not purport to mention that the house was vacant in order to explain why the foreclosure was being permitted. As just discussed, the foreclosure was sought simply because the balance had fallen due on the note and was not paid off or renegotiated. The foreclosure had nothing to do with whether the residence was occupied or vacant. Indeed, under the terms of the mortgage itself, which has also been included in the record, the mere fact that the residence was vacant and unoccupied would not have entitled the bank to bring foreclosure proceedings.

In our view, the question of whether the residence was vacant or occupied was relevant only because if the premises had been occupied by the owner as a residence or homestead, there may have been a question as to whether the bank should have permitted the owner to remain in such occupancy following the foreclosure. (See Ill. Rev. Stat. 1983, ch. 110, par. 15 — 309.) As we read the foreclosure decree, the court mentioned that the house was vacant only to indicate that this additional question did not have to be addressed.

As previously indicated, petitioner also attempted to argue that respondent should be held responsible for the foreclosure, and that he should be granted a setoff for the foreclosure expenses, because respondent failed to either sign a new mortgage or execute and convey a deed in lieu of foreclosure when the original mortgage fell due in 1982. This claim is likewise without merit.

The flaw in petitioner’s argument is that under the express terms of the dissolution decree, respondent had no obligation to participate in further financing arrangements with respect to the marital residence. We point out again that under the dissolution judgment, as amended by the circuit court’s January 7, 1982, order, responsibility for paying the mortgage rested exclusively with petitioner. When the note on the residence fell due, it was the duty of petitioner and of petitioner alone to make appropriate arrangements to either pay off the mortgage or refinance it. This was a duty which petitioner simply failed to meet. To shift responsibility for this failure on respondent, which is what the circuit court here did, is flatly inconsistent with the dissolution judgment’s terms. Respondent cannot be penalized for refusing to assume an obligation which she was not required to bear.

Because the evidence established that the foreclosure resulted exclusively from petitioner’s failure to meet his obligations under the dissolution judgment and was in no way attributable to respondent, the expenses incurred by petitioner in connection with the foreclosure should not have been allowed as a setoff against the amounts he owed respondent for maintenance, and petitioner should have been held in contempt of court for failure to make those maintenance payments. Petitioner should likewise have been held in contempt of court for failing to pay off the mortgage, which he was required to do, thereby causing respondent to lose the marital residence, which had been awarded to her free and clear of any interest of petitioner. Correspondingly, petitioner should have been required to pay respondent not only the amounts he owed her for maintenance under the terms set forth by the dissolution judgment, but also a sum to compensate her for the value of the lost residence.

The record shows that following the foreclosure, the marital residence was sold for $25,500. Because no additional evidence was adduced with respect to the home’s fair market value, we believe that this is the amount by which respondent’s loss of the residence should have been measured. This, then, leads to the question of the real estate taxes paid on the residence for 1982 and 1983.

Although the evidence as to who paid those taxes was less than unequivocal, we believe that there was a sufficient basis to support the trial court’s conclusion that they were ultimately borne by petitioner. Because the taxes, amounting to $1,479.65, would undeniably have been respondent’s responsibility had petitioner adhered to his obligations under the dissolution judgment and not allowed the foreclosure to take place, the amount of the taxes is therefore properly deductible from the amount which petitioner should be required to pay respondent. To hold otherwise would result in a windfall to respondent and place her in a better position than she would have been in had petitioner not violated the terms of the dissolution judgment. We believe, however, that the amount of the taxes paid should be allowed as a setoff not against petitioner’s maintenance obligations, but against the amount he owes respondent for loss of the residence. Accordingly, the net amount petitioner should have been ordered to pay respondent for her loss of the residence is $24,020.35 ($25,500 minus $1,479.65).

We also believe that petitioner should have been required to pay the reasonable attorney fees incurred by respondent in prosecuting her petition for a rule to show cause. Petitioner argues that the trial court’s ruling that each party should bear his own fees and costs was substantiated by the record because the evidence showed that respondent earned a substantial income, while no testimony was elicited from petitioner regarding his income or assets. It is axiomatic, however, that when it becomes necessary for a party to go into court in order to enforce rights under a judgment of dissolution, the party who is thus forced to resort to judicial process to secure compliance with the terms of the judgment is entitled to her reasonable attorney fees even absent a showing of inability to pay those fees. (In re Marriage of Donahoe (1983), 114 Ill. App. 3d 470, 477, 448 N.E.2d 1030, 1035.) That is precisely the situation present here. As set forth in this record, petitioner failed to meet his obligations under the dissolution judgment, his failure to do so was not justified, and respondent had no recourse but to proceed against him through a contempt action. For the circuit court to deny respondent her reasonable attorney fees in pursuing her rule to show cause therefore constituted an abuse of discretion and must be reversed.

For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed insofar as it ordered petitioner to name respondent as a beneficiary on a $30,000 life insurance policy on his life and refused to hold petitioner in contempt of court for failure to pay marital debts and family expenses incurred before September 2, 1980. The judgment is reversed insofar as it failed to hold petitioner in contempt of court for failing to make the maintenance and mortgage payments required by the dissolution judgment and denied respondent her reasonable attorney fees. In addition, the cause is hereby remanded to the circuit court with instructions to enter an order:

(a) adjudging petitioner guilty of contempt of court for failing to make the maintenance and mortgage payments required by the dissolution judgment;
(b) requiring petitioner to pay respondent the maintenance specified by the dissolution decree and the sum of $24,020.35, representing the value of the marital residence less the 1982 and 1983 real estate taxes paid on the residence;
(c) establishing appropriate measures to compel petitioner to make the foregoing payments and purge himself of his contempt; and
(d) awarding respondent the reasonable attorney fees she has incurred in prosecuting her rule to show cause petition.

