author: JUSTICE RIZZI

text:
    WILLIAM A. SPENCER, Plaintiff-Appellant, v. RICHARD J. RIORDAN et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 90—3423
    Opinion filed December 30, 1992.
    Robert S. Minetz and Sarah S. Hirsen, both of Chicago, for appellant.
    Riordan, Larson, Bruckert & Moore, of Chicago (Alan L. Fulkerson and Brian W. Norkett, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, William A. Spencer, filed a complaint against defendants, Richard J. Riordan and Gerald E Fitzgerald. Count I of plaintiff’s amended complaint was an action for a declaratory judgment in which plaintiff alleged that defendants’ additional payments to the partnership were loans to be repaid at the statutory interest rate. Count II of plaintiff’s amended complaint was an action for injunctive relief in which plaintiff maintained that he would be irreparably harmed by the sale of a certain parcel of real estate because the proceeds of the sale would be distributed amongst the partners in an inequitable manner. Count III, an action for an accounting, and count IV, an action for breach of fiduciary duty, are still pending before the trial court. The trial court granted defendants’ motion for summary judgment as to counts I and II of plaintiff’s amended complaint. Plaintiff appeals the trial court’s grant of summary judgment.

The following issues are before this court for review: (1) whether the trial court erred when it granted defendants’ motion for summary judgment; (2) if we find that the trial court erred in granting defendants’ motion for summary judgment, whether the payments in question constituted loans to the partnership; and (3) if we find that the payments in question are loans to the partnership, what interest rate must apply. We reverse.

In the fall of 1972, defendants and George Meyer were shown a parcel of undeveloped real estate on the Mediterranean coast near Vera, Spain. The real estate was known as Puerto Rey. Meyer then introduced defendants to Paul A. Polansky. Polansky proposed that the four men purchase Puerto Rey, petition local authorities to zone the area for more dense residential use, and then sell the rezoned property to a real estate developer for profit.

During the winter of 1972, Fitzgerald encountered Spencer. At that time, Spencer expressed an interest in participating in the purchase of Puerto Rey. Fitzgerald later learned that Meyer reduced the amount of his contribution. Fitzgerald then wrote to Spencer advising him that he would like to participate in the venture.

In January of 1973, defendants, Spencer and Polansky (American partners) signed a partnership agreement that was prepared by Riordan. The American partners agreed to “purchase, sell, lease, and mortgage” certain land located in Spain.

Paragraph 11 of the partnership agreement provides that the American partners are to share profits and losses in proportion to their contribution to the partnership capital. The American partners did not discuss how additional funds would be raised if more capital were needed for purposes of the partnership.

Paragraph 12 of the partnership agreement recites a capital account for Polansky of $168,000; a capital account for Spencer of $73,000; and capital accounts for defendants of $120,000 each. The American partners funded their initial capital contributions with funds borrowed from the First National Bank of Chicago. The partnership purchased Puerto Rey with those funds. Puerto Rey was acquired by a Spanish concern known as Playa Puerto Rey, Sociedad Civil, an entity owned by the American partners, and represented by the law firm of Baker and McKenzie.

In March of 1973, the partnership agreement was amended to reflect that equal contributions were made by all of the partners. As amended, the partnership agreement reflected capital contributions of $121,000 by each partner.

Soon after the acquisition of Puerto Rey, Polansky obtained a zoning designation for the real estate which permitted dense residential use of the land. As a result, the partnership was authorized to build 2,800 residential units in Puerto Rey.

Additional capital contributions were raised in August of 1973. At that time, Polansky requested that the American partners contribute a total of $4,383, representing their share of the cost of architectural renderings submitted to Spanish officials at the zoning hearing. On August 30, 1973, Riordan mailed Polansky $2,922, representing an additional contribution of $1,461 each, from Fitzgerald and Riordan. Spencer sent Polansky a check for $1,461 under separate cover.

In addition, the partnership purchased a second parcel of Spanish realty known as Villa Ricos. Acquisition of Villa Ricos was funded by each partner’s contribution of an additional sum to the partnership. However, the partnership agreement was not amended to reflect the additional contributions.

In 1976, Polansky advised the partnership that the Spanish Ministry of Housing required that development of Puerto Rey begin immediately in order to maintain the parcel’s high density zoning designation. To comply with this requirement, the American partners decided to construct roads on the property at a cost of approximately $80,000. The cost of constructing the roads was paid in installments.

In February of 1976, defendants each paid their first installment of $5,681.81. Soon thereafter, Spencer sent Polansky his first installment of $5,681.81. The American partners then each paid a second installment of $8,100. In addition to constructing roads on Puerto Rey, the partners also obtained a survey of Villa Ricos. The cost of this survey was $2,700, and Riordan mailed a letter to each American partner requesting $675 for his respective share. Spencer paid his share. Following the contributions for the cost of constructing roads and obtaining the survey, each American partner had contributed $184,530 to the partnership, more than $63,500 in excess of the initial capital contribution recited in the previous amendment to the partnership agreement.

Between 1973 and 1982, the American partners sought a purchaser for Puerto Rey. All efforts to sell the real estate, however, proved unsuccessful. As a result, the American partners entered into a written agreement to allow Polansky to construct 46 apartment units, a tavern and a restaurant. The complex was to be situated on a beachfront area, and the American partners were hopeful that the development would make the remainder of the property more attractive to potential purchasers. The agreement required Polansky to pay the purchase price of the land from the closing proceeds on the sale of each apartment unit or by February of 1983, whichever occurred earlier.

The apartments were not sold as quickly as Polansky had expected, and he requested that the American partners grant him an extension of the February 1983 payment deadline. In January of 1983, the American partners agreed to allow Polansky an additional six months to pay for the property. At that time, no partner was willing to sell his interest in Puerto Rey merely for the total of his capital contribution.

In October of 1983, Polansky mailed Riordan $37,412.50 representing proceeds from the sale of the part of Puerto Rey on which Polansky built the apartments and bar. Riordan paid each American partner $12,470.83 and debited the partners’ capital accounts in an equal amount.

Construction of the apartments and bar did not attract the attention of potential investors. In 1983, the local Spanish Housing Minister refused to tender occupancy permits for the development unless the partners agreed to construct a sea wall. In April of 1984, Polansky received a written notice from the Spanish Housing Ministry that all further construction at Puerto Rey must cease, and that no occupancy permits would be issued until after the sea wall was constructed. Polansky informed the American partners of this action in May of 1984.

Riordan later wrote to Fitzgerald and Spencer. Riordan’s letter indicated that the cost of the sea wall would be approximately $48,875 for each American partner, and he requested a meeting of the American partners to discuss the matter. The American partners met in the summer of 1984. Defendants decided that a wall should be built. Spencer did not consent to the building of the sea wall with partnership funds. In December of 1984, Riordan received a letter from Polansky describing his lack of success in selling Puerto Rey and in lo-eating a contractor willing to construct a sea wall in exchange for an interest in the partnership. The American partners eventually hired a contractor to construct the sea wall.

On January 29, 1985, Polansky sent Riordan a telex informing him that the contractor who constructed the sea wall would place the equivalent of a mechanic’s- lien on Puerto Rey, and thereafter foreclose on the lien if the February installment on the sea wall was not paid. Riordan immediately forwarded copies of the telex to Fitzgerald and Spencer. Thereafter, defendants made additional payments to the partnership to finance construction of the sea wall. Spencer did not contribute to the cost of constructing the sea wall notwithstanding defendants' requests. Between February and June of 1985, defendants' each contributed $47,066 to the partnership in order to finance the first four installments of the cost of constructing the sea wall. The contributions made by defendants included two-thirds of the shortfall created by Spencer’s failure to contribute. Polansky contributed the remaining one-third of that shortfall.

In May of 1985, defendants travelled to Spain for the purpose of meeting Polansky. When they returned from Spain, Riordan wrote Spencer concerning his contribution to the cost of constructing the sea wall. Riordan told Spencer that the remaining American partners intended- to make the contributions necessary to fund construction of the sea wall, and that if Spencer did not contribute, his share of partnership profits would be diminished. Riordan’s letter read:

“Enclosed is a copy of the brief minutes which were taken by Paul Polansky’s secretary at one of the meetings we held a Paul’s home in Cortijo Grande. You will note the second paragraph with respect to your contribution to the cost of the wall. The 18%-27% shareholdings were estimated based upon what we believed would be the total expenditure for the wall. However, the position of the three of us is that the shareholdings will be rearranged when all of the costs and payments are known but we estimate that the percentages will be approximately as described in those minutes.
* * *
*** [Njone of us want to increase our participation in Puerto Rey ***. *** [A]ll of us would much rather see you make the payments than to rearrange the shareholdings.” (Emphasis in original.)

Despite this letter from Riordan, Spencer did nothing.

Later, on August 28, 1985, defendants and Spencer held a meeting in Fitzgerald’s office to discuss the sea wall and Spencer’s partidpation in the cost of constructing said wall. At the meeting, Spencer indicated that he would make a decision concerning his contribution to the cost of this project within one week. Between October of 1985 and February of 1986, Fitzgerald and Riordan each contributed an additional $62,250 to the partnership in order to finance construction of the sea wall. Again, Spencer contributed nothing. Spencer did not inform defendants that he did not intend to contribute.

In February of 1987, Riordan mailed an accounting for the Puerto Rey parcel to Fitzgerald and Spencer. The accounting reflected that the interests of the American partners had been adjusted. Spencer’s share had been reduced while Riordan’s and Fitzgerald’s shares were increased. Spencer did not dispute the accuracy of each partner’s contribution as set forth in the accounting. Spencer neither discussed the accounting with either Fitzgerald or Riordan, nor did he seek a judicial determination that the adjustment of the partnership interests was improper. Defendants adjusted the ownership percentages for Puerto Rey from 33.3% for each partner to 40.52% for Fitzgerald and Riordan, and 18.96% for Spencer.

