text:
    MARCELLO AGUILAR et al., Plaintiffs-Appellants and Cross-Appellees, v. SAFEWAY INSURANCE COMPANY, Defendant-Appellee and Cross-Appellant.
    First District (5th Division)
    No. 1 — 90—1540
    Opinion filed November 15, 1991.

      David A. Novoselsky & Associates, of Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellants.
    Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Alvin R. Becker and Timothy M. Kelly, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

On September 3, 1985, plaintiffs Marcello Aguilar (Aguilar), Ma-her Nubani (Nubani) and Maria DeLourdes Guzman (Guzman), individually and in a representative capacity, filed a class action complaint against defendant Safeway Insurance Company (Safeway). Plaintiffs, as insureds under their automobile policies, brought actions against their insurer, Safeway, to recover court costs, jury fees, and sheriff’s costs incurred in suits brought against uninsured motorists. Plaintiffs maintained that their policies required them to file such suits. The circuit court dismissed the complaint, and the insureds appealed. In a majority opinion this court found ambiguities in Safeway’s policy which compelled it to construe the policies against Safeway. The majority found that plaintiffs had stated a cause of action and their complaint was erroneously dismissed. This court reversed the trial court with directions that the complaint be reinstated. Aguilar v. Safeway Insurance Co. (1987), 157 Ill. App. 3d 877, 882, 510 N.E.2d 1135, 1137.

A minority opinion disagreed with the majority’s opinion and determined that the majority should have vacated the trial court’s finding that the complaint stated a cause of action and should have remanded the cause for further proceedings consistent with the content of the dissent. (Aguilar, 157 Ill. App. 3d at 883, 510 N.E.2d at 1138 (Sullivan, P.J., dissenting).) After petition for rehearing was denied, Safeway petitioned for leave to appeal to the Illinois Supreme Court. That petition was denied. Aguilar v. Safeway Insurance Co. (1987), 157 Ill. App. 3d 877, 510 N.E.2d 1135, appeal denied (1987), 117 Ill. 2d 541, 517 N.E.2d 1083.

On remand the matter was refiled and assigned to a trial judge different than the trial judge who heard the original case. On January 25, 1988, plaintiffs filed a motion to maintain a class action. Plaintiffs sought certification of a class, consisting of “all persons, corporations or entities who filed civil suits against uninsured motorists and paid court filing fees, jury fees and sheriff’s costs to file those suits while presenting or prosecuting uninsured motorist claims against Safeway Insurance Company, during the period from June 17, 1977 to the present date.” Following a hearing on December 1, 1988, the trial court denied the plaintiffs’ motion to maintain a class action without prejudice.

On July 13, 1988, defendant filed its answer to the complaint, affirmative defenses and counterclaim. Defendant raised four affirmative defenses: that plaintiffs purchased their insurance policies before the effective date of the applicable statute and thus were not entitled to reimbursement; that plaintiffs’ actions should be stayed pending arbitration of all questions of uninsured motorists coverage; that plaintiffs Aguilar and Guzman executed releases discharging all claims against Safeway; and that plaintiffs’ claims should be barred for lack of reliance on the Safeway policy and by laches.

Plaintiffs filed a motion to strike defendant’s affirmative defenses, arguing that the matters set forth in defendant’s affirmative defenses could have been raised in the former appeal but were not. On August 21, 1989, the trial court denied plaintiffs’ motion to strike the first and third affirmative defenses. The motion to strike the second affirmative defense was granted to the extent that the ultimate determination at arbitration was irrelevant. On September 22, 1989, the trial court granted plaintiffs’ motion to strike defendant’s fourth affirmative defense.

On December 1, 1988, the trial court heard oral arguments on plaintiffs’ motion to certify the class. The trial court denied the motion without prejudice. On January 12, 1990, a stipulation in lieu of evidence was filed. The parties agreed that each of the plaintiffs had commenced legal action against the uninsured motorist and incurred court costs of $140.72 by Aguilar, $58.92 by Nubani, and $63.56 by Guzman.

On February 28, 1990, judgment was entered in favor of plaintiff Nubani and against Safeway in the amount of $58.92. Judgment was entered in favor of Safeway and against Aguilar and Guzman. Defendant voluntarily dismissed its counterclaim, and plaintiffs made an oral motion for reconsideration of the denial of class certification.

On March 30, 1990, plaintiffs filed a motion to vacate the trial court’s order of December 1, 1988, denying plaintiffs’ motion for class certification without prejudice. Plaintiffs also filed their post-trial motion, requesting that the trial court vacate the portion of its order of February 28, 1990, granting judgment in favor of defendant and against certain plaintiffs.

On April 26, 1990, the trial court denied the motion for class certification. Both plaintiffs’ motion to vacate the December 1, 1988, order and plaintiffs’ post-trial motion were denied.

Plaintiffs appealed and Safeway filed a cross-appeal. Aguilar, Nu-bani, and Guzman, as individual plaintiffs and as representatives of the proposed class, request this court to reverse the judgment of the trial court in its orders entering judgment in favor of Safeway as to certain of the plaintiffs and in failing to certify the class.

Safeway’s appeal is predicated solely on the eventuality of the court granting plaintiffs relief in their appeal and, since the law compels this court to affirm the trial judge, we do not consider Safeway’s appeal.

Plaintiffs make two points in their appeal. First, they charge the trial court with ignoring the mandate of this court by permitting Safeway to raise affirmative defenses asserting that they are contrary to this court’s prior ruling in the case. Second, plaintiffs argue that the trial court erred in dismissing its request for class certification.

It is true that in its earlier opinion this court determined that the Safeway insurance policy was ambiguous as a matter of law. As a result of those ambiguities, this court stated: “[W]e are compelled to construe the policy as against the defendant-drafter of the policy.” (Aguilar v. Safeway Insurance Co. (1987), 157 Ill. App. 3d 877, 881, 510 N.E.2d 1135, 1137.) The original appeal was an appeal from a section 2 — 615 motion to dismiss. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) The majority found that the complaint was erroneously dismissed and that the complaint stated a cause of action. The majority reversed and remanded the cause to the circuit court “with directions that the complaint be reinstated.”

In PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291, 308-09, 427 N.E.2d 563, 571, the Illinois Supreme Court stated:

“The correctness of the trial court’s action on remand is to be determined from the appellate court’s mandate, as opposed to the appellate court opinion. [Citations.] However, if the direction is to proceed in conformity with the opinion, then, of course, the content of the opinion is significant. [Citations.] In construing the language, matters which are implied may be considered embraced by the mandate. [Citation.] The trial court has no authority to act beyond the dictates of the mandate. *** Thus, the controlling question in the appeal from the remand in this case is whether the trial court complied with the mandate.”

Where a reviewing court remands a cause with specific instructions, they must be followed exactly. If specific instructions are not given, the trial court is required to examine the court’s opinion and determine therefrom what further proceedings would be proper and consistent with the opinion. (John Burns Construction Co. v. Interlake, Inc. (1984), 125 Ill. App. 3d 26, 465 N.E.2d 639.) Finally, the correctness of a trial court’s action on remand is to be determined from the appellate court’s mandate, as opposed to the appellate court’s opinion, unless the mandate directs the trial court to proceed in conformity with the opinion. In re Application of Kane County Collector (1985), 135 Ill. App. 3d 796, 482 N.E.2d 161.

Had the majority followed the language of the dissent to “remand for further proceedings consistent with the content of the dissent,” plaintiffs’ argument would have merit. However, this court gave specific and exact instructions. The mandate of this court states: “The order appealed from of the Circuit Court of Cook County is REVERSED and this case is remanded with directions that the complaint be reinstated.” The opinion in this case states: “For the reasons stated above, we reverse and remand to the circuit court of Cook County with directions that the complaint be reinstated.” (157 Ill. App. 3d at 882.) No other directions were given. Neither the mandate nor the opinion directed the trial court to act in conformity with the views expressed in the opinion. The opinion merely directed the trial court to reinstate the complaint. Moreover, this court did not direct the trial court to find in favor of either the plaintiff or the defendant in this case, nor did this court direct that further proceedings should be limited to proof of damages.

In Gage v. People ex rel. Hanberg (1905), 219 Ill. 369, 371, 76 N.E. 498, the Illinois Supreme Court rejected the argument that judgment should have been entered upon remand with directions to reinstate, commenting:

“[T]he orders re-instating the cases do not purport to be judgments in favor of either party. They were not adjudications of issues. There was no recovery of any sort and no relief was granted.”