Affirmed in part; reversed and remanded in part with instructions.

HOWERTON and GOLDENHERSH, JJ., concur.


author: JUSTICE CHAPMAN

text:
    JOHN MARSHALL, a Minor, by Evelyn Marshall, his Mother and Next Friend, Plaintiff-Appellant, v. THE CITY OF CENTRALIA, Defendant-Appellee.
    Fifth District
    No. 5—87—0839
    Opinion filed December 19,1989.
    Rehearing denied January 24, 1990.
    Kujawski, Rosen & Faerber, of Belleville (Fritz G. Faerber, of counsel), for appellant.
    Judge & Knight, Ltd., of Park Ridge (Jay S. Judge, Sarah Hansen Sotos, and Betty J. Glass, of counsel), for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On October 19, 1985, John Marshall, a minor, and no relationship to our first chief justice insofar as the record reflects, sustained an injury to his right knee when he fell in an open sewer manhole in the City of Centralia. The manhole was located at the intersection of Sycamore and McCord on the west side of Sycamore and approximately two feet north of McCord. The plaintiff was walking east on the sidewalk on the north side of McCord towards Sycamore, which is a north-south street. As he approached the intersection, he noticed that on the far side of Sycamore, his projected path of travel, the sidewalk was covered with mud., Being unwilling to subject his red Ponys to such conditions, he decided to skirt the muddy area by moving from the sidewalk into the street. Although the record does not reflect the entire course of study being followed by young John, we may safely assume that Euclid and/or his good friend, Pythagoras, will play some part in his studies, because he chose a hypotenusal path to accomplish his goal of mud-avoidance. He moved diagonally from the sidewalk across the short span of grass, and as he was almost ready to step into the street, his right foot went into an open manhole, therefore thwarting both his ability to keep his red Ponys clean and injuring his right knee.

The injury in this case occurred not on the roadway, but in the parkway owned by the defendant. Although there is some confusion in the record as to the directions and locations, the following rough diagram is an approximation of the locations of the streets, the manhole and the plaintiff’s originally intended direct path and the alternate route he took to avoid the muddy sidewalk.

Suit was brought by his mother and next friend and the amended complaint alleged:

“4. That at the above-mentioned time and place, because of a defect in the sidewalk, the plaintiff was required to deviate from the sidewalk and walk upon a grassy area, and thereby fell by slipping and falling into an open sewer manhole at the curb sustaining serious and permanent injuries as will hereinafter be more fully alleged.
5. That at the above-mentioned time and place, the defendant, by and through its agents, servants and employees, committed one or more of the following negligent acts and/or omissions;
(a) that the defendant negligently failed to maintain its curbs and sewer manholes;
(b) that the defendant negligently failed to repair the sewer manhole covers;
(c) that the defendant failed to periodically inspect and repair its broken and/or misplaced sewer manhole covers;
(d) that the defendant failed to keep its sidewalks, walkways, curbs and streets in a reasonably good condition for use by the plaintiff and other pedestrians;
(e) that the defendant failed to warn the plaintiff of th defective sidewalk, walkway, street, curb and/or open sewe manhole cover;
6. That as a direct and proximate result of one or more c the foregoing acts or omissions on the part of the defendam plaintiff was injured when he fell as a result of having to cros the street because of a defective sidewalk, walkway, curb an street, and manhole cover’s disrepair.”

Discovery was conducted, and the trial court had various pleading; statements, and the plaintiff’s deposition before it at the time that i ruled upon the defendant’s motion for summary judgment.

These materials reflected that the plates covering the sewer mar holes had on occasion been removed by children in the neighborhoo and that their removal had been reported to the appropriate author ties of the defendant, but nothing had ever been done about it. In ac dition, the defendant had employees cleaning sewer drains on Octobe 14, 1985, and October 15, 1985, but the defendant had no records a to the exact location where the employees had been working or as t which drains had been cleaned. The sewer manhole into which plair tiff fell was on Sycamore about two feet north of McCord. The plair tiff had seen the sewer drain before the accident, but it had alway had the cover on it. At the time of the accident the curb area wher the plaintiff fell was covered with autumn leaves. As the plaintii walked across the grass between the sidewalk and curb, he steppe into the leaves in the curb area and his right leg went into the ope hole. At the time of the accident the plaintiff had not yet entered th street.

The manhole was on the curb of Sycamore Street at the nortl west corner of the intersection. The plaintiff was about 10 to 15 fee from Sycamore Street when he first noticed the mud on the othe side of Sycamore. He described the muddy condition of the sidewal east of Sycamore as being “enough to get it on the bottom of your feet,” but not enough to cover the entire width of the sidewalk. There were “bald spots” on the sidewalk east of Sycamore, but they were not sufficient to leave a path big enough to walk through. The “high spots” of the sidewalk were clear. The plaintiff described the mud spots as “little layers of mud which were about two to three feet long” and “about a foot wide.” He guessed that there were three to four such mud spots between Sycamore’s eastern curb and his friend’s house, his destination, located almost a block east of Sycamore Street.