One year later in April of 1988, Riordan wrote Fitzgerald and Spencer to advise them that Puerto Rey had been sold. In his letter, Riordan noted that the purchase price for the parcel was $1,500,000, and that he had received a down payment of $100,000. The sale was completed in August of 1988, and the proceeds totalling $1,401,992.84 were distributed in the following manner: The costs of sale were $42,232.42; Fitzgerald received $543,368.21; Riordan received $543,368.21; and Spencer was given $273,024.

On June 28, 1899, Spencer brought this lawsuit. Pursuant to an agreed order, the remaining $98,007.16 ($1,500,000-$!,401,992.84) was placed in escrow pending the result of this litigation. Thereafter, the parties filed cross-motions for summary judgment.

On November 27, 1990, the trial court entered an order denying Spencer’s motion for summary judgment, granting defendants’ motion for summary judgment, and directing that the escrow, including accumulated interest, be distributed in the following manner: $51,054.56 to Fitzgerald; $51,054.56 to Riordan; and $6,639.18 to Spencer. In addition, the trial court found that defendants’ additional payments were capital contributions to increase their percentage of ownership in the partnership, and that their additional payments should not be treated as loans. On November 29, 1990, Spencer filed a notice of appeal.

The first issue before this court is whether the trial court erred when it granted defendants’ motion for summary judgment. Defendants contend that the trial court's grant of summary judgment was proper because their additional payments to the partnership to finance construction of the sea wall constituted partnership contributions which increased their percentage of ownership and decreased plaintiff’s percentage of ownership. Plaintiff maintains that the trial court erred when it granted defendants’ motion for summary judgment because defendants’ additional payments were loans to the partnership which must be repaid at the statutory interest rate.

Summary judgment is appropriate only when the pleadings, depositions, admissions and affidavits in the record present no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005; Palomar v. Metropolitan Sanitary District of Greater Chicago (1992), 225 Ill. App. 3d 182, 188; Village of Glenview v. Northfield Woods Water & Utility Co. (1991), 216 Ill. App. 3d 40, 47, 576 N.E.2d 238, 243.) When all parties file for summary judgment, the court is invited to decide the issues thus presented as a question of law and the entry of summary judgment for one party or the other is proper. In re Estate of Bresler (1987), 159 Ill. App. 3d 535, 540, 510 N.E.2d 1057, 1060.

An appellate court must take a deferential approach to the findings made below on disputed factual issues; however, “the scope of our review on questions of law is independent, not deferential.” (Havens v. Miller (1981), 102 Ill. App. 3d 558, 567, 429 N.E.2d 1292, 1298.) The correctness of a ruling on a question of law may be determined on appeal independent of the trial court’s judgment. Crum v. Gulf Oil Corp. (1979), 70 Ill. App. 3d 897, 899, 388 N.E.2d 1008, 1011.

In the present case, the material facts are not disputed. All parties concede that plaintiff did not contribute to the cost of constructing the sea wall. The legal result of this undisputed fact is solely a question of law. Accordingly, we will review the record and make an independent determination as to how the payments made by defendants should be construed.

We find that the trial court erred when it granted defendants’ motion for summary judgment. Additional payments made by defendants must be treated as loans to the partnership.

Section 18 of the Uniform Partnership Act (Act) states in relevant part:

“18. Rights and duties of partners inter se
§18. The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules:
(a) Each partner shall be repaid his contribution, whether by way of capital or advances to the partnership property and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied; and must contribute toward the losses, whether of capital or otherwise, sustained by the partnership according to his share in the profits.
(b) The partnership must indemnify every partner in respect of payments made and personal liabilities reasonably incurred by him in the ordinary and proper conduct of its business, or for the preservation of its business or property.
(c) A partner, who in aid of the partnership makes any payment or advance beyond the amount of capital which he agreed to contribute, shall be paid interest from the date of the payment or advance.
(d) A partner shall receive interest on the capital contributed by him only from the date when repayment should be made.” Ill. Rev. Stat. 1985, ch. 106 1/2, par. 18(a) through (d).

In addition, paragraph 5 of the partnership agreement states:

“5. The management of the Partnership shall reside exclusively in the partners and all decisions shall be taken by unanimous vote, provided, however, that the partners may, from time to time, designate and empower one or more partners to perform specific acts on behalf of this Partnership.”

Furthermore, paragraph 11 of the partnership agreement provides:

“11. The net income of this Partnership shall be distributed to each partner in the proportion that his capital contribution bears to the total capital contribution of all partners. Losses shall be borne in the same proportion.”

The partners did not vote unanimously to build the sea wall, to make additional contributions to finance construction of the wall, or to reduce plaintiff’s one-third interest. These actions were undertaken by defendants without plaintiff’s consent. Defendants asked plaintiff to consent to the building of the sea wall using partnership funds on numerous occasions. Defendants also asked plaintiff to contribute funds to pay for the building of the sea wall. Plaintiff never consented to the building of the sea wall with partnership funds, and he never agreed to contribute funds to pay for construction of said wall. In addition, plaintiff never agreed to reduce his percentage interest because defendants advanced funds for construction of the sea wall. The partnership agreement does not have a provision requiring partners to make additional contributions under any circumstances. Furthermore, the partnership agreement does not state that a partner’s percentage interest will be reduced upon his refusal to make additional contributions. Accordingly, the trial court’s grant of summary judgment violated section 18 of the Act and paragraph 5 of the partnership agreement. The interest drawn on defendants’ advances should be computed at the interest rate of 5% pursuant to section 2 of the Interest Act. Ill. Rev. Stat. 1985, ch. 17, par. 6402.

We are not persuaded by defendants’ argument that plaintiff’s claim is barred by the doctrine of acquiescence by silence. “It has generally been held that no waiver is occasioned by *** mere silent acquiescence, especially where it does not appear that the [silent party] understood that there was a waiver or that he relied thereon in proceeding to do the act claimed as a forfeiture.” (Village of Lake Bluff v. Dalitsch (1953), 415 Ill. 476, 483, 114 N.E.2d 654, 659.) “[A] person is not estopped by his silence when there is no positive duty or opportunity to speak ***.” Merchants National Bank v. Frazier (1946), 329 Ill. App. 191, 206, 67 N.E.2d 611, 619.

The doctrine of acquiescence by silence is inapplicable to the present case. It is undisputed that defendants in the present case knew that plaintiff did not consent to contribute to the cost of building the sea wall or to their decision to reduce his partnership percentage. Plaintiff had no duty to inform his partners that they could not build the sea wall or change his partnership share without his consent. Defendants knew that the partnership agreement required that these actions be taken only upon unanimous consent of the partners. Plaintiff’s silence coupled with defendants’ letters did not impose a duty upon plaintiff to respond or forfeit his rights. Instead, defendants’ actual knowledge of plaintiff’s refusal to consent is controlling.

Accordingly, we rule that the trial court erred when it granted defendants’ motion for summary judgment. Defendants’ payments constituted loans to the partnership for which they are entitled to receive interest at five percent per annum. Defendants’ were not entitled to increase their percentage interest in the partnership.

For the aforementioned reasons, we reverse the judgment of the circuit court.

Reversed.

GREIMAN, P.J., and TULLY, J., concur.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    MARK FAUSTRUM, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF WAUCONDA et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0495
    Opinion filed February 5, 1993.
    Stanley H. Jakala, of Berwyn, for appellant.
    John C. Broihier, of DiLeonardi & Associates, Ltd., of Des Plaines, for appellees.
   JUSTICE DOYLE

delivered the opinion of the court:

The plaintiff, Mark Faustrum, appeals the trial court’s dismissal, with prejudice, of his complaint against the defendants, Board of Fire and Police Commissioners of the Village of Wauconda, Illinois (the Board), and B.J. Goodyear, chief of police of the Village of Wauconda. The Board had terminated the plaintiff’s employment with the Wauconda police department. The plaintiff, who was a probationary officer, claimed that he was entitled to notice and a hearing prior to his discharge.

On May 24, 1990, while he was a student at the Police Training Institute (the Institute), the plaintiff allegedly engaged in misconduct involving the improper use of a firearm. On June 5, 1990, the director of the Institute heard testimony from the plaintiff and reviewed statements from witnesses to the alleged misconduct. The director found the plaintiff guilty of misconduct, and the plaintiff was removed from the training course. On June 8, 1990, the Board terminated the plaintiff’s employment for failing to complete the training course and for failing to meet “the expectations of the Village of Wauconda.” The Board itself never held a hearing but relied on reports from the director of the Institute and the defendant B.J. Goodyear, the Chief of the Wauconda police department.

On July 1, 1990, the plaintiff filed a three-count complaint in the circuit court alleging that he was entitled to a pretermination notice and hearing before the Board. According to the plaintiff, the Board violated his right to due process by denying him a pretermination notice and hearing. The plaintiff requested that the trial court review the administrative decision of the Board, declare that the plaintiff had a right to a pretermination notice and hearing and reverse the decision of the Board to discharge him from the police department.

The defendants moved to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). On February 4, 1991, the trial court dismissed all three counts of the plaintiff’s complaint, without prejudice. The trial court found that the plaintiff had failed to state a claim against the Board, but it directed that the plaintiff could refile its claim against the defendant Goodyear. The plaintiff appealed. We dismissed the plaintiff’s appeal on November 18, 1991, on the ground that the plaintiff had not appealed from a final, appealable order. (Faustrum v. Board of Fire & Police Commissioners of the Village of Wauconda (2d Dist. 1991), No. 2— 91 — 0252 (unpublished order under Supreme Court Rule 23).) On March 24, 1992, the trial court entered an order dismissing the plaintiff’s claim with prejudice. The plaintiff now appeals the March 24, 1992, order. We have jurisdiction to consider the plaintiff’s appeal, and we affirm.