Once plaintiff’s allegation has withstood a motion to dismiss, the preferable alternative is to remand thereby permitting the defendant to put the matter in issue as a question of fact by filing an answer. Bebee v. Fields (1979), 79 Ill. App. 3d 1009, 1015, 398 N.E.2d 1214, 1219; Licha v. William A. Sales, Ltd. (1979), 70 Ill. App. 3d 929, 936, 388 N.E.2d 1261.

In Mid-Town Petroleum, Inc. v. Dine (1983), 114 Ill. App. 3d 112, 448 N.E.2d 596, the appellate court rejected an argument analogous to the one advanced by plaintiffs here. In Dine, the trial court dismissed plaintiff’s complaint; however, the appellate court reversed and remanded the cause for further proceedings. On remand the trial court permitted new parties to intervene, denied specific performance and plaintiff was given leave to file an amended complaint for damages. Subsequently, plaintiff argued that the appellate court’s ruling, binding on the trial court as the law of the case, was that if plaintiff could prove the facts set forth in the complaint, then it would be entitled to the relief of specific performance. The Dine court approved the proceedings on remand, commenting that plaintiff “misconstrue[d] the holding in the first case which was limited only to the question of the sufficiency of the complaint and whether the cause of action was barred by the Statute of Frauds.” Dine, 114 Ill. App. 3d at 119, 448 N.E.2d at 601.

Plaintiffs argue that “this Court reversed the finding of the trial court and remanded this matter to the trial court for a determination of the only remaining issue to be resolved — the damage to be assessed against defendant for each plaintiff. The principal issue in the case— whether defendant was ‘obliged’ to reimburse plaintiffs for court costs associated with those cases — was clear and unequivocally resolved in favor of all named plaintiffs and against defendant.” Plaintiffs further state:

“This Court’s findings that the policy was ambiguous, that the policy required the insured to initiate suit against the at-fault driver, and that as a result of this requirement, defendant was obligated to reimburse plaintiffs for the court cost incurred in those cases became the law of this case. The trial court was bound to follow the directions of the mandate of this Court which set forth these rules of law.”

Plaintiffs maintain that in its earlier opinion this court entered judgment in favor of the plaintiffs. We disagree.

This was a motion to dismiss under section 2 — 615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) Such a motion addresses defects on the face of the pleading, admitting all well-pleaded facts and attacking facially only the complaint’s legal sufficiency. (Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 489 N.E.2d 311.) In reviewing an order of dismissal, a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action on which relief may be granted. [Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 407 N.E.2d 156.) A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts could be proved which would entitle the plaintiff to recover. Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 433 N.E.2d 253; Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 495 N.E.2d 1132.

“Although questions of law actually decided in a previous appeal are binding, matters concerning the merits of a controversy which were not decided by the appellate court do not become the law of the case.” (Huber v. Seaton (1989), 186 Ill. App. 3d 503, 505, 542 N.E.2d 464, citing Zokoych v. Spalding (1980), 84 Ill. App. 3d 661, 667, 405 N.E.2d 1220.) In the present case, defendant challenged the legal sufficiency of the complaint and won. Plaintiffs took an appeal on this limited issue, and this court established the legal sufficiency of the complaint, remanding to the trial court for further proceedings. The appellate court did not purport to enter judgment, and beyond directing the reinstatement of plaintiffs’ complaint, the court did not limit further proceedings in any way. The filing of an answer and affirmative defenses is fully consistent with the mandate of this court to reinstate the complaint and proceed with the litigation. For the above reasons, we reject the plaintiffs’ arguments that the trial court erred in not striking all of the affirmative defenses raised by Safeway and affirm that portion of the trial court’s order.

Following the issuance of the mandate remanding this matter to the trial court, plaintiffs filed a motion for class certification. Defendant opposed plaintiffs’ motion for class certification, contending that the description of the proposed class was defective, that plaintiffs failed to establish numerosity, that individual questions predominated over common questions, and that plaintiffs were inadequate representatives of the proposed class. Plaintiffs argue that in light of this court’s earlier determination of the liability issue in this case, it was error for the trial court to consider the affirmative defenses raised by defendant after this matter was remanded to the trial court for a determination of damages only. Plaintiffs maintain that this court determined defendant’s liability to plaintiffs under the insurance policy. Plaintiffs continue to maintain that this court awarded them damages in its earlier opinion. As stated above, this court directed the trial court to reinstate the complaint. This court did not enter a judgment of any sort, and the trial court properly allowed the defendant to file an answer and affirmative defenses.

Plaintiffs sought a class certification of “all persons, corporation, or entitles who filed civil suits against uninsured motorists and paid court filing fees, jury fees and sheriff costs to file suits in the circuit courts of the State of Illinois while presenting uninsured motorist claims against Safeway Insurance Company during the period from June 17,1977 to the present date.”

The plaintiffs are correct; a class action is an appropriate way of disposing of a number of relatively small claims. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 428 N.E.2d 478.) Yet a trial court’s decision whether or not to certify a purported class is a matter within the sound discretion of the trial court, and the trial court’s action will only be reversed upon a showing of a clear abuse of discretion or application of impermissible legal criteria. (Schlenz v. Castle (1981), 84 Ill. 2d 196, 203, 417 N.E.2d 1336, 1339.) We cannot say that the trial court abused its discretion or applied impermissible legal criteria in this case.

The named plaintiffs in a class action have the burden of establishing the statutory prerequisites present before the court can sanction the maintenance of the suit as a class action. (Wheatley v. Board of Education of Township High School District 205 (1984), 99 Ill. 2d 481, 486, 459 N.E.2d 1364, 1367.) Section 2 — 801 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 801) provides that an action may be maintained as a class action only if the court finds that the following requisites have been met:

“(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.”

The proponent of a class action has the burden of establishing the above prerequisites, and the determination of whether those prerequisites have been met rests within the discretion of the trial court, whose determination will not be disturbed absent a clear abuse of that discretion. (Kulins v. Maleo, A Microdot Co. (1984), 121 Ill. App. 3d 520, 459 N.E.2d 1038.) We cannot say that the trial court abused its discretion in finding that the plaintiffs did not sustain their burden of proof.

Plaintiffs suggest that a large number of defendant’s insureds submitted uninsured motorist claims; however, plaintiffs offered no evidence in the trial court and they offer no argument in this court to indicate how many of these claimants filed lawsuits against at-fault drivers. In plaintiffs’ brief and memorandum of law in support of plaintiffs’ motion for class certification, plaintiffs alleged the following facts in support of their assertion that the numerosity requirement had been met: “there are hundreds, if not thousands of claimants who have sued uninsured motorists to entitle them to proceed with arbitration against their insurer, Safeway”; the “defendant’s attorneys, Parrillo, Weiss and Moss have identified more that [sic] 1102 existing, open uninsured motorist claim files presently pending in their offices”; the American Arbitration Association “has identified 235 uninsured motorist claim files in their possession since June, 1977”; and that “plaintiffs are informed and believe that there are an unknown number of closed and settled uninsured motorist claim files being stored in warehouses by Safeway or their attorneys, for which their insureds paid filing fees which were not reimbursed by Safeway.” In response defendant argued that plaintiffs offered no evidence to indicate how many of these claimants filed lawsuits against the uninsured motorists at fault. The failure to adduce any evidence to support their claim of numerosity is fatal to plaintiffs’ motion for class certification. David B. v. DeVito (1980), 86 Ill. App. 3d 787, 408 N.E.2d 275.

Plaintiffs argued that Safeway’s insurance policy created a common question in this case. In turn defendant argued that individual issues predominated in order to establish membership in the proposed class, each prospective claimant would be required to show (1) that Safeway issued an insurance policy after September 24, 1981, (2) that uninsured motorists coverage was in effect, (3) that there was covered loss, (4) that a claim was submitted to Safeway for payment of the loss, (5) that the at-fault driver was in fact uninsured, (6) that a lawsuit was filed against the uninsured motorist, and (7) that the lawsuit was filed in reliance upon Safeway’s insurance policy. As stated previously, the proponent of a class action has the burden of establishing the statutory prerequisites, and the determination of whether those prerequisites have been met rests within the discretion of the trial court. (Kulins v. Malco, A Microdot Co. (1984), 121 Ill. App. 3d 520, 459 N.E.2d 1038.) We do not find that the trial court abused its discretion in denying class certification.

At oral argument in the trial court, plaintiffs’ counsel stated: “The only issue I could see left on remand would be the issue of the amount of damages and the possibility of class certification.” Plaintiffs’ counsel continued to maintain that this court had entered a judgment in plaintiffs’ favor.