Based on the facts described above the trial court held that there was no genuine issue of material fact and that as a matter of law the defendant could not be liable to the plaintiffs. The presiding judge concluded that the city owed no duty to maintain its sewer drains and curbs in a condition reasonably safe for use by pedestrians inasmuch as the plaintiff was not an intended user of this type of municipal property. The trial court entered summary judgment for the defendant, and the plaintiff has appealed.

The defendant argues that the plaintiff in this case is essentially a jaywalker and that the city owes him no duty, citing Risner v. City of Chicago (1986), 150 Ill. App. 3d 827, 502 N.E.2d 357, and Deren v. City of Carbondale (1973), 13 Ill. App. 3d 473, 300 N.E.2d 590. The city also relies upon Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill. App. 3d 190, 478 N.E.2d 888, for the proposition that a municipality owes no duty to a jogger who is utilizing the road surface. Finally, and closest factually to the instant case, the city relies upon Householder v. City of Bunker Hill (1988), 172 Ill. App. 3d 1037, 527 N.E.2d 528, which upheld that trial court’s dismissal of a complaint seeking recovery for injuries sustained by a plaintiff who stepped into an open manhole while pushing her car on the defendant’s street.

Based on these cases, the defendant argues that the trial court was correct in finding that plaintiff’s use of the parkway was not an intended use of that area and the city owes no duty to one who voluntarily deviates from the sidewalk. Plaintiff’s deposition testimony and his amended complaint, however, state that he was required to leave the sidewalk to avoid the muddy conditions on Sycamore Street. Plaintiff argues that this situation brings this case within the purview of Johnson v. City of Rockford (1962), 35 Ill. App. 2d 107, 182 N.E.2d 240, Thorsen v. City of Chicago (1979), 74 Ill. App. 3d 98, 392 N.E.2d 716, and City of Beardstown v. Smith (1894), 150 Ill. 169, 37 N.E. 211.

In Johnson the plaintiff claimed that the defendant had allowed a sidewalk to be obstructed by ice and snow for a distance of 100 feet, which forced him to walk in the street where he was struck by a car. The trial court dismissed the complaint, and the appellate court reversed, holding:

“Applying these principles to the allegations of the amended complaint, we conclude that a jury might reasonably find that defendants could have reasonably foreseen the injuries to the plaintiff as a natural and probable result of their negligence. It is not necessary that the defendants should have reasonably foreseen the precise injury which resulted; it is enough if the exercise of reasonable foresight would have warned the defendants of the danger to pedestrians in obstructing a sidewalk with a bank of snow and ice for a distance of 100 feet.” Johnson, 35 Ill. App. 2d at 119, 182 N.E.2d at 246.

In Thorsen the court affirmed the jury verdict against the city based on the plaintiff’s claim that he was struck by a drunk driver after he was forced to walk in the street because the city had removed the sidewalk to install a water main. In City of Beardstown v. Smith the plaintiff fell into an open ditch or drain that was actually located in the street area. While no actual sidewalk was present, the plaintiff was on a path beaten down by pedestrian use when she fell.

While we agree that the facts of this case might arguably bring it within the holdings of Johnson and Thorsen, we need not decide whether those cases are controlling here. Instead we find that the cases cited by the defendant (Risner, 150 Ill. App. 3d 827, 502 N.E.2d 357; Deren, 13 Ill. App. 3d 473, 300 N.E.2d 590; Eddings, 135 Ill. App. 3d 190, 478 N.E.2d 888; Householder, 172 Ill. App. 3d 1037, 527 N.E.2d 528) are distinguishable on the basis that the injuries occurred in the street or roadway area, and the courts held that no duty existed to keep roadways reasonably safe for pedestrian traffic.

In this case the manhole extended from the grassy, leaf-covered parkway in the curb on the west side of Sycamore approximately two feet north of McCord. It would appear to be almost at the point of the corner and approximately three feet south of the south edge of the sidewalk. A city has a duty to maintain its streets and sidewalks, including its parkways, in a reasonably safe condition considering the intended use of such areas. Greig v. City of Park Ridge (1964), 49 Ill. App. 2d 237, 240, 199 N.E.2d 609, 610-11; Pinto v. DeMunnick (1988), 168 Ill. App. 3d 771, 523 N.E.2d 47, appeal allowed (1988), 122 Ill. 2d 593, 530 N.E.2d 263.

We hold that the city has a duty to cover open sewer drains located in a parkway at a corner in a residential area. Therefore the summary judgment in defendant’s favor is reversed, and this cause is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

HOWERTON and RARICK, JJ., concur.


text:
    THOMAS R. GOLD, JR., et al., Plaintiffs-Appellants, v. EDWARD R. DUBISH et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0577
    Opinion filed December 20,1989.

      Donald R. Johannes, of Johannes & Marrón, P.C., of Highland, for appellants.
    M. Joseph Hill, of Mateyka & Hill, P.C., of Edwardsville, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

This is a permissive interlocutory appeal pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) from orders of the circuit court of Madison County which dismissed counts I through VI, XIII through XVIII, XIX through XXIV, and XXV through XXX of plaintiffs’ second amended complaint, and struck from counts I through VI and XIII through XXIV of that complaint plaintiffs’ claims for lost profits. The issues presented for our review are: (1) whether counts I through VI adequately alleged causes of action for promissory estoppel, (2) whether counts XIII through XVIII adequately alleged causes of action for equitable estoppel, (3) whether counts XIX through XXX adequately alleged causes of action for fraud, and (4) if plaintiffs have sufficiently alleged causes of action for promissory estoppel, equitable estoppel and fraud under counts I through VI, XIII through XVIII, and XIX through XXIV, respectively, whether plaintiffs may seek recovery for lost profits under those counts. For the reasons which follow, we affirm in part and reverse and remand in part.