Before it deprives an individual of liberty or property, a governmental agency such as the Board must provide that individual with the procedural due process guaranteed by the fourteenth amendment. (Board of Regents of State Colleges v. Roth (1972), 408 U.S. 564, 569, 33 L. Ed. 2d 548, 556, 92 S. Ct. 2701, 2705; Daleanes v. Board of Education of Benjamin Elementary School District 25 (1983), 120 Ill. App. 3d 505, 517.) A person has a property interest in his job where he has a legitimate expectation of continued employment (Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 107) based on a legitimate claim of entitlement. (Roth, 408 U.S. at 577, 33 L. Ed. 2d at 561, 92 S. Ct. at 2709; Caauwe v. Police Pension Board (1991), 216 Ill. App. 3d 313, 318.) In order to show that he has a legitimate expectation of continued employment with the Wauconda police department which would entitle him to pretermination notice and a hearing before the Board, the plaintiff must point to a specific ordinance, State law, contract or understanding limiting the ability of the Board to discharge him. See Bishop v. Wood (1976), 426 U.S. 341, 344, 48 L. Ed. 2d 684, 690, 96 S. Ct. 2074, 2077; Sullivan v. Board, of Fire & Police Commissioners (1981), 103 Ill. App. 3d 167,171.

The Board has the authority to hire and fire Wauconda police officers pursuant to the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1991, ch. 24, par. 10 — 2.1—1 et seq.). Section 10 — 2.1—17 of the Code provides in relevant part:

“[N]o officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense.” (Ill. Rev. Stat. 1991, ch. 24, par. 10-2.1-17.)

There is no dispute that section 10 — 2.1—17 provides police officers with property interests in their jobs. According to the Illinois Supreme Court, however, section 10 — 2.1—17 does not apply to probationary officers. Romanik v. Board of Fire & Police Commissioners (1975), 61 Ill. 2d 422, 425.

The plaintiff admits that because he was a probationary officer, he derived no property rights from section 10 — 2.1—17. However, the plaintiff correctly points out that a municipality may provide greater protection to probationary officers than that provided by section 10— 2.1 — 17. For example, a municipal ordinance establishing procedural requirements for termination of probationary employees will create an entitlement. (Lewis v. Hayes (1987), 152 Ill. App. 3d 1020, 1024.) The plaintiff claims that the regulations of the Wauconda police department create such an entitlement. In particular, he identifies subparagraph (M) of the regulations regarding department discipline, which provides:

“Recourse of Aggrieved Sworn Members: Any Department member who feels aggrieved as a result of disciplinary action may apply, within twenty four (24) hours after notification of such action, for a hearing before the [Board].”

Subparagraph (L) identifies dismissal from the service as a possible disciplinary action. The plaintiff also points to subparagraphs (F) through (K), which delineate specific procedures for disciplining officers. The plaintiff argues that because these police department rules draw no distinction between probationary and nonprobationary department members, they provided him, as a probationary police officer, with the right to a hearing.

The trial court dismissed the plaintiff’s complaint based on the court’s conclusion that the police department regulations did not bind the Board. The trial court reasoned that because the police department and the Board are separate entities, and because the Board, not the police department, actually discharged the plaintiff, the Wauconda police department’s rules did not apply.

Prior to the hearing on the defendant’s motion to dismiss, the plaintiff had provided the trial court with portions of the rules and regulations of the Wauconda police department, including the portions cited above concerning department discipline. The trial judge stated at the hearing that in order to determine whether these rules provided the plaintiff with a property right, he would have to review all of the rules and regulations pertaining to employees of the Wauconda police department. The record establishes that the trial court based its decision on the entire set of the rules and regulations. However, the record on appeal contains only the portion of the rules and regulations that the plaintiff initially supplied to the trial court. Although section 8 — 1002 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 8 — 1002) requires that we take judicial notice of municipal ordinances, it does not require us to take judicial notice of ordinances that we do not have before us and to which we do not have access. (Carrillo v. Hamling (1990), 198 Ill. App. 3d 758, 763; Thiede v. Tambone (1990), 196 Ill. App. 3d 253, 258.) The plaintiff was obligated to supply this court with the full text of the rules pertaining to the Wauconda police department and because he has failed to do so, the record is incomplete.

In the absence of a complete record, we will assume that the trial court based its finding on sufficient facts. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 392; In re Marriage of Cepek (1992), 230 Ill. App. 3d 1045, 1046; Salazar v. Wiley Sanders Trucking Co. (1991), 216 Ill. App. 3d 863, 868.) Nothing in the portion of the regulations the plaintiff has provided to us negates the trial court’s finding that the police department’s rules do not bind the Board.

Furthermore, we conclude that even if the Board was obligated to follow the disciplinary regulations of the Wauconda police department, those regulations did not entitle the plaintiff to a pretermination notice or hearing. The regulations merely refer to “members” and “employees.” They neither specifically exclude nor specifically include probationary officers. The defendants point out that section 10 — 2.1—17, which Romanik held did not apply to probationary employees, also refers to “officers” and “members” and does not specifically exclude probationary officers.

In Lewis, the court found that the plaintiff had a protectable property interest in his employment as a probationary police officer. (Lewis, 152 Ill. App. 3d at 1024.) In that case, however, the municipality had enacted rules which specifically prescribed certain procedures for the removal of probationary employees. (Lewis, 152 Ill. App. 3d at 1024.) Similarly, where the State Police Field Training Manual provided for a formal review and evaluation prior to the termination of probationary officers, the plaintiff had a property interest in his continued employment as a probationary officer with the Illinois State Police. (Fernandes v. Nolen (1992), 228 Ill. App. 3d 424, 427.) We refuse to limit the discretion of the Board to discharge probationary officers absent a similar clear policy statement in the Board’s regulations.

The plaintiff analogizes his situation to that in Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482. In Duldulao, the court held that although the plaintiff was an at-will employee, her employer could be bound by provisions in its employee manual which prescribed procedures for the discharge of employees. (Duldulao, 115 Ill. 2d at 490.) We recognize that municipal fire and police boards are obligated to follow their own rules regarding the discharge of probationary officers. (See Farmer v. McClure (1988), 172 Ill. App. 3d 246, 255.) Duldulao, however, held that the presumption of at-will employment will not be overcome unless the language in the employer’s policy statement “contain[s] a promise clear enough that an employee would reasonably believe” that the employer has offered to provide him with pretermination procedures. Duldulao, 115 Ill. 2d at 490; see also Spann v. Springfield Clinic (1991), 217 Ill. App. 3d 419, 424 (policy statement not clear enough to constitute a promise to the employee); Anders v. Mobil Chemical Co. (1990), 201 Ill. App. 3d 1088, 1096 (disclaimer in policy handbook negated any obligation on the part of employer to follow procedures in handbook); Boulay v. Impelí Corp. (7th Cir. 1991), 939 F.2d 480, 482 (under Illinois law, suggestive rather than mandatory language in employment manual does not constitute promise to modify at-will employment relationship).

As Duldulao requires that employee manuals contain a clear statement before they will be held to modify an at-will employment relationship, Romanik requires municipalities to make a clear statement before they will be held to have altered the at-will status of probationary police officers. The policy underlying Romanik is that a probationer’s supervisors should have the unfettered discretion to determine whether such probationer is fit to be a police officer. (Brzana v. Martin (1991), 211 Ill. App. 3d 415, 421.) As our supreme court recognized:

“The science of testing cannot indicate how a person will react under situations of unmonitored trust, grave responsibility, or severe stress. Nor can it warn of such characteristics as rudeness, insubordination, arrogance, laziness, carelessness, dishonesty, or malice.” (Romanik, 61 Ill. 2d at 425.)

In the absence of a clear statement to the contrary in its regulations, therefore, we hold that the Board could lawfully discharge the plaintiff, a probationary employee, without a pretermination notice or hearing.

The judgment of the circuit court of Lake County is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE McCULLOUGH JUSTICE COOK,

text:
    CENTRAL WATER WORKS SUPPLY, INC., Plaintiff-Appellee, v. WILLIAM FISHER et al., Defendants-Appellants.
    Fourth District
    No. 4 — 92—0460
    Opinion filed February 4, 1993.

      COOK, J., specially concurring.
    George L. Chesley, of Chesley & Wilson, of Bloomington, for appellants.
    James P. Ginzkey, of Hayes, Schneider, Hammer, Miles & Cox, of Bloomington, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Central Water Works Supply, Inc., was granted a preliminary injunction against defendant William Fisher. Defendant was enjoined from soliciting, contacting customers of plaintiff, or selling products similar to products sold by plaintiff, or in any manner competing with plaintiff in a specific geographical area pursuant to a covenant not to compete contained in plaintiff’s shareholders’ agreement. Defendant brings this interlocutory appeal pursuant to Supreme Court Rule 307(a)(l) (134 Ill. 2d R. 307(a)(l)), contending the circuit court erred in granting the preliminary injunction because (1) plaintiff has no protectable interest and (2) the geographical scope of the preliminary injunction is overbroad. Defendant also contends the circuit court erred in excusing plaintiff from posting bond in this matter. We affirm.

Plaintiff, a wholesale distributor of water and sewer supplies, was formed in August 1990 by John Delich, defendant, Stan Schroedor, and Steven Mehnke. Plaintiff supplies over 100 products to municipalities, underground utility contractors, private industry, developers, subdivisions, city and State projects. Prior to forming plaintiff, Delich and defendant were employed by Water Products Company, a direct competitor of plaintiff. Delich was general manager of Water Products and defendant was the sales representative. Both men had become unhappy with Water Products and they decided to either attempt to purchase the Bloomington branch of that company or form their own company to compete with Water Products. Water Products has a branch in Bloomington but its corporate office, which covers the Chicago metropolitan area, is located in Aurora.

When their bid to purchase the Bloomington branch was unsuccessful, these four individuals formed plaintiff. These four men were the initial shareholders and directors of the company and Delich was president. As of the time of the hearing, defendant was still a shareholder and director of plaintiff. However, defendant took no active part in the management of plaintiff. Delich and defendant contributed $100,000 cash and signed off on a Small Business Administration (SBA) loan for $300,000. Each gave his personal residence and possessions as collateral for the SBA loan. In February 1991, plaintiff secured another SBA loan for $150,000 with a $50,000 cash contribution by Delich and defendant. In total, plaintiff has an outstanding debt of approximately $400,000.