The trial court stated:

“Well, I think you have to take the case as it went to the Appellate Court. If it went there on a motion on the pleadings, a motion to dismiss the pleadings under Section 2 — 615, then they held that the pleadings did state a cause of action to give the opinion. The reading that [plaintiffs’ counsel] gave I think would jump by the issue of the trial which would be contrary to all our basic notions of fairness.
I think to make sense of the opinion, there are, probably not given that this is an insurance policy, a contract, and given the facts that have been alleged, I think what the Appellate Court was saying was that there are not a whole lot of issues that could arise. But I think that we have to go back to where the procedural path left us.
My interpretation is that we are with a motion to dismiss that has been granted by the trial Court, but reversed by the Appellate Court. And that the opinion clearly stated that the complaint does state a cause of action.
* * *
THE COURT: Well, I think we have to address the issue here of reliance, whether the complaint is limited only to those who relied or whether it goes further.
* * *
THE COURT: I think there has to be a clear finding either as a matter of fact or as a matter of law about the reliance issue.”

The next time that plaintiffs raised the issue of class certification was after judgment in the case. The trial court declined to certify the class post-judgment. As held in Schlessinger v. Olsen (1981), 86 Ill. 2d 314, 317-18, 427 N.E.2d 122, a trial court may rule upon a defendant’s motion to dismiss before the question of class certification has been decided, even though certification should be determined “as soon as practicable.” However the court further stated:

“[S]ome decision on class certification must be made prior to proceeding on the merits. The statute provides that this finding be made ‘as soon as practicable after the commencement of an action.’ Logically, that means prior to ruling on a motion which is dispositive of the merits of the action.” (Schlessinger, 86 Ill. 2d at 317, 427 N.E.2d at 1243.)

Although the trial court previously had denied plaintiffs’ motion to certify the class, that motion was denied without prejudice. Nothing prevented the plaintiffs from renewing that motion prior to a determination on the merits. We find that the trial court acted properly in declining to certify the class post-judgment.

We cannot say on this record that the trial judge either clearly abused his discretion or misapplied the law in denying certification of the purported class. Accordingly, for all the reasons set forth above, we affirm the decision of the trial court. Since we affirm the trial judge, we need not address the issues raised by Safeway’s cross-appeal.

Judgment affirmed.

LORENZ, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RAKOWSKI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN JOHNSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—3460
    Opinion filed November 15, 1991.

      Michael J. Pelletier, of State Appellate Defender’s Office, and Sidley & Austin, both of Chicago (John M. George, Jr., and Brooke A. Adams, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Susan Elias, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant was charged with the robbery of a person over the age of 60. Defendant’s first trial ended in a mistrial when the jury was unable to reach a unanimous verdict. Following a second jury trial, defendant was found guilty as charged and was sentenced to a term of seven years. The issues raised on appeal are: (1) whether the trial court erred in admitting testimony regarding the out-of-court and in-court identifications of defendant; (2) whether the State failed to prove defendant guilty of robbery beyond a reasonable doubt; (3) whether defendant’s right to due process was violated when the State allegedly withheld evidence regarding an alibi witness’ presence with defendant at the time of the robbery; and (4) whether defendant’s right to an impartial trial was violated by the State’s questions and comments regarding other unrelated criminal activity at the location where defendant was arrested.

At the second trial, the complainant, Edwin Blackwell testified that on the afternoon of December 31, 1988, he and his wife, Mildred Blackwell, drove to the Church of Good Shepherd at 57th Street and Prairie to deliver flowers. The complainant parked his car across the street about 30 feet from the side entrance of the church and walked to the church door while his wife remained in the car. As he approached the church, the complainant saw two men coming down 57th Street in his direction. One of the men, later identified as the defendant, came up to the complainant and put his hands on him, pretending to know him. At that time the complainant was about two feet away from the man and was facing him. The complainant had both hands in his pockets, one of which contained the complainant’s wallet with $62 in it. Defendant proceeded to turn the complainant around, and as he did, the complainant’s hands came out of his pockets. Defendant then took the complainant’s wallet and fled. The complainant stated that about 8 to 10 seconds elapsed from the time that defendant put his hands on him until the time that he ran off with his billfold. The police were subsequently contacted, and when they arrived, the complainant gave them a description of defendant. The complainant testified that he described defendant to the police as a man with a dark complexion who was 5 feet 8 or 9 inches tall and weighed about 170 or 175 pounds. The complainant also stated that he described defendant’s clothing as a red baseball cap, a tan jacket and red pants. Later that evening the complainant went to the police station where he identified defendant in a lineup as the man who had robbed him. At the trial the complainant identified defendant as the man who robbed him, and when he was shown a photograph of the lineup, he stated that it was the lineup that he had viewed on the night of the robbery. He also identified defendant in the photograph as the man he had identified to the police when he first viewed the lineup. The complainant stated that the red pants defendant was wearing in the picture were the same pants he was wearing at the time of the robbery but that the jacket he had on was not the same jacket worn during the robbery. The complainant also identified defendant from a separate photograph taken at the time of the lineup.

At the first trial, defense counsel, on cross-examination, had asked the complainant if he had mentioned anything to the police about the presence of facial hair. The complainant responded that at the time of the robbery defendant did not have a beard or a mustache. On cross-examination at the second trial, the complainant stated that he did not recall if defendant had a beard or a mustache at the time of the robbery. When questioned about his prior testimony he stated that he did not remember making the statement. He also stated that he did not remember telling the police at the time of the incident that defendant was 5 feet 7 inches as opposed to 5 feet 8 or 9 inches and that he weighed 160 pounds rather than 170 to 175 pounds.

The complainant’s wife, Mildred Blackwell, testified that on the day of the incident she had gone with her husband to the church to deliver flowers. She remained in the car, which was parked about 20 to 30 feet from the church on the other side of the street. Shortly before her husband was robbed, she saw the man she later identified as defendant approach her husband. She further testified that she saw him turn her husband around and take his billfold from his pocket. Defendant then ran west on 57th Street into an alley. When the police arrived, Mrs. Blackwell told them that the man who robbed her husband was wearing red jogging pants, a red cap and a brown or beige leather jacket. At the lineup which Mrs. Blackwell viewed that evening, she identified defendant as the man who had robbed her husband. At the second trial, Mrs. Blackwell also identified defendant as the man who had committed the robbery. She then identified a photograph of a lineup as the one she viewed on the night of the robbery and defendant as the man she had identified to the police. She further testified that defendant was wearing a different jacket in the lineup than the one he wore at the time of the robbery and that he was not wearing the cap he wore at that time.

On cross-examination, Mrs. Blackwell stated that she was positive of her identification of defendant as the man who had robbed her husband, and on redirect examination, she stated that her identification of defendant was not only based on the clothing he was wearing but also on the fact that he looked like the man who robbed her husband. When asked if defendant had a beard or a mustache on the night of the incident, Mrs. Blackwell stated that she could not see if he had a mustache but that he did not have a beard.

Officer Joe Parker testified that he first learned of the robbery when he received a radio communication to see an elderly couple at 57th Street and Prairie. Parker spoke with the complainant and his wife as well as a woman who lived in the neighborhood. As a result of this conversation, Parker and his partner went to an apartment at 5714 South Prairie and knocked on the door. One of the men in the apartment came to the window with a gun, saw the two officers and said “It’s the police.” He then ran past the rear door, which was propped up with a two by four, and kicked it down. After he kicked it down, the door swung open. The officers entered the apartment and followed the man into the living room, where they saw numerous people including defendant. At that time defendant was wearing gym shoes, red pants and cap and a tan jacket. When defendant saw the officers, he ran into the rear bedroom and barricaded the door with a chest of drawers. The officers forcibly entered the bedroom and saw defendant in the process of removing his jeans, cap and jacket. They also found a woman in the room with defendant. Defendant was told to get dressed, and he was placed under arrest. The other occupants of the apartment were also arrested at that time. In addition, drugs and drug paraphernalia were found on the premises. Parker also testified that the arrest reports on all of the occupants of the apartment were completed that night.

After defendant was arrested and brought to the police station, the complainant and Mrs. Blackwell were contacted to view a lineup. Parker testified that when he went to help Detective George Tracy organize the lineup, he found that defendant had changed his clothes and was wearing dark jeans and jacket and no cap. He ordered defendant’s clothing retrieved but only the red pants were found, which defendant was told to put back on. He was thus viewed in the lineup with his own pants, no shirt and a jacket he had obtained in the lock-up. Parker stated that during the lineup all of the participants were seated.