Plaintiffs, Thomas R. Gold, Jr., Barbara A. Gold and W. Scott Stroder, sought to buy a grocery business from defendants, Edward R. Dubish, Pauline M. Dubish, Edray Foods, Inc., and Edray Dubish Investments, Inc. When the sale was not consummated, plaintiffs brought a damage action against defendants in the circuit court of Madison County. In their second amended complaint, plaintiffs sought recovery based on promissory estoppel, breach of contract, equitable estoppel, and fraud. Defendants moved to dismiss the promissory estoppel, equitable estoppel and breach of contract counts pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) on the grounds that they failed to state a cause of action. At the same time, defendants filed a motion pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) in which they argued that plaintiffs’ breach of contract claims were barred by the statute of frauds and that no basis existed for holding defendants liable on the theory of fraud. Defendants also moved to strike plaintiffs’ claim for lost profits from those counts of their complaint alleging promissory estoppel, equitable estoppel and fraud.

In an order entered February 17, 1988, the circuit court granted defendants’ motion to strike and struck from the complaint all references to lost profits which were contained in the counts regarding promissory estoppel, equitable estoppel and fraud. In the same order, the circuit court dismissed counts I through VI of the complaint, dealing with promissory estoppel, and counts XIII through XVIII, which were premised on equitable estoppel, on the grounds that they failed to state a cause of action. Plaintiffs’ claims for breach of contract and fraud were allowed to stand.

Although the circuit court’s order specifically found that the counts pertaining to fraud were “appropriately plead and should be answered within thirty (30) days,” defendants filed a “Motion to Clarify Court’s Order” which claimed that the court had not specifically dealt with the issue of the counts sounding in fraud and asked that those counts be dismissed. Plaintiffs, in turn, filed a motion to reconsider in which they requested that the court reverse its decision and: (a) deny defendants’ motion to dismiss those counts of the second amended complaint alleging equitable estoppel and fraud, and (b) reinstate their claim for lost profits under the equitable estoppel and fraud counts. In an order entered on August 25, 1988, the circuit court denied plaintiffs’ motion to reconsider, granted the “Motion to Clarify Court’s Order” filed by defendants, and dismissed those counts of plaintiffs’ second amended complaint which sounded in fraud. On plaintiffs’ motion, the circuit court found no just reason for delaying enforcement or appeal (107 Ill. 2d R 304(a)), and the circuit court’s orders of February 17, 1988, and August 25, 1988, are each now before us for review.

Because counts I through count VI and XIII through XVIII of plaintiffs’ second amended complaint were dismissed pursuant to a motion filed by defendants under section 2 — 615 of the Code of Civil Procedure (Ill, Rev. Stat. 1987, ch. 110, par. 2 — 615), the only question before us with respect to those counts is whether the circuit court erred in concluding that they failed to state a cause of action upon which relief may be granted. (See Wooded Shores Property Owners Association v. Mathews (1976), 37 Ill. App. 3d 334, 337, 345 N.E.2d 186, 189.) As our supreme court has recently reaffirmed, a civil complaint in Illinois is required to plead the ultimate facts which give rise to the cause of action. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 438.) Upon a motion to dismiss, all facts properly pleaded in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the nonmoving party. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which would entitle the plaintiff to recover. Board of Education, 131 Ill. 2d at 438.

Counts I through VI each sought recovery based on the theory of promissory estoppel. This court has recently held:

“ ‘Promissory estoppel is an equitable device invoked to prevent a person from being injured by a change in position made in reasonable reliance on another’s conduct. [Citation.] It is a doctrine under which a plaintiff may recover without the presence of a contract, and the courts have permitted suit on this theory in the absence of a contract. [Citation.] To recover under this doctrine, the following elements must be met: (1) a promise, (2) which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, (3) which induces such action or forbearance, and (4) which must be enforced in order to avoid injustice.’ ” (Phillips v. Britton (1987), 162 Ill. App. 3d 774, 785, 516 N.E.2d 692, 700, quoting Lawrence v. Board of Education (1987), 152 Ill. App. 3d 187, 201, 503 N.E.2d 1201,1210.)

We believe that these elements have been adequately alleged here.

Counts I through VI are each based on the same series of events, and each contains the same basic substantive allegations. In those counts, plaintiffs allege that from July 14, 1984, until August 16, 1984, they negotiated with defendants to purchase Edray Foods, Inc., and some real estate owned by Edray Dubish Investments, Inc. Defendants Edward R. Dubish and Pauline M. Dubish were co-owners of each of those enterprises. According to the complaint, defendants required that the transfer of the business and real estate be completed on or by September 1, 1984. Plaintiffs, in turn, informed defendants that in order to meet this time requirement, “all arrangements had to be agreed to by August 17, 1984,” so that plaintiffs Thomas Gold and W. Scott Stroder could give two weeks’ notice before leaving their existing jobs.

Plaintiffs aver that all material provisions of the contractual arrangements for the sale were specifically agreed upon by the parties “on or about August 17, 1984,” and that the terms of the contract were to be integrated into two documents, one for the purchase of Edray Foods, Inc., and one for the purchase of the real estate from Edray Dubish Investments, Inc. The contract for Edray Foods, Inc., was prepared and signed, and defendants arranged for the final terms of the purchase of the real estate to be put in writing. Allegedly, this was to be a mere formality.