In order to secure the SBA loan, the men were required to provide personal financial information and work history of the initial shareholders. Moreover, they had to submit a proposed budget for the first three years as well as sales and gross profit forecasts. The initial budget was $3 million and defendant’s share in the sales forecast was 50% of the budget.

The shareholders entered into a shareholders’ agreement which listed the following breakdown of shares issued: John Delich, 55 shares; William Fisher, 25 shares; Stan Schroedor, 10 shares; and Steve Mehnke, 10 shares. Paragraph 15 of the shareholders’ agreement stated:

“COVENANT NOT TO COMPETE. The parties hereto are all employees of the Company and each is important to the success of the new enterprise. The parties agree that if they should terminate their employment with the Company, that they will not compete with the Company in the geographical area in which the Company is then doing business for a period of three years after the termination of employment.”

This agreement was executed by all four shareholders on February 21, 1991. Delich testified that the purpose of the covenant not to compete was “to basically demonstrate on paper the commitment and the loyalty of the initial parties involved in starting the company.” This showing of commitment was for the benefit of the bank issuing the SBA loan as well as to evidence the shareholders’ commitment to each other and to the company.

In September 1991, defendant ended his employment with plaintiff. On April 7, 1992, defendant began working again for Water Products as a salesman in the same geographical area as he did for plaintiff with many of the same customers. Defendant was in the midst of divorce proceedings in which he was forced to sell his home. In order to complete the sale of his home, defendant was released from his pledge of his home as security for the SBA loan. Defendant remained personally obligated on the SBA loans.

Delich and defendant met informally in March 1992. At that meeting, they discussed the possibility that defendant would begin working for a competitor of plaintiff. Defendant testified Delich did not offer him a job but that was only because he had already stated he could not return to work for plaintiff at the salary he had when he originally left plaintiff. Defendant testified that Delich stated that his going to work for Water Products would have a serious negative impact on plaintiff.

On April 13, 1992, plaintiff filed its petition for preliminary injunction seeking to enforce the covenant not to compete contained in the shareholders’ agreement. Following a hearing on this matter, on May 6, 1992, the circuit court granted the preliminary injunction. This interlocutory appeal followed.

A preliminary injunction is a provisional remedy granted to preserve the status quo. (Ron Smith Trucking, Inc. v. Jackson (1990), 196 Ill. App. 3d 59, 63, 552 N.E.2d 1271, 1275.) The four factors which must be established before an injunction will be granted are that (1) a clearly ascertained right in need of protection exists; (2) irreparable harm will occur without the injunction; (3) there is no adequate remedy at law for the injury; and (4) success on the merits is likely. (Hartlein v. Illinois Power Co. (1992), 151 Ill. 2d 142, 156, 601 N.E.2d 720, 726-27.) In addition to consideration of the above criteria, the trial court must conclude that the benefits of granting the injunction outweigh the possible injury which defendant might suffer as a result thereof. (Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 1003, 516 N.E.2d 1313, 1317.) The sole question before us on appeal is whether the trial court abused its discretion in granting the preliminary injunction. We will not disturb the trial court’s findings unless they are against the manifest weight of the evidence. Decker, Berta & Co., Ltd. v. Berta (1992), 225 Ill. App. 3d 24, 27-28, 587 N.E.2d 72, 74.

The propriety of injunctive relief in the present case depends upon the enforceability of the restrictive covenant at issue. Because such covenant operates at least as a partial restraint of trade, it is scrutinized carefully by the courts to ensure that its intended effect is not the prevention of competition per se. Lee/O’Keefe, 163 Ill. App. 3d at 1003, 516 N.E.2d at 1317.

Restrictive covenants often appear in employment contracts and contracts for the sale of a business. Courts evaluate these restrictive covenants differently because of the difference in the nature of the interests sought to be protected. Courts impose a more stringent test of reasonableness on restrictive covenants in employment contracts than they do under restrictive covenants ancillary to the sale of a business. The basis for the distinction rests upon the fact that a purchaser in the sale of a business context holds more bargaining power than an ordinary employee in an employment context. Decker, Berta & Co., Ltd., 225 Ill. App. 3d at 28, 587 N.E.2d at 74.

If the covenant is ancillary to the sale of a business by the covenantor to the covenantee, then all the covenantee must show is that the restriction is reasonable as to time, geographical area and scope of prohibited business activity. If, however, the covenant is ancillary only to an employment agreement, the covenantee must show additional special circumstances, such as a near-permanent relationship with his employee’s customers and that, but for his association with the employer, the former employee would not have had contact with the customers, or the existence of customer lists, trade secrets or other confidential information. (Hamer Holding Group, Inc. v. Elmore (1990), 202 Ill. App. 3d 994, 1007, 560 N.E.2d 907, 915-16.) A covenant ancillary to an employment contract shields the employer from the possibility of losing his clientele to an employee who appropriates proprietary customer information for his own benefit, and also shields him from the possibility of losing customers with whom he enjoys a near-permanent relationship. A covenant ancillary to the sale of a business ensures the buyer that the former owner will not walk away from the sale with the company’s customers and good will, leaving the buyer with an acquisition that turns out to be only chimerical. Hamer, 202 Ill. App. 3d at 1007, 560 N.E.2d at 916.

In the sale of a business, the interest to be protected is the value of the good will that is purchased. In protecting the good will sold, the courts consider the fact that the bargaining position is not uneven as it is generally in an employer-employee relationship and that the courts are less likely to declare the sale of a business post-employment restraint invalid. (Stamatakis Industries, Inc. v. King (1987), 165 Ill. App. 3d 879, 888, 520 N.E.2d 770, 776.) Courts have also considered facts bearing on the intent of the parties to protect the integrity of a sale. Hamer, 202 Ill. App. 3d at 1008, 560 N.E.2d at 916.

In order to determine the appropriate standard of scrutiny, we must determine whether the covenant not to compete contained in the shareholders’ agreement is more like a covenant ancillary to the sale of a business or a covenant contained in an employment contract. Defendant contends this covenant is more like that of one in an employment contract. Defendant further contends that plaintiff has no protectable interest because he cannot show defendant acquired confidential information through his employment with plaintiff and subsequently attempted to use that information for his own benefit or that the customer relationship is near permanent and that, but for his relationship with plaintiff, defendant would not have had contact with the customers in question. Lee/O’Keefe, 163 Ill. App. 3d at 1004, 516 N.E.2d at 1318.

On the other hand, plaintiff alleges the covenant in question here is more like one ancillary to the sale of a business. Plaintiff contends the covenant was part and parcel of the business transaction forming the company and that the parties all intended it to be evidence of good faith or good will to attempt to make the company successful. Plaintiff argues there was no unequal bargaining power between the parties.

We agree with plaintiff that this covenant not to compete is more akin to one ancillary to the sale of a business. As an initial shareholder and capital contributor, defendant essentially purchased a portion of the new company. Each of the four initial shareholders quit his employment with Water Products to form plaintiff. They each signed the shareholders’ agreement with the intention that each would be bound by the covenant and not walk away with the customers and good will brought from Water Products. The covenant was included in the agreement to be outward evidence of their loyalty and commitment to the company and each other and to ensure that they would not do anything to hinder the success of the company. All of the initial shareholders were of equal bargaining power when they drafted and entered into the shareholders’ agreement.

This covenant is not like one ancillary to an employment contract for the following reasons. First, there is not a near-permanent relationship with the customers nor can it be said that, but for defendant’s association with plaintiff, he would not have had contact with the customers. The evidence indicated that the four initial shareholders had contact with the customers because of their association with Water Products rather than plaintiff. By forming a new company to directly compete with Water Products, the shareholders hoped to lure customers away from Water Products to become customers of plaintiff. All of the business conducted, whether by Water Products or plaintiff, was done through competitive bidding and the pricing system was the same for both companies.

Accordingly, we conclude this covenant is more analogous to a covenant not to compete which is ancillary to the sale of a business. To enforce such a covenant, the purchaser must first show a protectable business interest which has been injured by his former employee’s unfair competition. If the purchaser establishes this interest, then the purchaser need only show that the restriction is reasonable as to time, geographical area and scope of prohibitive business activities. Decker, Berta & Co., Ltd., 225 Ill. App. 3d at 30, 587 N.E.2d at 75.

Plaintiff has a protectable interest in its success as a company. Delich testified defendant was responsible for 50% of the sales forecast when the company was formed. Defendant was one of the top salesmen at Water Products. Inasmuch as plaintiff and Water Products are in direct competition and defendant personally knows the customers, allowing defendant to solicit business in the geographical area would certainly cause injury to plaintiff by taking away sales. We find plaintiff has a protectable interest which has been and will be injured by defendant’s working for Water Products in the same geographical area in which plaintiff does business.

We must next address whether the terms of the restrictive covenant were reasonable. Defendant does not challenge the three-year limitation contained in the covenant. Durational restrictions of three years have been upheld. (Hamer, 202 Ill. App. 3d at 1009, 560 N.E.2d at 917.) Rather, defendant contends the geographical scope is over-broad.

The covenant itself described the restricted area as “the geographical area in which the Company is then doing business.” The trial court found this area to be that consisting of “Bloomington west to the western border of Peoria County, straight North to Interstate 80, Interstate 80 across to Indiana border (this includes the counties which border on 1-80), Indiana border to Effingham, Effingham straight to Sangamon County back to Peoria, and all counties contained within said boundaries.”

Defendant testified that Water Products has a branch office in Bloomington but its corporate office is located in Aurora. Water Products services Cook County as well as Du Page County, two areas in which plaintiff does not do business. These areas are outside the geographical area described in the court’s order granting the preliminary injunction. The trial court noted defendant was not enjoined from working for Water Products, but only from contacting customers in that specifically delineated area. Inasmuch as defendant is able to contact customers in the Cook and Du Page County areas to earn his livelihood, we do not find the geographical limits set by the trial court were manifestly erroneous.