On cross-examination, Parker stated that when the complainant and Mrs. Blackwell described defendant to him they reported that his height was 5 feet 7 inches and that his weight was 160 pounds. When questioned by defense counsel, Parker stated that the complainant and Mrs. Blackwell reported that, although defendant was first seen coming down the street with another man, only defendant committed the robbery. Defense counsel then showed him a copy of his report, which contained the statement that both men were involved in the robbery and that one man held defendant while the other one robbed him. Parker replied that even though he signed the report, his partner was the one who prepared it.

Detective George Tracy testified that the complainant and his wife separately viewed the lineup and identified defendant as the man who had committed the robbery. He added that Mrs. Blackwell said that defendant was dressed and looked like the man who had robbed her husband. When asked about an entry in his report at the time of the lineup that Mrs. Blackwell was not positive about her identification, he stated that her statement that defendant looked like the man who had robbed her husband was not considered a positive identification but that she showed no hesitancy when she identified defendant.

Diane Mosley testified on defendant’s behalf that on December 31, 1988, she and defendant went to the house of one of his friends when defendant had a disagreement with her mother. She stated that she was with him from 4 a.m. on the day of the robbery until the police arrived at around 4:30 that afternoon.

On cross-examination, Mosley stated that she was asleep when the police entered the room, and she was not trying to undress. She also testified that the door to the bedroom had not been barricaded. Mosley stated that when the police arrested her and everyone else in the apartment, she did not give them her real name, but she could not remember what name she used. She further testified that she did not see any drugs in the apartment. In response to the State’s questioning, Mosley acknowledged that she did not inform the police that defendant had been with her when she learned that he was charged with the robbery.

Defendant testified that he and Diane Mosley arrived at his friend’s house at around 4 a.m. on the day of the robbery and that they remained in bed until the police arrived that afternoon. He denied having a red cap or tan jacket. Defendant also added that the police kicked the bedroom door open and denied that it was barricaded by furniture. The police told him to get dressed but would not permit him to put on a black shirt that he had worn over to the apartment. Finally, defendant denied knowing or robbing the complainant.

On cross-examination, defendant stated that he did not try to change his clothes when he was at the station and that the jacket he wore in the lineup was his own jacket. According to defendant, Detective Tracy did not advise him of his Miranda rights, or ask him any questions about where he had been on the day of the robbery or the previous night.

In rebuttal, Officer Parker identified the 11 arrest reports as the reports of everyone arrested at the apartment at 5714 South Prairie on the day of the robbery. He also stated that everyone at the apartment, which included six females and five males, was arrested. Each report contained the name, address and description of the person. Parker added that a woman other than Mosley was with defendant when he was arrested.

Detective Tracy testified in rebuttal that after the lineup he advised defendant of his Miranda rights and questioned him about the robbery. He then testified that defendant told him that he had been at the apartment at 5714 South Prairie since 3 p.m. on December 31, 1988, and that he did not mention being with Mosley since 4 a.m. that morning.

Defendant contends that the admission of testimony regarding the out-of-court and in-court identification of him was improper because it was based on a suggestive pretrial lineup. Although defendant has raised this issue on appeal, he failed to object to the admission of this testimony at the trial or raise the issue in his motion for a new trial. Under these circumstances, an issue is usually waived. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) However, “a reviewing court can consider matters not argued below if the matter could result in substantial prejudice to defendant’s rights.” (People v. Redmond (1980), 85 Ill. App. 3d 599, 604, 407 N.E.2d 132.) Because the alleged error in this case is one which would affect defendant’s right to due process, we will consider this issue even though it was not properly preserved for review. See Supreme Court Rule 615(a) (134 Ill. 2d 615(a)); People v. Weinstein (1966), 35 Ill. 2d 467, 471, 220 N.E.2d 432.

Defendant claims that the lineup was suggestive because he was the only one wearing red trousers similar to those worn by the robber. We disagree. The lineup in question was composed of five men who appeared to be of similar age, weight and height although they were viewed in a sitting position. Several men in addition to defendant were black, and they all wore casual or informal clothing. Although defendant was the only one with red trousers, “ ‘any complaint that there were differences between the appearance of defendant and the other lineup participants goes to the weight of the evidence, rather than to its admissibility.’ ” (People v. Trass (1985), 136 Ill. App. 3d 455, 463, 483 N.E.2d 564, quoting People v. Philson (1979), 71 Ill. App. 3d 513, 520, 389 N.E.2d 1223.) Furthermore, there is no requirement that the participants in a lineup be identical. (People v. Cardenas (1991), 209 Ill. App. 3d 217, 227, 568 N.E.2d 102.) In this case, defendant was wearing red pants when arrested, and there was certainly no requirement that the police find red pants for everyone in the lineup. Furthermore, the photograph of the lineup contained in the record shows that all the participants including defendant were basically similar in appearance.

Although defendant relies on People v. Franklin (1974), 22 Ill. App. 3d 775, 317 N.E.2d 611, we find it factually distinguishable. In Franklin, although the police found clothing in defendant’s apartment that matched the description of clothing worn by the robber, defendant was not wearing the clothing when the police came to his apartment, and he selected other clothes to wear to the police station when the police arrested him. However, prior to the lineup, the police forced defendant to change from the clothes he was wearing to the trousers and coat that had been implicated in the robbery. In addition, when one of the witnesses viewing the lineup tentatively identified the defendant commenting that his hair looked different, the police had defendant put on the afro wig that was allegedly worn by the same person who wore the coat and trousers. The clothing worn by the defendant in Franklin, which consisted of shocking pink pants, a camel hair coat with a fur collar and an afro wig, was also more distinct than the red trousers worn by defendant in this case. In this case, defendant was either wearing red pants or selected them to wear to the station when the police arrested him. Even though the police would not allow him to wear someone else’s trousers to the lineup, he was allowed to appear without the jacket and cap he had worn to the station, which were also allegedly part of the robber’s attire. Thus, the police in this case did not take the same measures as in Franklin to promote identification of the defendant as the offender. For these reasons, we conclude that the lineup in which defendant was identified as the man who robbed the complainant was not unduly suggestive. Based on our finding that the lineup was not suggestive, we need not reach the questions of whether under the totality of circumstances the identification was reliable (see Neil v. Biggers (1972), 409 U.S. 188, 198, 34 L. Ed. 2d 401, 410-11, 93 S. Ct. 375, 381-82), whether the State established an independent basis for the in-court identification or whether defense counsel was ineffective in not objecting to the identification testimony.

Defendant next contends that the State failed to prove him guilty of the robbery beyond a reasonable doubt. When an appeals court reviews the sufficiency of evidence, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

In addition to the witnesses’ pretrial and in-court identifications of defendant, there was Officer Parker’s testimony that when he and his partner saw defendant shortly after the robbery he was wearing clothing that was purportedly similar to that worn by the man who committed the robbery. Parker also stated that when defendant saw them he ran into another room and tried to barricade the door, but the officers entered the room and found defendant trying to remove his clothes. Detective Tracy and Officer Parker both testified that prior to being viewed in a lineup, defendant tried to exchange his pants and jacket with someone in the detention area. We conclude that this evidence was sufficient for the trier of fact to find defendant guilty beyond a reasonable doubt.

Defendant next contends that his right to due process was violated when the State withheld evidence favorable to his defense. The evidence which was allegedly withheld was an arrest report of an alibi witness which would have corroborated his defense. Defendant claimed that he was at a friend’s apartment with his girl friend, Diane Mosley, at the time of the robbery. Officer Parker testified that he arrested defendant at this location along with 11 other people who were also in the apartment. According to Parker’s testimony, the other occupants were arrested because drugs and drug paraphernalia were found in the apartment. Although defendant claimed that he was with Diane Mosley when the police arrived, there was no arrest report with her name. Mosley testified that she gave the police an alias name but could not remember what it was. Parker saw Mosley at the trial and stated that she was not among the people arrested that night. The arrest report which the officer completed that night contained the entry that 13 people (including defendant) rather than 12 people were arrested. However, in response to defense counsel’s request for the arrest reports at issue, only 12 reports were tendered. Defendant argues that the discrepancy between the number of people arrested as indicated in the police officer’s report and the number of arrest reports submitted is evidence that the State deliberately withheld the arrest report for Mosley and that this was a violation of his right to due process under Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.

The suppression of evidence favorable to an accused, upon request, is a violation of due process where the evidence is material to guilt or punishment. (Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97.) To prove a Brady violation, a defendant must show that evidence actually existed, that it was in possession of the prosecutor, that it was favorable to the defense and that the prosecutor failed to disclose the evidence in response to a specific request. People v. Sims (1987), 166 Ill. App. 3d 289, 310, 519 N.E.2d 921.