Plaintiffs claim that on the 17th of August they again informed defendants on numerous occasions that in order to comply with defendants’ requirement that the transfer be completed by September 1, Thomas Gold and W. Scott Stroder would have to tender their resignations on that day and they would do so only if defendants “affirmed and/or confirmed a completed deal.” Moreover, they specifically requested that defendants affirm and/or confirm the bargain as completed so that Thomas Gold and Stroder could tender their resignations and meet the September 1 deadline required by defendants. Plaintiffs allege that on August 17, defendants then “either affirmatively and/or by silence, themselves and/or through their agents, including their attorney, *** represented and promised that the transaction was agreed to and completed, and all material provisions affirmed and/or confirmed.”

Plaintiffs thus did aver the first requirement for promissory estoppel, i.e., the existence of a promise. In dismissing plaintiffs’ promissory estoppel claims, the circuit court read plaintiffs’ complaint as attempting to impose liability on defendants based on a promise which could only be inferred from defendants’ silence. Although the circuit court recognized that situations do exist where estoppel may be based on silence, it believed that plaintiffs had failed to allege the existence of such circumstances here.

The problem with the circuit court’s analysis is that it reads plaintiffs’ complaint too narrowly. As we have just discussed, plaintiffs specifically allege that defendants had represented and promised that the transaction was agreed to and completed and that all material provisions had been affirmed or confirmed either through their silence “and/or” affirmatively. Because plaintiffs have thus averred the existence of an affirmative promise, whether a promise could also be inferred from defendants’ silence under the circumstances present here need not even be addressed.

As alleged in their complaint, plaintiffs informed defendants on or about August 14, 1984, that in order to comply with defendants’ requirement that the transaction take place on or by September 1, 1984, all arrangements had to be agreed to by August 17, 1984, so that Thomas Gold and Stroder could tender their resignations from their current employment. On or about August 17, 1984, plaintiffs again informed defendants on numerous occasions that to comply with defendants’ deadline, Gold and Stroder would have to tender their resignations on that day and would do so only if defendants affirmed and/or confirmed that the deal had been completed, and they specifically requested defendants to affirm or confirm that the transaction had been completed so that Gold and Stroder could tender their resignations. If defendants, in fact, promised that the transaction would be completed and did so under these circumstances, we believe that they should reasonably have expected their promise to “induce action or forbearance of a definite and substantial character” on the part of plaintiffs, namely, that Thomas Gold and Stroder would quit their jobs in anticipation of taking over the business. Thus, the second element necessary to establish promissory estoppel has likewise been sufficiently averred.

That plaintiffs have adequately alleged the remaining elements for promissory estoppel has not been disputed. According to counts I through VI, plaintiffs Thomas Gold and W. Scott Stroder did, in fact, resign from their current employment based upon defendants’ promise that the transaction would be completed, and they allege that they would not have done so but for defendants’ promise. Upon resigning from their jobs, Thomas Gold and Stroder began working at defendants’ warehouse in order to familiarize themselves with the business, they took inventory of the business stock, they examined the books, accounts and insurance records of the business, they made a sales call on at least one of defendants’ customers, and they took at least two orders from prospective customers. These allegations, if true, would be sufficient to establish that defendants’ promise did, indeed, induce action of a definite and substantial character by plaintiffs.

Plaintiffs’ complaint likewise contains allegations which, if true, would establish that plaintiffs sustained significant damage as a result of their reliance on defendants’ promise that the deal would be completed. Plaintiffs allege that they incurred various expenses “in preparation and consummation of the completed deal as represented by defendants,” that Thomas Gold and Stroder lost substantial amounts of income and benefits when they terminated their previous employment in anticipation of taking over defendants’ business, and that they “incurred expenses in the pursuit and securing of alternative employment as a result of Defendants’ failed promises and representations.” Under these circumstances, we believe that the trier of fact could find that defendants’ promise must be enforced in order to avoid injustice.

Just as counts I through VI were thus sufficient to state a cause of action based on promissory estoppel, we believe that counts XIII through XVIII have adequately alleged the elements for equitable estoppel. The factual predicate for plaintiffs’ equitable estoppel counts is the same as that for its counts sounding in promissory estoppel. The two doctrines are, of course, somewhat different. While promissory estoppel requires proof of an unambiguous promise, equitable estoppel does not. Equitable estoppel is a doctrine that is invoked to prevent fraud and injustice; the test is whether, considering all the circumstances of the specific case, conscience and honest dealing require that a party be estopped. Equitable estoppel may arise whenever a party, by his word or conduct, reasonably induces another to rely on his representations, and leads another, as a result of that reliance, to change his position to his injury. (Payne v. Mill Race Inn (1987), 152 Ill. App. 3d 269, 277, 504 N.E.2d 193, 199.) Under the facts as alleged here, however, there is no practical difference between the two theories of recovery. Because we believe that plaintiffs have adequately pleaded the elements of promissory estoppel, we must therefore also conclude that they have adequately alleged the elements of equitable estoppel.

We turn then to the counts of plaintiffs’ complaint sounding in fraud. Unlike defendants’ motion to dismiss plaintiffs’ estoppel counts, which challenged the facial sufficiency of the pleadings, defendants’ motion to dismiss plaintiffs’ fraud claims was purportedly based exclusively on section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), which provides that a defendant may move for dismissal on the grounds that “the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)).