Furthermore, we believe plaintiff has established the other elements necessary for us to affirm the granting of a preliminary injunction. First, a threatened business interest is an identifiable right which may be protected by injunctive relief. (In re Marriage of Joerger (1991), 221 Ill. App. 3d 400, 405, 581 N.E.2d 1219, 1224.) Next, the injury the party fears need not be irreparable or incapable of compensation but merely denote transgressions of a continuing nature. The mere threat of dissipation can be considered by this court in determining the risk of irreparable harm. (Joerger, 221 Ill. App. 3d at 407, 581 N.E.2d at 1225.) The loss of customers and sales and the threat of the continuation of such loss to a legitimate business interest is sufficient to show that plaintiff will suffer irreparable injury unless protected by the court. (Eagle Books, Inc. v. Jones (1985), 130 Ill. App. 3d 407, 411, 474 N.E.2d 444, 447.) Delich testified that if defendant is allowed to solicit business in the Bloomington area, plaintiff will be severely harmed and will lose customers and sales. Thus, plaintiff has established that it will suffer irreparable injury unless protected by the court.

A legal remedy is inadequate where damages are difficult to calculate at the time of the hearing. (Eagle Books, 130 Ill. App. 3d at 411, 474 N.E.2d at 448.) Here, because of the potential loss of profits and customers to plaintiff by defendant’s competition in the geographical area, the damages are difficult to calculate. Thus, plaintiff has established thé inadequacy of a legal remedy.

Finally, generally a party seeking a preliminary injunction must show that success on the merits is likely. Because of our determination that formation of the plaintiff and the covenants included therein is comparable to the sale of a business, there is a fair question of the existence of the right to enforce the covenant and likelihood of success.

Defendant also contends the circuit court abused its discretion in denying his request that plaintiff give bond in this matter. He alleges plaintiff is thinly financed and its ability to respond in damages is questionable.

Section 11 — 103 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 11 — 103) provides:

“Bond. The court in its discretion, may before entering a restraining order or a preliminary injunction, require the applicant to give bond in such sum, upon such condition and with such security as may be deemed proper by the court, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.”

When a preliminary injunction order is issued after notice and hearing, it is not error for the trial court to issue the injunction without bond. Failure to request a bond or object to the lack of a bond constitutes waiver of the necessity for a bond. (Hoover v. Crippen (1987), 151 Ill. App. 3d 864, 869, 503 N.E.2d 848, 853; K.F.K. Corp. v. American Continental Homes, Inc. (1975), 31 Ill. App. 3d 1017, 1021-22, 335 N.E.2d 156, 159-60.) At the hearing on plaintiff’s petition for a preliminary injunction when the injunction was issued, defendant did not request a bond or object to the lack of a bond. He has thus waived the issue.

In his motion to dissolve the preliminary injunction, defendant alleged the preliminary injunction was erroneously issued because it was entered without the bond requirement. He asserts this was sufficient to bring the issue to the circuit court’s attention in order to preclude a finding of waiver. Even were we to accept defendant’s conclusion as true, and find he has not waived this issue, we believe his position is meritless.

Where a preliminary injunction has been properly issued, any error in failing to require a bond or in setting an inadequate bond does not injure the party against whom the order is allowed, and the order will not be reversed simply because of the absence or inadequacy of bond. (American Warehousing Services, Inc. v. Weitzman (1988), 169 Ill. App. 3d 708, 713, 533 N.E.2d 366, 369.) Because the preliminary injunction was properly issued, any error in not requiring a bond is not a ground for reversal.

Thus, we find the trial court did not abuse its discretion in granting the preliminary injunction.

Affirmed.

GREEN, J., concurs.

JUSTICE COOK,

specially concurring:

Plaintiff corporation was formed in August 1990 by Delich, Fisher, Schroedor, and Mahnke. Each of the four quit his employment with a competing corporation, Water Products, in order to form plaintiff. Delich had been general manager of Water Products; Fisher had been sales representative and one of Water Products’ top salesmen. The contacts with customers established by each of the four shareholders had been developed through his association with Water Products, not through any employment with plaintiff. Plaintiff allowed Mahnke to return to Water Products in August 1991. Fisher left his employment with plaintiff after only a year, in September 1991, and returned to work at Water Products in April 1992.

The majority opinion states it must “determine whether the covenant not to compete contained in the shareholders’ agreement is more like a covenant ancillary to the sale of a business or a covenant contained in an employment contract.” (240 Ill. App. 3d at 957.) The majority opinion appropriately decides the covenant cannot be sustained as one ancillary to an employment contract, but goes on to conclude the covenant is therefore “more analogous to a covenant not to compete which is ancillary to the sale of a business.” (240 Ill. App. 3d at 958.) There is a third possibility, that the covenant is not ancillary to anything, and is therefore unenforceable as an unreasonable restraint on competition. Restatement (Second) of Contracts §187 (1981); Marathon Petroleum Co. v. Chronister Oil Co. (C.D. Ill. 1988), 687 F. Supp. 437 (sale of two gas stations did not justify covenant prohibiting seller from opening any other stations).

As the majority states, with the sale of a business the interest to be protected is the value of the good will that is purchased; “[a] covenant ancillary to the sale of a business ensures the buyer that the former owner will not walk away from the sale -with the company’s customers and good will, leaving the buyer with an acquisition that turns out to be only chimerical.” (240 Ill. App. 3d at 957.) In this case it is difficult to view plaintiff corporation as purchasing any good will from defendant Fisher or from anyone else. If any right to a relationship with customers or good will existed here, it belonged to Water Products and was never transferred to plaintiff.

Plaintiff will be injured if Fisher competes with it, just as Water Products was injured when Fisher and the others left, but mere avoidance of injury is not sufficient justification to enforce a covenant not to compete. All competition is more or less injurious to the participants, but public policy favors competition. The fact that Fisher is a very good salesman and any company losing him will be harmed does not justify enforcing a covenant not to compete in an employment agreement. There must be something in the nature of the business which engenders customer loyalty (Office Mates 5 North Shore, Inc. v. Hazen (1992), 234 Ill. App. 3d 557, 571, 599 N.E.2d 1072, 1082), and there was nothing like that in plaintiff’s business here.

Instead of attempting to force this situation into the categories of (1) employment contract or (2) sale of business, we should take a broader view. The reason covenants not to compete are deemed valid only if ancillary to some other transaction is because such covenants will be sustained only where their benefits outweigh their harm. If no other transaction accompanies the covenant there is no benefit to be balanced. A naked covenant against competition is per se invalid. The Restatement recognizes that the two categories discussed in the Illinois cases are not exclusive. (Restatement (Second) of Contracts §188, Comment e, at 43-44 (1981).) The Restatement expressly mentions a third category, that of a promise by a partner not to compete with the partnership. (Restatement (Second) of Contracts §188(2)(c) (1981).) I would be willing to go further, and recognize that a transaction where individuals establish a business in which they will be employed is a sufficient ancillary transaction to support an enforceable covenant not to compete.

The question may be asked: “where employees form a business, can they agree to exchange covenants not to compete, if the nature of the business would not otherwise justify a covenant?” I believe the answer is yes. Restrictive covenants are enforced in connection with the sale of a business even if the nature of the business does not engender customer loyalty, that is, even if the business has no confidential information, no near-permanent customers, and provides no special contacts with customers. (See Lee/O’Keefe, 163 Ill. App. 3d at 1004, 516 N.E.2d at 1318.) With the sale of a business, it is only necessary to show that the restriction is reasonable in time, area, and scope. (Hamer, 202 Ill. App. 3d at 1007, 560 N.E.2d at 915; Decker, Berta & Co., 225 Ill. App. 3d at 30, 587 N.E.2d at 75.) A similar view should be taken of partners or others who enter into the formation of a business. The legitimate expectations of the investors are entitled to consideration. They, as well as the purchasers of a business, are entitled to a transaction which is more than “chimerical.” Co-ownership of a business is a tighter bond than employment.

It is troublesome that the parties could leave Water Products, where they developed their customer contacts in the first place, and then agree not to return with those contacts to Water Products. Still, whatever rights Water Products may have against other parties will apparently exist even after this decision and should not affect it. Although a court should consider the public interest in evaluating covenants not to compete, the private interests of Water Products do not rise to that level.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STANLEY ROUNDTREE et at., Defendants-Appellees (Dawn R. Hedden, Defendant).
    Fourth District
    No. 4 — 92—0152
    Opinion filed February 4, 1993.

      Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and David P. Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

The State appeals from the Champaign County circuit court’s grant of defendants’ motion to suppress evidence seized during an automobile stop. It argues reasonable and articulable facts existed to justify the officers’ stop of the suspect vehicle. We disagree and affirm.

On November 2, 1991, City of Champaign police officer Rob Morris was on routine traffic patrol with his partner, Officer Tom Walton. They drove a marked police vehicle and were in uniform. While on patrol they found themselves behind the vehicle in which defendants Stanley Roundtree, Toby Huber, and Dawn Hedden were travelling. According to Morris’ testimony at the suppression hearing, Huber, the backseat passenger, looked back toward the squad car several times and appeared very nervous. Morris responded to Huber’s actions by radioing his dispatcher and requesting information through the Metropolitan Computer-Assisted Dispatch (METCAD) about the license plate and registration of the suspect vehicle.

After following the suspect for approximately four blocks, the dispatcher responded the information received from METCAD was returned as “no record on file.” The officers then stopped the vehicle to investigate whether it was properly owned and registered. Hedden was the driver and Roundtree was the passenger in the front seat.

A brief search of the vehicle occurred after the officers noted several furtive gestures by Huber within the vehicle. Huber reportedly had tried to reach over and into a bag located to his left within the vehicle. Officer Morris saw a weapon within the bag, drew his service revolver and confiscated the bag.

Morris conceded that before they stopped the vehicle they had not observed the occupants in the vehicle break any laws or municipal ordinances. Their sole reason for stopping the vehicle was the information received from METCAD indicating no record on file regarding the registration of the suspect vehicle.