In this case, the officer testified he arrested everyone who was in the apartment on the night of the incident and that Diane Mosley was not among them. In addition, the prosecutor told the court that reports of all those arrested were tendered to defense counsel. Although defendant claims that one arrest report was withheld by the State as evidenced by the officer’s entry on his written report that 13 people were arrested, he did not cross-examine the officer on the discrepancy in his report and the number of arrest reports tendered to defense counsel. Where defendant has failed to present any evidence that the missing report ever existed, the State cannot be accused of withholding such evidence. (Sims, 166 Ill. App. 3d at 310.) Furthermore, the jury heard the conflicting testimony regarding the existence of Mosley’s arrest report as well as her presence with defendant on the night of the incident, and they found the State’s witnesses more credible. Therefore, defendant’s claim that he is entitled to a reversal of his conviction or a new trial based on the State’s withholding of evidence is without merit.

Defendant’s final contention is that he was denied a fair trial by the prosecutor’s questions and comments regarding other irrelevant criminal activity at the place where defendant was arrested. Defendant first argues that the prosecutor elicited testimony from Officer Parker regarding the presence of illegal drugs and a gun in the apartment where defendant was located and also asked about drugs during his cross-examination of defendant and Diane Mosley. Defendant also claims that the prosecutor in closing argument improperly referred to the apartment where defendant was staying as a bordello drug house.

On direct examination, Parker testified that when he knocked on the door of the apartment in question a black male came to an adjacent window carrying a firearm. Parker then stated that when he entered the apartment he first apprehended the man with the firearm, whom he referred to as Louis Lowell. On redirect examination, Parker testified that he arrested everyone in the apartment because he found drugs and drug paraphernalia on the premises as well as in the occupants’ possession. On cross-examination, the prosecutor asked Mosley and defendant if drugs and drug paraphernalia were in the apartment. They both denied the presence of drugs but defendant made, the unelicited statement — “I never saw any drugs. I know they was using them.” Defendant also initiated several references to the gun as follows:

“Q. Took you directly from lock-up to the lineup.
A. Yes, and didn’t tell me nothing. I thought I was arrested for something else.
Q. What was that?
A. Being at wrong place and wrong time.
Q. For Papa?
A. Papa having a gun. They beat him to death almost for having a gun and—
Q. Back up a second. Papa had a gun?
A. They said it was his. I come to find out it wasn’t his.
Q. Did you see a gun?
A. Yes I did. The police had it — said someone had it and said it was Papa’s because it was his apartment.”

In closing argument, the prosecutor made two references to the man with the firearm in the context of describing how the officers entered the apartment and apprehended defendant and the other occupants. The only other allegedly improper comment by the prosecutor was his statement that following the robbery, defendant went to “this bordello drug house, however you want to look at it — .”

During the State’s case in chief, defendant made no objection to the admission of the officer’s testimony regarding the man with the firearm or the discovery of drugs and drug paraphernalia. Therefore, any issue as to these questions and comments has been waived for review. (Enoch, 122 Ill. 2d at 186.) The only objection that was raised by defense counsel was to the cross-examination of Mosley regarding the presence of drugs and the prosecutor’s reference in closing argument to the bordello drug house. In both instances, any potential prejudice to defendant was cured when the objection was sustained. Furthermore, even if the error was not cured, any prejudice that may have resulted was minimal where the ownership of the gun was not attributed to defendant, he denied knowledge of the drugs in the apartment and there were no comments by the prosecutor connecting defendant with the drugs or drug paraphernalia. We thus conclude that any error that did occur was harmless and did not interfere with defendant’s right to a fair trial.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

EGAN and LaPORTA, JJ., concur.


author: JUSTICE LaPORTA

text:
      In re ESTATE OF WARREN CASEY, Deceased (Milo Popovich, Claimant-Appellant, v. Harris Trust and Savings Bank, as Ex’r of the Will of Warren Casey, Deceased, Respondent-Appellee).
    First District (6th Division)
    No. 1—90—1595
    Opinion filed November 15, 1991.

      Maxwell & Perlstein, of Chicago (Andrew J. Maxwell and Steven S. Potts, of counsel), for appellant.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Barbara K. Lunderga, Robert H. Joyce, and Bryan W. Sill, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

Milo Popovich filed a claim against the estate of Warren Casey contending he was entitled to money promised to him by Casey for personal services provided by Popovich. Popovich alleged the promise was memorialized by Casey in writing before Casey’s death. The one-count complaint was dismissed for failure to state a cause of action and Popovich was given leave to amend. Popovich filed an amended complaint in six counts claiming that Casey had promised him money as memorialized in writing and several items of personal property and cash as promised orally or through an implied contract. The trial court dismissed count 1 for failure to state a cause of action. The trial court dismissed counts II, III and IV, dealing with promises of money and specific personal items, because those claims were time barred and did not relate back to the original claim. The court took no action on counts V and VI dealing with Casey’s alleged transmission of the AIDS virus to Popovich. Popovich appealed the dismissal of the four counts.

On appeal, plaintiff raises these issues: (1) whether count I of the amended complaint was properly dismissed because it did not state a cause of action and (2) whether counts II, III and IV of the amended complaint were properly dismissed, did not relate back to the original claim and were therefore time barred because they were not filed within the six-month claims period.

The details of the alleged agreement between Popovich and Casey appear in the record. On May 24, 1989, Milo Popovich filed a one-count claim against Casey’s estate seeking in excess of $700,000. The claim alleged that in 1984, Casey made certain oral and written promises to Popovich in exchange for services performed and other valuable consideration. The promises of payment were allegedly memorialized in a writing in letter form attached as an exhibit to the complaint and dated July 29,1986, which stated:

“Milo Popovich,
This is to let you and your lovely family know that if I, Warren Casey, die before you, or, if you die before your loan to me is paid in full, then the balance of your $10,000 loan, dated July 28,1986, to me is immediately cancelled.
However, if you survive me, I leave to you, Milo Popovich, one hundred times the balance of that loan owed to me. Thank you for two of the best years in my life. You’re very special to me and always will be.
Love
(signature)
Warren Casey
Witnessed:
(Signature of Milo S. Popovich)
July 29, 1986”

Warren Casey died on November 8, 1988. Casey’s will, dated May 29, 1986, was admitted to probate and letters of office were issued for his estate on November 28, 1988, naming Harris Trust & Savings Bank as executor of the estate.

Popovich’s complaint alleged that in reliance on Casey’s promises he provided care and other valuable services to Casey, including “caretaking of decedent’s apartment, performing secretarial and clerical duties for decedent, chauffeuring, domestic chores, including cleaning and shopping, and caring for decedent when ill.” Popovich claimed that he detrimentally relied on the promises from Casey, foregoing “other opportunities.”

Popovich alleged that decedent breached this expressed, or in the alternative, implied, contract by failing to make appropriate arrangements for the payment of his claim. Popovich sought an amount in excess of $700,000, pursuant to the purported agreement. The executor of the estate moved to dismiss the claim and that motion was granted on October 20, 1989, giving Popovich leave to file an amended complaint within 30 days.

On November 20, 1989, Popovich filed an amended complaint in six counts. Count I alleged Popovich performed various personal services for Casey from 1984 to 1986 and withheld acting on several opportunities of his own at Casey’s request based on the written promise to devise to Popovich a portion of Casey’s estate.

Counts II and III sought various items of Casey’s personal property allegedly promised to him for the previously mentioned personal service and forbearances. Popovich sought as relief the particular portions of Casey’s estate allegedly promised to him including: an apartment in California, a choice of jewelry from Casey’s safe deposit box, Casey’s rights and royalties to the stage play “Grease,” a one-acre lot adjacent to Casey’s property in Sutter Creek, California, a Corvette, $50,000 on his 50th birthday, financial assistance to Popovich for the rest of his life and financial backing for Popovich’s proposed restaurant venture.

Count IV alleged that an implied contract existed between Casey and Popovich for services rendered by Popovich and that Casey had failed to sufficiently compensate Popovich for the services performed. Counts V and VI alleged that Popovich and Casey had a sexual relationship from 1984 to 1986 and that Casey knew or should have known he had contracted Acquired Immune Deficiency Syndrome (AIDS) and could have warned Popovich. Popovich alleged that he has since tested positive for the HIV virus, a pre-AIDS condition. Popovich sought $1 million for the physical injury and emotional distress.