“Affirmative matter” -within the meaning of this statute is something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact unsupported by allegations of specific fact contained in or inferred from the complaint. It must, however, be something more than evidence offered to refute a well-pleaded fact in the complaint, for, as in the case of a motion under section 2 — 615 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), such well-pleaded facts must be taken as true for the purposes of a motion to dismiss under section 2 — 619(a)(9) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)). Longust v. Peabody Coal Co. (1986), 151 Ill. App. 3d 754, 757, 502 N.E.2d 1096, 1098.

In this case, no such “affirmative matter” was advanced. Based on defendants’ written motion, it appears that they actually meant to argue that the fraud counts, on their face, failed to state a cause of action. This was a question which should have been raised in a section 2 — 615 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), not a motion brought under section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). Even if defendants’ motion is treated as one brought pursuant to section 2 — 615, however, it should not have been granted.

Our supreme court has recently held that in order recover for fraudulent misrepresentation, a plaintiff must plead and prove: (1) a false statement of material fact, (2) knowledge or belief of the falsity by the party making it, (3) intention to induce the other party to act, (4) action by the other party in reliance on the truth of the statements, and (5) damage to the other party resulting from such reliance. Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 452.

Like plaintiffs’ equitable estoppel counts, plaintiffs’ counts in fraud incorporate by reference the basic substantive factual allegations set forth in their counts alleging promissory estoppel. For the purposes of the fraud counts, the requisite “false statement of material fact” was defendants’ representation that the transaction for the sale of the business was “affirmed and/or confirmed.” Plaintiffs further specifically allege that when defendants made the foregoing representation, which was, in effect, a promise of performance, they had no intention of keeping that promise, and they made the promise with the intention of having plaintiffs rely on it. As with the promissory estoppel and equitable estoppel counts, plaintiffs further allege that they took action based on defendants’ promises, in particular, that Thomas Gold and Stroder quit their jobs, and they once again set forth the various damages they sustained as a result of such reliance, including lost income, the expenses incurred in the pursuit and securing of alternative employment after the business deal failed, and the expenses incurred in “preparation and consummation of the completed deal as represented by Defendants.”

Defendants argue that the circuit court was nevertheless correct in dismissing the fraud counts because the allegedly false statements here constituted nothing more than misrepresentations about events to occur in the future, which cannot give rise to an action for fraud. This argument must fail. While it is true that misrepresentations of intention to perform future conduct, even if made without a present intention to perform, do not generally constitute fraud, our supreme court has recognized an exception to this rule. Under this exception, such promises are actionable if “the false promise or representation of future conduct is alleged to be the scheme employed to accomplish the fraud.” (HPI Health Care Services, Inc. v. Mt. Vernon Hospital, Inc. (1989), 131 Ill. 2d 145, 168.) This exception applies here. The allegations in plaintiffs’ complaint, along with the inferences which can reasonably be drawn from those allegations, clearly indicate that defendants promised plaintiffs that the transaction would be completed in order to induce plaintiffs to quit their jobs so that plaintiffs’ bargaining position would be weakened and defendants could then impose different contractual terms on them. The false promise or representation of future conduct, i.e., the promise that the deal would be completed, was thus alleged to be the scheme employed to accomplish the fraud.

Defendants also argue that plaintiffs’ fraud counts cannot stand in light of this court’s prior opinion in Gold v. Vasileff (1987), 160 Ill. App. 3d 125, 513 N.E.2d 446, which arose out of this same litigation. This argument is not well taken. In Gold v. Vasileff, we affirmed the circuit court’s dismissal, for failure to state a cause of action, of those counts of the complaint directed against defendants’ attorney, Nick Vasileff. Central to our holding was Vasileff’s status as an attorney and the public policy requirement that an attorney, when acting in his professional capacity, be free to advise his client without fear of personal liability to third persons if the advice later proves to be incorrect. (160 Ill. App. 3d at 128, 513 N.E.2d at 448.) These considerations obviously have no relevance with respect to the promises or representations made to plaintiffs by defendants themselves. Moreover, a review of the record discloses that, unlike the fraud counts at issue here, the fraud counts directed against attorney Vasileff contain no allegation that the false representations allegedly made by Vasileff constituted a scheme or were even any part of some scheme employed to accomplish the fraud.

Plaintiffs next argue that the circuit court erred when it struck plaintiffs’ claim for lost profits from the counts in their complaint alleging promissory and equitable estoppel and fraud. It has been recognized in this State that an award of damages based on lost profits may be appropriate in a promissory estoppel case when such an award is necessary in order to do complete justice. (Gerson Electric Construction Co. v. Honeywell, Inc. (1983), 117 Ill. App. 3d 309, 312-13, 453 N.E.2d 726, 728.) Although the plaintiffs have not cited and we have not found any Illinois decisions which have considered the matter, we believe that the same rule should apply where the cause of action is predicated upon equitable estoppel. Once evidence is adduced in this case, it may turn out that plaintiffs cannot establish their lost profits with reasonable certainty or facts may appear which establish that an award of lost profits is not, in fact, necessary in order to prevent injustice. At this point, however, we are merely at the pleading stage, and there is nothing on the face of plaintiffs’ complaint which would prevent them from recovering lost profits on their estoppel claims as a matter of law.