Morris testified he frequently checked registrations and driver’s license of vehicles in the performance of his duties on traffic patrol. He performed these checks by requesting information from METCAD through his police dispatcher. Morris indicated problems often occur with the speed in which this information is relayed to him and sometimes the system goes down. However, he opined it was an effective tool which was reasonably relied on by him in the course of his professional responsibilities to evaluate whether to arrest or issue traffic citations to individuals.

Morris also indicated the system has been reliable and accurate in obtaining information about the status of an individual’s license plate or registration. When asked what “no record on file” indicated, Morris replied:

“It could mean several things. It could mean that the plates are very new, and it has not gone through the system yet. It could mean that the plates are very old, and has — the system has purged them. We found plates that are very old with stolen stickers pasted or taped on, and various other problems.”

Morris also relied on the information received from METCAD to determine whether the individual had paid for registration, the vehicle was stolen, whether warrants or other information concerning the owner of the vehicle existed, and the status of the owner’s driver’s license. He relied on this information to decide whether to issue someone a citation for having no valid registration. During cross-examination, Morris indicated the message “no record on file” would not be used if the license plate was registered to a different vehicle than that on which it was displayed.

The trial judge granted defendants’ motion to suppress evidence seized from the vehicle during the traffic stop, stating:

“The heart of the difficulty in analysis is a dearth of facts presented from which the Court could conclude that the officer could reasonably infer from the circumstances presented, that an offense was involved. *** Failing to be entered into the computer is not an offense in the State. The officer himself explained that having no record on file could mean several things that bear no relation to unlawful conduct. *** The record is devoid of circumstances that from which the officer might infer that a status of ‘no record on file’ with METCAD is a circumstance permitting an inference relating to criminal conduct.”

The State contends the testimony at the suppression hearing established reasonable and articulable facts to justify the arresting officers’ stop of defendants’ vehicle.

Section 107 — 14 of the Code of Criminal Procedure of 1963 authorizes law enforcement officers to detain a person in a public place for a reasonable period when the officer reasonably infers from the circumstances the person is committing or is about to commit an offense. Ill. Rev. Stat. 1991, ch. 38, par. 107 — 14.

Officers may stop a vehicle and detain the driver only where there is at a minimum articulable and reasonable suspicion the driver is unlicensed, the vehicle is unlicensed or unregistered, or the vehicle or the driver is otherwise subject to seizure for violating the law. Delaware v. Prouse (1979), 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673, 99 S. Ct. 1391, 1401.

A trial judge’s suppression ruling will not be reversed unless it is against the manifest weight of the evidence. (People v. Brown (1990), 136 Ill. 2d 116, 125, 554 N.E.2d 216, 220; People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899; People v. Gorman (1991), 207 Ill. App. 3d 461, 468, 565 N.E.2d 1349, 1353.) The trial judge’s conclusion in this case that the officers did not have a legitimate basis to stop defendants is not against the manifest weight of the evidence.

A motion to suppress evidence may be properly granted where the action which forms the basis for the stop is susceptible of innocent explanation. In People v. Swisher (1990), 207 Ill. App. 3d 125, 129-30, 565 N.E.2d 281, 283-84, this court concluded the suppression order was consistent with the manifest weight of the evidence where the basis for the stop was that one of the patrolling officers saw the person in the car parked in a parking lot duck down and get back up when the officers’ vehicle passed.

This court reasoned the trial court may look at the circumstances in their entirety and even acts which might be characterized as innocent behavior, if viewed separately, could provide reasonable suspicion when viewing the entire circumstances. In upholding the circuit judge’s conclusion that suppression was proper, the court noted the officers had not relied on added circumstances such as that the defendant’s vehicle was parked in a high-crime area, it was late at night, or any other basis to view the vehicle as suspicious. Swisher, 207 Ill. App. 3d at 129-30, 565 N.E.2d at 283-84.

Similarly, the officers in this case were drawn to defendants’ vehicle only because the backseat passenger was nervously looking back at the officers’ vehicle. This reaction may be brought about simply by the unexpected appearance of an officer’s vehicle. Nor did Huber’s action suggest the driver of defendants’ vehicle was about to engage in unlawful activity. The officers’ reason for stopping defendants’ vehicle was based only on the report from METCAD that there was “no record on file.” Morris testified this response does not represent illegal activity by the vehicle’s owner on all occasions. The trial court concluded the record was barren of anything that explained what the METCAD dispatch meant and how the officers used it in their daily work.

Considering the circumstances surrounding the stop of defendants’ vehicle, we conclude the trial judge’s suppression of the evidence was not against the manifest weight of the evidence. The officers did not articulate why this METCAD message gave them a reasonable basis to conclude illegal activity was occurring, and the officers presented no added factors demonstrating a reasonable basis for concluding illegal activity was being, or was about to be, committed.

The message was no indication the vehicle was stolen, and almost no indication the vehicle was unregistered, as the vehicle did have license plates. We do not suggest a police officer could never articulate a reason to stop a vehicle under the circumstances of this case. We hold only the trial court’s determination the officers failed to do so here was not against the manifest weight of the evidence.

Affirmed.

COOK and GREEN, JJ., concur.


text:
    VIOLET STRAUB, Plaintiff-Appellant, v. THE CITY OF MT. OLIVE et al., Defendants-Appellees (Brian Robeza, Indiv., Defendant).
    Fourth District
    No. 4 — 92—0622
    Opinion filed January 28, 1993.

      Peter C. Drummond, of Staunton, for appellant.
    James C. Cook and John E. Sabo, both of Walker & Williams, P.C., of Belleville, for appellees City of Mt. Olive and William Vogt.
    Robert E. Gillespie and John E. Nolan, both of Hinshaw & Culbertson, of Springfield, for appellees Lutheran Brotherhood and Jim Brinkman.
    Andy Scharf and Ron Scharf, both of Litchfield, for appellees Betty Neilson and Eleanore Miller.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Violet Straub appeals from the Macoupin County circuit court’s dismissal of her fourth-amended complaint which alleged, based on a theory of negligence, the following defendants were liable for injuries she sustained: the City of Mt. Olive (City); William Vogt, Mt. Olive park board president; the Lutheran Brotherhood and its agent Jim Brinkman; and Betty Neilson and Eleanore Miller, members of the Mother Jones Jubilee Committee (Jubilee Committee). Her complaint also included counts based on willful and wanton misconduct against the City, Vogt, Brinkman, the Lutheran Brotherhood, a respondeat superior claim against the City for Vogt’s alleged willful and wanton misconduct, and against the Lutheran Brotherhood for Brinkman’s alleged willful and wanton misconduct.

The trial judge concluded defendants were immune from liability for the negligence claims based on section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 106). He also dismissed the counts based on defendants’ willful and wanton misconduct, concluding plaintiff failed to and would be unable to allege facts to support these claims. Plaintiff argues the trial judge’s dismissal of her claims was error. We affirm the trial judge’s dismissal of claims against each defendant except the count against the City based on willful and wanton misconduct.

I. Facts

A. Plaintiff’s Complaint

Plaintiff alleges she was injured in Mt. Olive Park in June 1990 when she tripped over a wire used to straighten and support a young tree in the park. When the injury occurred, a Mother Jones Jubilee Celebration (Jubilee Celebration) was taking place in the City. The celebration was organized by the City and Betty Neilson and Eleanore Miller, Jubilee Committee members.

Before the celebration, the Lutheran Brotherhood, through its agent, defendant Jim Brinkman, and the City, through William Vogt, the park board president, planted trees in the Mt. Olive City Park and secured them by extending unmarked baling wire from the trees to stakes buried in the ground.

The City was allegedly liable for plaintiff’s injury because it owned and operated the park and invited members of the public generally, including plaintiff, to visit the Jubilee Celebration. The celebration was sponsored by the Jubilee Committee, consisting of defendants Neilson and Miller. The Lutheran Brotherhood, through Brinkman, donated the trees and baling wire and planted the trees with Vogt’s assistance. Defendant Brian Robeza, who is not part of this appeal, was allegedly an independent contractor hired by the City to cut and maintain the grass at the park. Robeza allegedly cut the park grass in a manner that concealed the guide wires and stakes from members of the general public.

1. Negligence Allegations

Plaintiff’s basis for her negligence claims included the following factors: (1) defendants installed guide wires which were not visible to the general public exercising ordinary care; (2) although the wires were below eye level, defendants failed to mark them to make them reasonably safe; (3) defendants failed to warn visiting senior citizens, whom they knew would be frequenting the area, by marking the guide wires or erecting a barricade; and (4) because defendants used rusted wire or wire which was prone to rust, the wire was less visible to a person using ordinary care and defendants failed to provide a reasonably safe environment free from hazards pursuant to section 3 — 102 of the Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 102). Plaintiff’s counts included the allegation defendants affirmatively created a condition that they knew about before her injury occurred and which was not reasonably safe. She also alleged defendants actively promoted the public’s attendance to the park activities, exposing numerous people to the hazard.

2. Willful and Wanton Misconduct Allegations

Plaintiff alleged willful and wanton misconduct on the part of the City occurred because: (1) the City showed a conscious disregard or utter indifference for the safety of others and it knew a danger existed in the Mt. Olive City Park before the general public was invited to the festivities and the City failed to abate the danger; (2) individuals had brought a dangerous situation to the defendant’s attention and the City did not abate it; (3) other individuals had tripped or fallen on the wires and although defendants knew of such occurrences, defendants did nothing to remedy the problem; (4) defendants knew the wires were difficult to see, rusted, and posed a particular hazard to elderly individuals, but did nothing to remedy the.hazard; (5) defendants planted and failed to properly secure or mark the trees despite their knowledge the wires posed a danger to the public; (6) defendants failed to properly plant, supervise or mark the trees despite knowing the trees presented a danger to the public; and (7) defendants knew or should have known the trees presented a danger to the public.