The executor moved to dismiss count I of the amended complaint for failure to state a cause of action and to dismiss counts II, III and IV because the counts alleged new causes of action that were time barred. On March 19, 1990, the trial court entered an order dismissing counts I, II, III and IV of Popovich’s amended claim with prejudice. The court subsequently denied Popovich’s motion for reconsideration and Popovich appealed.

First we consider whether the trial court properly dismissed count I of the amended complaint for failure to state a cause of action.

Popovich contends that count I clearly states a prima facie cause of action for breach of an express written contract based on adequate and valid past consideration and that the trial court erred in dismissing this count. On a motion to dismiss, the trial court must take all well-pled facts as true and draw reasonable inferences from those facts in the nonmoving party’s favor. Barbour v. South Chicago Community Hospital (1987), 156 Ill. App. 3d 324, 325, 509 N.E.2d 558.

Popovich’s claim against the estate based on the purported written agreement seeks money in exchange for past services rendered. Popovich contends that the consideration for this agreement is seen in the line, “Thank you for two of the best years of my life.” Popovich concedes that Illinois generally forbids a contract to be based on past consideration, but Popovich contends that his situation meets three of the four exceptions to that rule as articulated in Warner Agency, Inc. v. Doyle (1985), 133 Ill. App. 3d 850, 856-57, 479 N.E.2d 468, 473. The court in Warner stated:

“The general rule is that if the alleged consideration for the promise has been conferred prior to the promise upon which alleged agreement is based, there is no valid contact. As with all general rules, there are exceptions. These are where (1) the consideration was rendered at the request of the promisor; (2) the alleged consideration was of a ‘beneficial’ or ‘meritorious’ nature which placed the promisor under a moral duty or obligation such that consideration for the promise will be implied; (3) the promise is to pay ‘a debt due in conscience,’ such as a promise to support an illegitimate child; or (4) the promise is founded upon an antecedent legal obligation, such as a debt which has become barred by the statute of limitations. [Citation.] Not every benefit conferred upon an individual is deemed to create a moral duty to repay which forms consideration for a promise of the person benefited to pay for the benefit. *** [A]ll circumstances must be of such a nature as to presuppose a request for the benefit.” Worner, 133 Ill. App. 3d at 856-57.

Popovich contends that his complaint alleges facts permitting him to rely on past consideration to meet the first three Warner exceptions listed. Though Popovich fails to detail how the facts meet any of the three exceptions, he does argue that “it cannot be doubted that [he] made factual allegations sufficient to state a prima facie cause of action” and that “count I of the amended claim clearly states a prima facie cause of action for breach of an expressed written contract to devise or bequeath property, based upon adequate and valid past consideration.”

In addition, Popovich contends that the trial court erred by not permitting Popovich a hearing on the merits. Popovich contends that a hearing would debunk arguments brought by the executor, including the executor’s contention that the written agreement was merely Casey’s “statement of testamentary intention” and the presumption that prior services rendered were paid based on Casey’s $10,000 loan to Popovich. Popovich contends that a hearing would permit him to establish that the service rendered and his forbearances gave Casey “two of the best years” of his life and were adequate consideration for the written agreement.

Popovich rejects the argument that he may have rendered his services gratuitously and cites In re Estate of Dal Paos (1969), 118 Ill. App. 2d 235, 237-39, 254 N.E.2d 300, to support his position. In Dal Paos, Anna DeRichi filed a claim against Dal Paos’ estate claiming that she was owed part of the estate in exchange for services she rendered to Dal Paos for the five years preceding his death. The court found that although the two lived together for several years, no family relationship existed between them. (Dal Paos, 118 Ill. App. 2d at 239.) The two were not related by blood or marriage, and there was no evidence they lived as man and wife. The original expressed agreement between them was that DeRichi would move in and pay $16 room and board to Dal Paos. That did not change until the two bought a house together 10 years later, splitting the expenses equally for taxes, utilities and groceries. During that time, DeRichi did all the housework, cooking, laundry and some of the yard work. The trial court found their relationship together was pursuant to this implied contract, that the services were rendered but they were not paid for and that Dal Paos intended to pay for them. The appellate court affirmed, finding that the two never married, never loaned each other money and Dal Paos left no money to DeRichi’s children. (Dal Paos, 118 Ill. App. 2d at 239.) The appellate court held that “[t]hese factors indicate that [DeRichi’s] services were not rendered in discharge of the mutual moral or legal obligations of a family relationship and refute [the estate’s] assertion that such a relationship existed.” Dal Paos, 118 Ill. App. 2d at 239.

Popovich contends that he too rendered services in anticipation of payment and not because of some moral or legal obligation of a family relationship.

The executor argues that Popovich failed to state a cause of action for breach of contract because the amended complaint fails to establish facts that would permit Popovich to fit into one of the exceptions in Worner so as to allow past services to be sufficient consideration for the agreement. The executor rejects Popovich’s contention that an evidentiary hearing is required because the issue of whether there is adequate consideration for an agreement is a question of law, not fact. (Lesnik v. Estate of Lesnik (1980), 82 Ill. App. 3d 1102, 1107, 403 N.E.2d 683, 687.) The executor contended that the outstanding loan permitted the trial court to presume that services previously rendered had been paid. In the case of In re Estate of Schonhoff (1965), 65 Ill. App. 2d 147, 212 N.E.2d 18, the court held that “[w]here a claimant borrows from a decedent, a presumption arises that a claim based on services previously rendered has been paid, or that the claimant never intended to charge for such services.” Schonhoff, 65 Ill. App. 2d at 150.

The estate argues that Popovich has failed to meet any of the factual criteria that would permit his claim to fall into one of three exceptions in Worner: (1) the consideration was rendered at the request of Casey; (2) the consideration was of a “beneficial” or “meritorious” nature which placed Casey under a moral duty or obligation such that consideration for the promise will be implied; or (3) the promise is to pay a debt due in conscience.

The executor argues that Popovich has pleaded no facts establishing that his services were rendered at Casey’s request and for Casey’s benefit. The executor argues that the written agreement actually refutes such a conclusion, because nothing in the agreement refers to any service rendered by Popovich nor does it give any indication of Casey’s request or any benefit to him from the services.

The executor argues further that Popovich has pleaded no facts establishing that the promise can be implied because the consideration was of a “beneficial” or “meritorious” nature so as to place Casey under a moral duty or obligation to repay him. The executor contends that the services allegedly rendered are not the type for which compensation would be expected if done in the context of affinity and affection. (In re Estate of Spaulding (1989), 187 Ill. App. 3d 1031, 1037-38, 543 N.E.2d 980, 985.) The executor contends that Popovich would suffer no gross fraud if he was left uncompensated for his “alleged occasional housekeeping and caretaking services.” Greenwood v. Commercial National Bank (1955), 7 Ill. 2d 436, 438, 130 N.E.2d 753, 756.

The executor then argues that the letter constitutes nothing more than testamentary intent (“if I, Warren Casey, die before you *** if you survive me”), gratitude (“thank you for two of the best years of my life”), and affection (“you’re very special to me and always will be”). The executor argues that even if the letter could be construed as an intention to make a will, mere statements by Casey of his intention to make a will are not sufficient proof to warrant the inference that a contract of any kind was made. Spaulding, 187 Ill. App. 3d at 1036.

The executor argues that the written agreement belies Popovich’s claim in the complaint that the elements of a valid contract were met. Where a discrepancy exists between allegations in the complaint and attached exhibits, the exhibits are controlling. Outboard Marine v. James Chisholm & Sons, Inc. (1985), 133 Ill. App. 3d 238, 247, 478 N.E.2d 651, 656.

Popovich’s complaint was dismissed on the estate’s motion filed under section 2 — 615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) Motions under section 2 — 615 attack the legal sufficiency of the complaint. (Weimann v. County of Kane (1986), 150 Ill. App. 3d 962, 968, 502 N.E.2d 373.) Granting a motion to strike or dismiss is within the sound discretion of the trial court. Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 440 N.E.2d 1022.

In determining the propriety of dismissal of an action, this court is concerned on review only with questions of law presented by the pleadings, and the court tests the sufficiency of the complaint by ascertaining whether the essential elements of a cause of action were alleged. Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 191, 478 N.E.2d 603.

The record establishes that in its ruling, the trial court supported or “adopted” the arguments proffered by the executor. The executor’s argument was twofold. First, the writing was a testamentary disposition but not a will because it did not meet the statutory requirements of a will. Second, the executor argued that the agreement was not a valid contract because it lacked present consideration and failed to meet the Warner exceptions that permit past consideration to serve as the consideration for the contract agreement.