Because we are reversing the circuit court on this point and remanding the cause for further proceedings, there is one additional point we feel should be addressed with respect to the allowable damages on plaintiffs’ estoppel claims. The point is a straightforward one, and we raise it simply to provide guidance to the court and the parties on remand. It is simply this: if plaintiffs prevail on the merits on their estoppel claims, they should not be allowed to receive damages for both the lost profits they would have received had the transaction been completed as promised and the income they lost when they resigned from their old jobs. If the deal had gone forward as it was supposed to, plaintiffs would still have resigned from their jobs. Correspondingly, if defendants had not promised that the transaction would be completed, plaintiffs would not have left their current employment. As alleged in plaintiffs’ complaint, there is no set of circumstances under which plaintiffs would ever have continued to be paid for doing their old jobs, while earning income from the new business. To allow plaintiffs to recover for both lost wages and lost profits would therefore place them in a better position than they would have been in had the misrepresentation not occurred.

Although we believe that the circuit court erred in striking the claim for lost profits from plaintiffs’ estoppel counts, we agree with defendants that the circuit court properly struck the lost profit claims from plaintiffs’ fraud counts. In cases of fraud, the damages recoverable must have proximately resulted from the fraud. (37 C.J.S. Fraud § 141(b) at 466 (1943).) A plaintiff may recover damages for any injury which is the direct and natural consequence of his acting on the faith of defendant’s representations. (19 Ill. Law & Prac. Fraud §54 at 622 (1956).) As our previous discussion has indicated, the representation upon which plaintiffs relied here was that the transaction would be completed. Plaintiffs allege in their complaint that they quit their jobs in reliance on this representation and incurred expenses “in preparation and consummation of the completed deal as represented by Defendants.” For this, they seek lost wages and benefits resulting from the termination of their previous employment, expenses incurred in pursuing and securing new jobs, and the recovery of the expenses they incurred in the preparation and consummation of the deal. There is no dispute that all of these damages, which are in the nature of “out-of-pocket” losses, would be recoverable if proved at trial, for they certainly flow directly from plaintiffs’ having acted on defendants’ representations.

While the “out-of-pocket” losses claimed by plaintiffs are thus proper, we have found no Illinois authorities which support a claim for lost profits under the circumstances present here. We are aware that it has been held in this State that a “benefit-of-the-bargain” formula for damages is proper in an action for fraud. (See, e.g., In re Application of Busse (1984), 124 Ill. App. 3d 433, 439, 464 N.E.2d 651, 656.) Similarly, the Restatement (Second) of Torts §549(2) (1977) provides that in addition to damages measured by out-of-pocket loss,

“[t]he recipient of a fraudulent misrepresentation in a business transaction is also entitled to recover additional damages sufficient to give him the benefit of his contract with the maker, if these damages are proved with reasonable certainty.”

If this rule applied, we believe that lost profits would be a compensable element of damages. The problem, however, is that the rule appears to have been designed for situations where the transaction between the parties has actually been consumated based on the fraudulent misrepresentation (see Restatement (Second) of Torts §549, Comment on subsection (2), at 114-17 (1977)), a circumstance not present in the case before us. The sale of the business here was never completed and, unlike plaintiffs’ estoppel counts, plaintiffs’ fraud claims are not premised on the notion that defendants should be precluded, by their words or conduct, from denying that the deal would be completed as they had represented. As defendants’ alleged fraudulent misrepresentations did not ultimately induce plaintiffs to consúmate the bargain, benefit-of-the-bargain damages, including lost profits, are not appropriate.

Finally, defendants argue that the circuit court acted properly in dismissing the various promissory estoppel, equitable estoppel and fraud counts against defendants Edward R. Dubish, Pauline M. Dubish and Edray Foods, Inc., because they are not necessary parties to this litigation. Defendants raised this argument only in the most cursory fashion before the trial court, and the trial court correctly refused to rely upon it as a basis for its decision. It may well prove true that the Dubishes and Edray Foods, Inc., should not be held liable for anything which happened to plaintiffs. The problem is that defendants’ arguments regarding the status and liability of the various defendants can only be resolved after evidence is taken in the case. At this point, however, we are still at the pleading stage, and we cannot say as a matter of law that plaintiffs’ allegations, if true, would be insufficient to impose liability on defendants.

For the foregoing reasons, the February 17, 1988, order of the circuit court of Madison County is reversed insofar as it dismissed counts I through VI and counts XIII through XVIII of plaintiffs’ second amended complaint and ordered stricken the references to future lost profits contained in those counts. Its decision to strike the reference to future lost profits in counts XIX through XXIV is affirmed. In addition, the circuit court’s August 25, 1988, order dismissing counts XIX through XXX is reversed. The cause is remanded for further proceedings consistent with this order.

Affirmed in part; reversed and remanded in part.

WELCH and HOWERTON, 33., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HENRY LEE CARTER, Defendant-Appellant.
    Fifth District
    No. 5—89—0006
    Opinion filed December 27,1989.

      Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Henry Lee Carter, was charged by indictment on May 31, 1988, in the circuit court of Jackson County with the offense of unlawful delivery of a controlled substance. A warrant was served on Carter on June 1, 1988, in the Williamson County jail, where he was being held by Federal authorities on a parole violation. Carter was found to be in violation of the terms of his parole on June 15, 1988, and sentenced to an additional 16 months’ imprisonment. He was remanded to the custody of Jackson County on June 24, 1988, for trial on the present charge. On October 3, 1988, Carter moved to dismiss the indictment, arguing that he had been in custody since June 1, 1988, and that 124 days had elapsed without his having been brought to trial. At the hearing on the motion, the State argued that the 120-day period did not begin running until June 24, 1988, when Federal authorities surrendered custody of Carter. The State also argued that under the “Interstate Agreement on Detainers Act” (IADA) (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 8—9), it had 180 days to bring Carter to trial. The trial court rejected this argument, finding that Carter was not serving a “term of imprisonment.” Nevertheless, the court found that Carter was in Federal custody on June 1, 1988, and denied the motion to dismiss. Carter was subsequently tried and found guilty by a jury and sentenced to eight years’ imprisonment with credit for time served since June 24,1988.