Plaintiff’s second count against the City for alleged willful and wanton misconduct was based on Brinkman’s actions under a theory of respondeat superior. Her counts based on willful and wanton misconduct against Brinkman and against Vogt included the following allegations: (1) defendants chose wire which they knew posed a danger to the public; (2) defendants attached the wire to the trees in a way which posed a danger to the public; (3) defendants knew the Jubilee Celebration would attract the public, including elderly people; (4) defendants knowingly and intentionally selected wire which could rust, making it less visible to normal people; (5) defendants buried the stakes attached to the wires so the stakes were not visible, knowing this would pose a hazard to the public; (6) knowing the lawn mowing would be subcontracted and that debris would likely be placed around the bases of the trees, defendants willfully and wantonly failed to supervise the mowing and trimming of the trees so their location would not be obscured; (7) knowing the park would be used for the Jubilee Celebration, defendants committed willful and wanton misconduct and showed an utter disregard and total indifference to the safety of others by failing to mark the wires although they knew the wires were below eye level; (8) defendants chose baling wire which was rusted when it was attached to the trees which was hard to see and posed a danger to pedestrians; and (9) defendants did not return to mark the trees, although they knew there was a danger of tripping.

Plaintiff’s claim of willful and wanton misconduct against the Lutheran Brotherhood was based on Brinkman’s actions under a theory of respondeat superior.

B. The Dismissal

The trial judge relied on statutory immunity from negligence claims provided to defendant, the City, pursuant to section 3 — 106 of the Act, and provided to the additional defendants derivatively. He also concluded plaintiff failed to, and would be unable to, allege facts which as a matter of law would support the counts against defendants based on willful and wanton misconduct. Defendants’ motions to dismiss pursuant to section 2 — 615 of the Civil Practice Law were granted. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.

II. Analysis

Section 3 — 106 of the Act states:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.” Ill. Rev. Stat. 1989, ch. 85, par. 3 — 106.

Section 1 — 207 of the Act defines “public employee” as “an employee of a local public entity.” (Ill. Rev. Stat. 1989, ch. 85, par. 1— 207.) “Local public entity” is defined by section 1 — 206 of the Act to include a municipality, municipal corporation, park district, and all other local governmental bodies. (Ill. Rev. Stat. 1989, ch. 85, par. 1— 206.) Section 1 — 202 of the Act further defines “employee” as “a present or former officer, member of a board, commission or committee, agent, volunteer, servant or employee, whether or not compensated, but does not include an independent contractor.” Ill. Rev. Stat. 1989, ch. 85, par. 1 — 202.

Vogt, as a member of the City’s park board, qualifies as an employee protected by the Act. Brinkman, who was acting as a volunteer for the City when he planted the trees, also is protected by the Act because he was acting as a volunteer on behalf of the City. Neilson and Miller qualify for immunity from a negligence cause of action because they too were acting as volunteers on behalf of the City. Plaintiff does not contest the court’s rulings related to the codefendants’ relationships to the City. The issues involve whether their actions, as representatives of the City, are immune from liability pursuant to section 3 — 106 of the Act.

A section 2 — 615 motion attacks the legal sufficiency on the face of plaintiff’s complaint. (Urbaitis v. Commonwealth Edison (1991), 143 Ill. 2d 458, 475, 575 N.E.2d 548, 555.) When ruling on such a motion, the court must accept as true all well-pleaded facts and all reasonable inferences which can be drawn from the complaint. (See McGrath v. Fahey (1988), 126 Ill. 2d 78, 90, 533 N.E.2d 806, 811.) A motion to dismiss for failure to state a cause of action raises whether sufficient facts are contained in the pleadings which, if established, could entitle the plaintiff to relief. (Urbaitis, 143 Ill. 2d at 475, 575 N.E.2d at 555.) In evaluating this question the court must interpret the allegations in the complaint in the light most favorable to the plaintiff. McGrath, 126 Ill. 2d at 90, 533 N.E.2d at 811.

A. Negligence-Based Claims

Plaintiff argues the wire support which caused her injury was not merely an existence of a condition within the city park, thereby immunizing defendants from prosecution pursuant to section 3 — 106 of the Act. Rather, she contends because the City’s liability was brought about not by a passive condition in the park, but by an affirmative act by its agent and the other defendants, section 3 — 103 of the Act controls and defendants are not immune from prosecution because they created a condition which was not reasonably safe. Ill. Rev. Stat. 1989, ch. 85, par. 3 — 103.

Plaintiff also argues section 3 — 106 of the Act does not control because when her injury occurred the park was being used for a joint commercial enterprise between the City and the Jubilee Committee and not for “recreational purposes.” Ill. Rev. Stat. 1989, ch. 85, par. 3-106.

1. Relevant Statutory Provision

Section 3 — 106 of the Act is not intended to immunize defendants from liability only when their negligence arises from their failure to act. The purpose of this provision is to encourage development and maintenance of parks, playgrounds and similar areas. (Beckus v. Chicago Board of Education (1979), 78 Ill. App. 3d 558, 560, 397 N.E.2d 175, 177; see Maloney v. Elmhurst Park District (1970), 47 Ill. 2d 367, 370, 265 N.E.2d 654, 655-56.) Plaintiff’s argument section 3 — 106 applies only to inaction by officials which causes decay leading to dangerous conditions is inconsistent with this purpose. Development and maintenance of parks do not occur through inaction.

When interpreting a statute, a court will provide words their plain and commonly accepted meanings unless doing so defeats the legislature’s intent. (Illinois Telephone Association v. Illinois Commerce Comm’n (1977), 67 Ill. 2d 15, 20, 364 N.E.2d 63, 64; Bonfield v. Jordan (1990), 202 Ill. App. 3d 638, 644, 560 N.E.2d 412, 416.) Section 3 — 106 provides public employees are liable for injuries based on the existence of a condition in a park if the employee is guilty of willful and wanton conduct which proximately causes the injury.

Plaintiff relies on the following definition of “condition” to establish the term does not include the defendants’ affirmative acts of supporting the trees with rusted wire and of not warning the public the wires were present: “Mode or state of existence, (a bicycle in good condition, butter in a liquid condition); *** state of training.” This definition does not evidence a meaning contrary to active conduct.

“Conduct” is defined by Black’s Law Dictionary as:

“Personal behavior; deportment; mode of action; any positive or negative act.
An action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions.” (Black’s Law Dictionary 268 (5th ed. 1979).)

When an injury results from a condition in a park or other property intended or permitted to be used for recreational purposes, local public entities and their employees are immune from liability based on a theory of negligence.

The first and second districts have applied section 3 — 106 of the Act in cases where affirmative acts were involved. In Kirnbauer v. Cook County Forest Preserve District (1991), 215 Ill. App. 3d 1013, 1022-23, 576 N.E.2d 168, 175, the first district concluded summary judgment in defendant’s favor was proper. In affirming, the court rejected an argument that the site was not intended for recreational purposes within the meaning of section 3 — 106. There the plaintiff was allegedly injured by a suspended steel cable erected by the forest preserve.

In Ramos v. Waukegan Community Unit School District No. 60 (1989), 188 Ill. App. 3d 1031, 1032, 1036, 544 N.E.2d 1302, 1302, 1305, the second district concluded defendant was immune from liability pursuant to section 3 — 106. Plaintiff had alleged, in part, that the minor child was injured when she tripped on a sidewalk constructed by defendant which was cracked, uneven and in an unreasonably dangerous condition.

We reject plaintiff’s contention section 3 — 106 of the Act did not control because defendants’ negligence occurred by their action rather than inaction. Nor, as plaintiff contends, does section 3 — 103 of the Act control. This section provides:

“A local public entity is not liable under this Article for an injury caused by the adoption of a plan or design of a construction of, or an improvement to public property where the plan or design has been approved in advance of the construction or improvement by the legislative body of such entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved. The local public entity is liable, however, if after the execution of such plan or design it appears from its use that it has created a condition that it is not reasonably safe.” Ill. Rev. Stat. 1989, ch. 85, par. 3 — 103(a).

When construing a statute each section should be considered in relation to all other provisions of the statute to ascertain the legislature’s intent. In re Petition to Annex Certain Territory (1991), 144 Ill. 2d 353, 362, 579 N.E.2d 880, 884; Chastek v. Anderson (1981), 83 Ill. 2d 502, 511, 416 N.E.2d 247, 251; Totten v. State Board of Elections (1980), 79 Ill. 2d 288, 292, 403 N.E.2d 225, 227.

Section 3 — 102 of the Act delineates governmental duties regarding property maintenance, et cetera, “[ejxcept as otherwise provided in this Article.” (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 102(a).) Section 3 — 103 does not control in this instance. (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 103.) Section 3 — 106 delineates when a remedy is available when a person is injured in a public park or other area used for recreational purposes.

2. Characterization of Event

Plaintiff argues as an additional reason section 3 — 106 does not control to immunize defendants that during the Jubilee Celebration the park was not merely being used for recreational purposes, but was a joint commercial venture between the City and the Jubilee Committee. She relies on John v. City of Macomb (1992), 232 Ill. App. 3d 877, 880, 596 N.E.2d 1254, 1256, wherein the plaintiff was injured on a courthouse lawn during a festival. The third district reversed the circuit court’s entry of summary judgment in favor of the city because it concluded the evidence was insufficient to establish plaintiff fell in an area “intended or permitted to be used for recreational purposes” so as to grant the city immunity pursuant to section 3 — 106. Ill. Rev. Stat. 1989, ch. 85, par. 3 — 106.

John is distinct from plaintiff’s case. Plaintiff’s injuries occurred in a public park, which is “[a]n inclosed pleasure-ground *** set apart for the recreation of the public.” (Black’s Law Dictionary 1005 (5th ed. 1979).) Moreover, section 3 — 106 of the Act lists parks as a recreational area. The Jubilee Celebration was organized to honor Mother Jones. Plaintiff does not provide additional facts related to how the City and the Jubilee Committee intended to profit from the event. However, the mere fact the Jubilee Celebration, organized as a recreational event, would also generate revenue does not remove the matter of liability for plaintiff’s injury from the ambit of section 3-106.

Section 3 — 106 of the Act limits the circumstances under which an entity and its volunteers and agents may be deemed liable for injuries incurred in a public park. The trial judge properly dismissed plaintiff’s claims against defendants based on a theory of negligence. For defendants to have been liable plaintiff had to show their actions constituted willful and wanton misconduct.