We conclude the trial court was correct when it found Popovich failed to state a cause of action. The letter dated July 29, 1986, clearly could not meet the statutory requirements of a will. Popovich has failed to establish how his situation fits into any of the three exceptions he cites from Warner. He has not established that the consideration was rendered at the request of Casey, or that it was of a beneficial or meritorious nature which placed Casey under a moral duty or obligation such that consideration for the promise would be implied, or that it was a promise to pay a debt due in conscience.

We note that Casey authored the alleged testamentary letter on July 29, 1986, two months after signing his May 29 will. He died 28 months later, giving him ample time to revoke his will or to write a codicil. He did neither.

Next we consider whether the trial court properly dismissed counts II, III and IV of the amended complaint because the charges did not relate back to count I in the original complaint.

The trial court ruled that the claims alleged in counts II, III and IV were new claims for activities not contained in count I and therefore could not relate back to the filing date of the original claim. The court stated that because they did not relate back to the original claim, the claims were time barred. Under the Probate Act, claims against an estate must be filed within the six-month period that begins when the letters of office are issued. Ill. Rev. Stat. 1989, ch. 110½, par. 18 — 12.

There is no question that the amended complaint was filed beyond the six-month statutory deadline. Popovich contends that counts II, III and IV relate back, however, to the original complaint, which was filed within the six-month time period, and that they merely provided more detail and specificity for plaintiff’s original claim. Section 2 — 616(b) of the Illinois Code of Civil Procedure permits an amended pleading to relate back to the filing date of the original pleading if two requirements are met: (1) the original pleading was timely filed and (2) the original and amended pleading grew out of the same transaction or occurrence. Ill. Rev. Stat. 1989, ch. 110½, par. 2 — 616(b).

Counts II, III and IV allege Popovich provided Casey with personal services and in exchange Casey orally promised him various itéms such as $50,000 in cash on his 50th birthday, a Corvette, an apartment in California, a choice of jewelry from Casey’s safe deposit box, Casey’s rights and royalties to the stage play “Grease,” a one-acre lot adjacent to Casey’s property in Sutter Creek, California, financial assistance to Popovich for the rest of his life and financial backing for Popovich’s proposed restaurant venture.

Popovich contends that his amended complaint “identified the core transactions on which were based the legal theories pleaded.” Popovich contends that the different items of property are not different agreements but rather were promised to him as part of a single, ongoing oral agreement between Popovich and Casey. He argues that the executor’s position that each agreement is separate would require that the court believe Popovich performed certain services for certain items of Casey’s property. Instead, Popovich argues that the cash and personal items were general compensation promised in consideration for all of Popovich’s services.

The executor argues that the amended complaint was properly dismissed by the trial court because counts II and III seek items of Casey’s property and some cash not sought in the original complaint. In addition, the executor notes that count IV asks the court to find that a contract implied at law existed because of the alleged services rendered for Casey by Popovich. The executor contends that this argument is exactly opposite to the claim made in the original complaint, which sought money allegedly promised in a written contract.

We find Popovich’s argument implausible. Surely if Popovich believed that all of these items were due to him from the start, he would have sought them in his original complaint. We find that the claims alleged in counts II, III and IV do not relate back to the original complaint under the statutory framework of section 2 — 616(b). Although the original complaint based on the letter of July 29 was timely filed, we find that the relief sought in the amended complaint includes in addition thereto alleged oral agreements above and beyond those contained in the July 29 letter. The trial court ruled correctly when it dismissed counts II, III and IV.

For all of the foregoing reasons, therefore, we affirm the trial court order dismissing counts I, II, III and IV of Popovich’s amended complaint.

Affirmed.

McNAMARA and EGAN, JJ., concur.


text:
    LEO STOLLER, Plaintiff-Appellant, v. RUSSELL STOLLER et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—90—3146
    Opinion filed November 15, 1991.

      Edward L.S. Arkema and Ralph A. Anderskow, both of Chicago, for appellant.
    William J. Harte, Ltd., of Chicago (William J. Harte, Stephen L. Garcia, and Courtney N. Nottage, of counsel), for appellees.
   JUSTICE LaPORTA

delivered the opinion of the court:

Plaintiff, Leo Stoller, appeals an interlocutory order of the circuit court of Cook County which denied his request for vacatur and a stay of a previously entered arbitration award. Plaintiff initiated this action in chancery to challenge the award made by the arbitrators who had been appointed to adjudicate an intrafamily dispute over the ownership of Stealth Industries, Inc., a corporation in which the plaintiff and the individual defendants, Russell and Christopher Stoller, claimed an interest.

In his complaint, plaintiff asserted that the arbitrators who had been appointed and had decided the dispute between the parties should have been disqualified based upon conflicts of interest which arose as a result of their legal representation of the plaintiff and defendants. The trial court issued an interlocutory order which held that the conduct of the arbitrators did not, as a matter of law, constitute a conflict of interest. The court’s order denied the relief requested by plaintiff and continued the matter for an evidentiary hearing on the factual allegations raised in plaintiff’s complaint. Pursuant to Supreme Court Rule 307 (134 Ill. 2d R. 307), plaintiff filed a notice of appeal of the interlocutory order refusing his request for vacatur and for a stay of the arbitrators’ award.

On appeal, plaintiff contends that (1) the trial court improperly narrowed the scope of its inquiry to a question of law; (2) the precedent relied upon by the trial court in entering its interlocutory order applies exclusively to umpires and not to arbitrators; (3) the precedent relied upon by the trial court does not apply to the instant case; (4) plaintiff was entitled to a stay of the arbitration award; (5) the trial court erred in finding that the appointed arbitrators need not have been disqualified, as a matter of law, based upon conflicts of interest as a result of their legal representation of the parties; and (6) the award entered by the arbitrators should be set aside.

The record indicates that on November 6, 1989, plaintiff and the individual defendants entered into a "written agreement under which the parties submitted their disputes as to the ownership and operation of Stealth Industries, Inc., to binding arbitration before George N. Leighton, George Feiwell, and Ronald H. Balsón as arbitrators. The agreement provided, in relevant part, as follows:

“Each of LEO, RUSSELL and CHRISTOPHER hereby acknowledge that GEORGE N. LEIGHTON, GEORGE FEIWELL and RONALD H. BALSON have each rendered legal services to them, or on their behalf. Each of LEO, RUSSELL, and CHRISTOPHER hereby waive any and all claims of privilege or of conflict of interest and specifically request that these arbitrators accept said appointment and assist in their dispute resolution.”

The agreement stated further:

“It is the intent of the parties to resolve pending legal matters. They shall enlist the assistance of Messrs. LEIGHTON, FEIWELL and BALSON to assist them. The parties shall cause STEALTH to promptly and timely pay all statements rendered from Messrs. LEIGHTON, FEIWELL and BALSON.”

On December 18, 1989, the arbitration convened pursuant to the terms of the agreement. The parties were present along with Leighton and Balsón, but Feiwell did not appear. The parties agreed on the record to proceed with the arbitration and to have their dispute resolved by only two arbitrators, Leighton and Balsón. At the commencement of the arbitration, each of the parties specifically stated that he had waived any right to assert privilege or a conflict of interest which might have existed as a result of the legal representation of any or all of the parties by Leighton and Balsón. All of the parties stated that they voluntarily chose to proceed with the arbitration without any objection. The parties also stated that they understood that they had the right to have an attorney present to represent their individual interests during the arbitration but chose to proceed without counsel.

After considering the proofs and testimony submitted by.the parties, the arbitrators issued their award of arbitration dated January 31, 1990. The award of arbitration reflected that the arbitrators found that Russell Stoller was the sole shareholder of Stealth Industries, Inc., with the sole right and authority to operate the corporation and that neither Leo Stoller nor Christopher Stoller had an ownership interest in the corporation.

Plaintiff, Leo Stoller, subsequently requested that the arbitrators’ award be modified and clarified. On March 14, 1990, the arbitrators denied plaintiff’s request, for modification and clarification of the award.

On May 30, 1990, plaintiff filed in the circuit court a motion for a stay pendente lite of the private arbitrators’ award dated January 31, 1990. This motion was stricken by the trial court, but plaintiff was granted leave to file an amended motion. On July 9, 1990, Leo filed his brief in support of his motion for a stay pendente lite of the arbitrators’ award and for restraining and removal orders against defendants Russell Stoller and Christopher Stoller. The trial court allowed plaintiff’s brief to stand as his motion.