Carter argues on appeal that the trial court erred in applying the 180-day speedy trial term in the “Interstate Agreement on Detainers Act” instead of the 120-day rule of section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 103— 5(a)). Carter maintains that he was not serving a “term of imprisonment” and that the IADA is therefore inapplicable. Our review of the record indicates that the trial court did not base its decision on the IADA but upon the fact that Carter was not in State custody until June 24, 1988. In fact, the trial court stated numerous times that Carter was not serving a term of imprisonment while he was being held in Williamson County pending the adjudication of his parole violation. In any event, we will address the application of both the IADA and section 103 — 5(a).

The IADA provides that whenever a person is serving a term of imprisonment in a party State, and whenever during the term of imprisonment there is pending in another party State an untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days of his request for final disposition of the charge. (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 8—9, art. Ill, par. (a).) The argument Carter advances is that his detention for an alleged parole violation was not a “term of imprisonment,” at least not until he was found to be in violation, and that the IADA speedy trial term is therefore inapplicable. Time served on parole by an Illinois prisoner is considered part of the “term of imprisonment.” (Ill. Rev. Stat. 1987, ch. 38, par. 1003-14-2(a); People v. Slawek (1985), 134 Ill. App. 3d 1080, 480 N.E.2d 925.) It is so defined by statute. There is no corresponding Federal statute, however, and it has been held that detention on a Federal parole violation is not a “term of imprisonment.” (United States v. Dodson (3d Cir. 1978), 585 F.2d 55.) Further, the IADA requires a demand by the defendant before the 180 days begins to run, and we find no record of any such demand having been made by Carter. Also, no detainer was ever lodged. The State did file a writ of habeas corpus ad prosequendum, but that is not considered a detainer. (People v. Befeld (1980), 90 Ill. App. 3d 772, 413 N.E.2d 550.) We therefore conclude that the IADA is inapplicable.

We must next determine whether Carter was brought to trial within 120 days as mandated by section 103 — 5(a). Section 103 — 5(a) provides that every person in custody in the State shall be tried by a court having jurisdiction within 120 days from the date he was taken into custody, unless there is a delay occasioned by the defendant. (Ill. Rev. Stat. 1987, ch. 38, par. 103 — 5(a).) Carter maintains that he was in State custody as of June 1, 1988, when the arrest warrant was served on him in the Williamson County jail. Although in Federal custody at the time, Carter argues that he was in joint custody and cites People v. Fosdick (1967), 36 Ill. 2d 524, 224 N.E.2d 242, in support of his argument. In Fosdick, after a complaint was filed in Champaign County charging the defendant with rape, he was arrested in De Witt County on unrelated charges. After escaping custody, he was arrested by Federal agents and again placed in the Champaign County jail. He was then arrested and served with the Champaign County warrant. Champaign County then voluntarily released him to be tried in De Witt County, then immediately filed new but identical charges against him. Our supreme court held that the 120-day speedy .trial term began when the defendant was served with the warrant and that neither the dismissal and refiling of the charges by Champaign County, nor the voluntary relinquishing of custody could be used to circumvent the 120-day rule. In reaching its conclusion, the court indicated in dicta that while the defendant was in Federal custody, he was also in State custody as of the time the warrant was served.

Our supreme court made clear in People v. Davis (1983), 97 Ill. 2d 1, 452 N.E.2d 525, that the holding in Fosdick was based on the fact that Champaign County voluntarily relinquished custody to another county and attempted to circumvent the provisions of section 103 — 5(a) by refiling an identical charge. The court in Davis also indicated that Fosdick was limited to its facts. The court went on to adopt the position that where a defendant “ ‘is in custody awaiting trial in one county and there is a charge pending against him in another county, *** he cannot be deemed to be in custody for the latter offense until such time as the proceedings against him in the first county are terminated and he is returned to, or held in custody for, the second county.’ ” (Davis, 97 Ill. 2d at 13, 452 N.E.2d at 531, quoting People v. Clark (1968), 104 Ill. App. 2d 12, 20, 244 N.E.2d 842, 845-46.) While Clark and Davis dealt with two counties in Illinois, the rationale has been extended to situations where the defendant is in Federal custody when the State charges are filed. (People v. Neumann (1986), 148 Ill. App. 3d 362, 499 N.E.2d 487; see also People v. Clark (1989), 188 Ill. App. 3d 130, 544 N.E.2d 32.) Based on the foregoing, we hold that Carter was not in State custody until June 24, 1988, when Federal authorities surrendered custody of him, and that he was not denied his right to a speedy trial.

Carter also argues that he should be given 22 days’ credit toward his sentence for the period from June 1, 1988, to June 24, 1988. Having concluded that Carter was not in State custody during that time, we hold that he is not entitled to any credit.

Accordingly, we affirm the trial court’s denial of Carter’s motion to dismiss.

Affirmed.

WELCH and CHAPMAN, JJ., concur.