B. Willful and Wanton Conduct

Section 3 — 106 of the Act applies to situations where a municipality fails to maintain property under its control intended for recreational use by allowing an unsafe condition to exist. Unlike section 3— 102 of the Act, however, it contemplates liability only if the governmental unit or employee acts in a willful and wanton manner. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 507, 565 N.E.2d 654, 658.) Willful and wanton conduct is “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” Ill. Rev. Stat. 1989, eh. 85, par. 1 — 210.

The plaintiff must show that after knowledge of impending danger, defendant failed to exercise ordinary care to prevent it or failed to discover the danger through recklessness or carelessness when it should have been discovered. Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 429, 412 N.E.2d 447, 457.

Although plaintiff’s brief combines her arguments on the sufficiency of her allegations against all defendants, we discuss her count against the City separate from the discussion of her pleadings against Vogt, Lutheran Brotherhood, and Brinkman because the allegations vary.

1. Claims against the City

The City claims plaintiff’s pleadings did not sufficiently state facts to allow her complaint to proceed. Plaintiff directs us to the second district ruling in Benhart v. Rockford Park District (1991), 218 Ill. App. 3d 554, 559-60, 578 N.E.2d 600, 604, that the trial judge erred by granting summary judgment in favor of defendant where plaintiff alleged willful and wanton misconduct by defendant for removing nonslip strips previously present in the pool. She contends the trial judge erred by dismissing the willful and wanton misconduct counts against defendants because her pleadings were far more specific than those provided in Benhart.

Plaintiff alleged defendants knew or should have known stringing the wire to invisible stakes below eye level would present a hazard. She also contends she alleged defendants knew or should have known a large number of the people who would visit the park would be elderly people and that defendants had been told of the dangerous nature of the wire by individuals before she was injured and that other individuals had been injured or brought the matter to the defendants’ attention.

Plaintiff mischaracterizes her pleadings. Only her count against the City for willful and wanton misconduct alleges other individuals had informed the City of the dangerous condition and informed the City other individuals had tripped over the wire. Similar allegations are not contained in her count against the City based on respondeat superior over Vogt, her count against the Lutheran Brotherhood based on respondeat superior over Brinkman or her individual counts against Brinkman and Vogt.

The City argues plaintiff’s willful and wanton claim against it alleges only it should have known the use of baling wire attached to stakes driven in the ground to support young growing trees presented a hazard which plaintiff could not apprehend as she walked through the park. It contends these allegations do not sufficiently set out the facts to support a willful and wanton misconduct claim.

The City also directs us to our observation in Harvey v. Norfolk & Western Ry. Co. (1979), 73 Ill. App. 3d 74, 82, 390 N.E.2d 1384, 1389, that plaintiff must include facts to support a conclusion defendant knew of other injuries or accidents or had prior knowledge of impending danger. It argues plaintiff’s count against it failed to establish this essential fact. This contention ignores the allegations in plaintiff’s complaint that (1) individuals had brought the dangerous condition to the attention of the City and the City did not abate it; and (2) other individuals had tripped or fallen on the wires and although the City knew about these occurrences it did nothing to remedy the problem.

The City correctly notes this court has stated “conclusions unsupported by statements of the specific facts on which they rest are irrelevant.” (Dunn v. Baltimore & Ohio R.R. Co. (1987), 162 Ill. App. 3d 97, 108, 515 N.E.2d 1027, 1035.) This court also indicated for a count to withstand a motion to dismiss it need include only one sufficient allegation supporting a cause of action. Other allegations which do not support the cause of action are mere surplusage but do not in themselves provide a reason to dismiss the pleading. Dunn, 162 Ill. App. 3d at 108-09, 515 N.E.2d at 1035.

Several of the cases relied on by the City support our conclusion that plaintiff’s allegations that (1) the City knew of the danger associated with the support wire and (2) it knew other individuals had tripped or fallen over the wire sufficiently set forth a claim based on willful and wanton misconduct. Although the City relies on them to argue conclusory statements are insufficient to permit a pleading to proceed, the City’s knowledge of the danger and that individuals previously came in contact with the wire are not mere conclusions. A discussion of some of the cases cited by the City will illustrate the sufficiency of these allegations to proceed with plaintiff’s willful and wanton misconduct claim against the City.

In Washington v. Chicago Board of Education (1990), 204 Ill. App. 3d 1091, 1094, 562 N.E.2d 541, 543, the first district affirmed dismissal of the claim of plaintiff, a minor, based on willful and wanton misconduct which allegedly caused injuries she sustained when she slipped on an icy school stairway. Plaintiff’s allegations the school’s acts were done willfully and wantonly, the stairs were unreasonably dangerous, and the school board knew or should have known about the dangerous condition were conclusions. Plaintiff provided no facts to support these allegations.

Similarly, as noted by the City, in Brown v. Chicago Park District (1991), 220 Ill. App. 3d 940, 941-42, 581 N.E.2d 355, 357, the first district affirmed dismissal of the plaintiff’s complaint where plaintiff, a minor, alleged his foot was injured when a mirror fell from the wall of the park district’s public shower. An unknown third party had placed the mirror, not owned or displayed by the park district, behind a pipe in the shower stall. Plaintiff alleged defendant had notice of the hazardous condition because park district employees knew about and even used the mirrors without securing or removing them. Plaintiff in Brown did not plead defendant had notice of the hazardous condition, only that its employees had notice. In addition, plaintiff did not allege defendant knew of previous injuries sustained from the mirrors. Brown, 220 Ill. App. 3d at 944-45, 581 N.E.2d at 359.

In Winston v. Board of Education (1989), 182 Ill. App. 3d 135, 537 N.E.2d 964, the first district affirmed a directed verdict in favor of defendant where plaintiff, a minor student, failed to prove the board of education was liable for his injuries sustained while crossing a street near school, because he did not establish willful and wanton misconduct by the school board. It is of note to our ruling that the trial judge initially permitted the action to proceed to trial because plaintiff alleged other children had been struck by vehicles at the same intersection, suggesting the board knew or should have known of the danger. However, evidence on this point was not produced at trial. Winston, 182 Ill. App. 3d at 139, 537 N.E.2d at 967; see also Majewski v. Chicago Park District (1988), 177 Ill. App. 3d 337, 341, 532 N.E.2d 409, 411 (plaintiff’s count based on willful and wanton misconduct by park district fails where allegations amount only to omissions by defendant, i.e., failure to post signs to warn of possibility of broken glass and to inspect and remove debris from field; conclusory statements insufficient; plaintiff did not plead facts stating why defendant knew or should have known about the broken glass).

A second district ruling also evaluated the pleadings in the manner which this ruling requires. In Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 190-91, 520 N.E.2d 62, 66-67, the court reversed the trial judge’s dismissal of plaintiff’s claim based on willful and wanton conduct because plaintiff’s pleadings properly alleged the dangerous condition of the slide which caused plaintiff’s injuries, and also alleged defendants acted in reckless disregard for plaintiff’s safety because they knew about prior accidents and that those accidents resulted from the defective condition of the slide.

Finally, plaintiff’s argument that she sufficiently pleaded a willful and wanton misconduct claim against the City is supported by a recent Illinois Supreme Court ruling cited by the City (for a different proposition). In Burdinie (139 Ill. 2d at 513, 565 N.E.2d at 661), the court concluded plaintiff failed to state a cause of action based on willful and wanton misconduct by defendant where plaintiff’s complaint contained no facts indicating the dangers associated with jumping feet first into the shallow end of a swimming pool nor did plaintiff allege the swimming instructor knew about or disregarded any danger. See also Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 329-30, 383 N.E.2d 177, 181-82 (two year old’s injury not compensable because although plaintiff alleged work performed on a ditch created its allegedly hazardous condition, no allegations were made that after the work was complete, defendants had notice or knowledge of any hazards).

Plaintiff’s complaint in this case explained the danger involved in the support wire was that it was not evident to people walking through the park, it was rusted, and it was not marked to notify people of its presence to prevent them from tripping or falling over it. Plaintiff’s complaint against this defendant also alleged the City knew about these dangers because other individuals had informed it and the City knew other people had tripped or fallen over the wire, informing it of the danger before plaintiff sustained her injury. These allegations sufficiently set forth a cause of action against the City based on a willful and wanton misconduct theory. Plaintiff should have been permitted to proceed on this claim.

2. Additional Claims

Although the question of willful or wanton conduct is generally a question of fact for the jury to decide, if the evidence, when viewed in the light most favorable to the plaintiff, does not tend to show an act done without regard to the safety of others the question should not be submitted to the jury. (Harvey, 73 Ill. App. 3d at 82, 390 N.E.2d at 1389.) Plaintiff’s claims against Vogt and Brinkman and against the City and the Lutheran Brotherhood based on a respondeat superior theory do not sufficiently establish a claim of willful or wanton misconduct by Brinkman. The allegations are based on Vogt’s and Brinkman’s alleged failure to warn of the existence of the support wires and the claim they should not have used rust-prone baling wire to support the trees. Plaintiff’s pleadings failed to include facts showing intentional conduct to injure, or reckless disregard for the safety of others, by Vogt or Brinkman. The individual claims against them and the claims against the City and the Lutheran Brotherhood based on the theory of respondeat superior were properly dismissed.

III. Conclusion

We affirm the trial judge’s dismissal of plaintiff’s negligence counts against the City, Neilson, Miller, the Lutheran Brotherhood, Vogt, Brinkman, and against the City based on the theory of respondeat superior for Vogt’s actions and against the Lutheran Brotherhood for Brinkman’s actions. We also affirm his dismissal of the willful and wanton misconduct counts against Vogt and Brinkman and against the City based on respondeat superior for Vogt’s actions and against the Lutheran Brotherhood for Brinkman’s actions. We reverse the dismissal of the willful and wanton misconduct count against the City. Plaintiff’s pleading of this count was sufficiently specific to allow her to proceed.

Affirmed in part; reversed in part and cause remanded.

LUND and GREEN, JJ., concur.