On August 6, 1990, the individual defendants filed their response to the plaintiff’s motion for a stay pendente lite of the arbitrators’ award. On August 8, 1990, plaintiff filed his verified first amended complaint to stay and vacate the arbitrators’ award and for declaratory judgment and for other relief. On August 13, 1990, plaintiff filed his reply to the defendants’ response to plaintiff’s motion for stay pendente lite of the arbitrators’ award and for restraining and removal orders against Russell and Christopher Stoller.

At the hearing on plaintiff’s motion for a stay of the arbitrators’ award, plaintiff asserted that the arbitrators had acted under a conflict of interest and that, as a matter of law, they could not represent him and also act as neutral arbitrators. The trial court indicated that the record was insufficient to support the issuance of a stay on grounds other than the assertion of a conflict of interest as a matter of law. The court continued the matter for further briefing and argument on this issue and scheduled a hearing for October 12, 1990, to determine whether this issue was determinative of the plaintiff’s motion for a stay.

Russell and Christopher filed a memorandum of law addressing this issue, and plaintiff filed a supplemental brief in support of his motion. Upon consideration of the briefs and arguments of the parties, the trial court concluded that the arbitrators in the instant case did not, as a matter of law, act under a conflict of interest merely because they had previously represented the parties involved in the dispute. The court based its decision upon the reasoning employed in Strong v. International Building Loan & Investment Union (1899), 183 Ill. 97, 55 N.E. 675, which held that the law recognizes an exception to the conflict of interest rule where an attorney acts as an umpire. On this basis, the trial court denied plaintiff’s request for an immediate stay of the arbitrators’ award. The trial court went on to indicate that there may be further questions of fact to be decided before a final determination of the conflict of interest issue can be made.

At a subsequent hearing, the trial judge stated that all he had decided earlier was that the dual status of attorney and arbitrator did not, as a matter of law, create a conflict and that plaintiff had not shown that he was entitled to a stay as a matter of law. The judge specifically indicated that he did not decide whether the conduct of the arbitrators in the instant case raised a conflict of interest because that required a determination of a question of fact. The court advised the plaintiff that at the next hearing, plaintiff would be required to present evidence of a conflict of interest which consisted of something more than the mere dual status of attorney and arbitrator.

Pursuant to Supreme Court Rule 307 (134 Ill. 2d R. 307), plaintiff has appealed the order of the trial court.

Initially, we note that the only order appealed from is the trial court’s order of October 15, 1990, which held that plaintiff was not entitled to a stay as a matter of law. Thus, our review of this matter is limited to the propriety of that order, and we are permitted to determine only the narrow issue of whether, as a matter of law, a per se disqualification arose which precluded these attorneys from acting as arbitrators in this matter. In making this determination, we must examine the propriety of the trial court’s action at the time the cause was brought before the court.

Plaintiff initially filed a petition to vacate the arbitrators’ award and a motion for a stay pendente lite and for restraining and removal orders against defendants Russell Stoller and Christopher Stoller.

A motion for a stay pendente lite is analogous to a request for a preliminary injunction. The function of a preliminary injunction is to maintain the status quo until the case is disposed of on the merits, and a motion seeking such relief is not normally granted in the absence of an evidentiary hearing at which the movant has established entitlement to the relief requested. Peoples Gas Light & Coke Co. v. City of Chicago (1983), 117 Ill. App. 3d 353, 355, 453 N.E.2d 740, 742.

In the instant case, the trial court first addressed the contentions of the parties when it considered plaintiff’s motion for a stay. Thus, the posture of the case was such that defendant Russell had control of Stealth, and plaintiff had been removed from any position of power or control in the corporation. A request for maintenance of the status quo required, therefore, that these relationships be left intact until an evidentiary hearing was held and the matter was disposed of on the merits. Peoples Gas Light & Coke Co., 117 Ill. App. 3d at 355, 453 N.E.2d at 742.

Plaintiff initially contends that the trial court improperly narrowed the scope of its inquiry to a question of law. We observe that the trial court’s order of October 15, 1990, reflects that pursuant to the agreement of the parties, the trial court first addressed this issue of law.

Plaintiff argues, without citation to appropriate authority, that the trial judge acted improperly by first addressing the claim that plaintiff was entitled to a stay of the arbitrators’ award as a matter of law. Yet, the trial judge fully recognized and stated for the record that he had not, indeed could not on the record then before him, decide that plaintiff was not entitled to a stay based upon the conduct of the arbitrators in the instant case. Rather, the court made an initial determination that plaintiff had not established, as a matter of law, that the arbitrators acted under a conflict of interest merely by virtue of their dual status as attorney and arbitrator. The court’s decision to proceed first on the question of law was prompted by plaintiff’s argument at the September 14, 1990, hearing that he was entitled to a stay as a matter of law.

It has long been recognized that a court should first decide questions of law that may be dispositive of the issues before the court. This procedure is intended to expedite trials and to narrow or simplify the issues to be tried. (88 C.J.S. Trial §17(2) (1955).) This philosophy is acknowledged in the sections of the Illinois Code of Civil Procedure which provide for disposition of cases by motions to dismiss where no factual questions are at issue and by summary judgment. Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 1005.

As the trial judge in the case at bar recognized, logic and efficiency dictated that he decide potentially determinative issues of law before considering factual questions raised by the parties. The course followed by the trial court in the instant case was both appropriate and the recommended method for proceeding in a case which raises both legal and factual issues. Consequently, the trial court’s order will not be reversed or set aside on this basis.

Plaintiff asserts in his brief that the trial court erred in failing to hold an evidentiary hearing on his motion for a stay. This argument is clearly without merit. Rather than failing to hold an evidentiary hearing, the trial court specifically indicated that an evidentiary hearing was required before it could be determined whether plaintiff was entitled to a stay of the arbitrators’ award. The court stated on the record that an evidentiary hearing was necessary and was to be scheduled and that plaintiff would then be able to present his evidence in favor of his factual allegations that the arbitrators acted under a conflict of interest.

As recognized by the plaintiff in his brief, all the court had before it on October 15, 1990, was the plaintiff’s verified complaint with attached exhibits, the defendants’ verified answer, and the briefs submitted by the parties. The court acknowledged that because the verified answer of the defendants denied or controverted many of the factual allegations contained in the complaint, the pleadings presented genuine issues of material fact which could not be resolved without an evidentiary hearing.

Thus, contrary to the plaintiff’s argument, the trial judge did not fail to hold an evidentiary hearing, but merely postponed the evidentiary hearing until he had considered and decided the potentially dis-positive legal question raised by the plaintiff. We hold that this procedure was not improper or prejudicial to the plaintiff’s interests.

We next address plaintiff’s claim that the authority relied upon by the trial court in entering its interlocutory order applies exclusively to umpires and is inapplicable to arbitrators.

The trial court premised its decision that plaintiff was not entitled to a stay as a matter of law upon the reasoning employed by the Illinois Supreme Court in Strong v. International Building Loan & Investment Union (1899), 183 Ill. 97, 55 N.E. 675, where the Illinois Supreme Court held that when an attorney acts, with the consent of both litigants, in the character of an umpire for the determination of their differences, there is no conflict or inconsistency in such employment. Strong, 183 Ill. at 102-03, 55 N.E. at 677.

An arbitrator is a private, disinterested person, chosen by the parties to a disputed question, for the purpose of hearing their contention and giving judgment between them; to whose decision (award) the litigants submit themselves either voluntarily, or, in some cases, compulsorily. (Black’s Law Dictionary 96 (5th ed. 1979).) An umpire is defined as a third party selected to arbitrate a labor dispute, or one clothed with authority to act alone in rendering a decision where arbitrators have disagreed. When matters in dispute are submitted to two or more arbitrators, and they do not agree in their decision, it is usual for another person to be called in as “umpire,” to whose sole judgment it is then referred. An umpire, strictly speaking, makes his award independently of that of the arbitrators. (Black’s Law Dictionary 1365 (5th ed. 1979).) An umpire acts in the nature of a sole arbitrator and is obligated to hear and determine the entire matter in controversy. See Ingraham v. Whitmore (1874), 75 Ill. 24, 30.

The court in the Strong case recognized that where litigants submit their dispute to an attorney for his or her determination of the issues and rights involved, that attorney acts in the character of an umpire or arbitrator. In siich a situation, that attorney is acting as the impartial fact finder and decision maker over the matters in controversy and is not acting as counsel or advocate of any of the litigants. Because an arbitrator or umpire acts as a disinterested decision maker and does not act as an advocate for any of the individual litigants, it cannot be said that he or she represents conflicting interests. An attorney who acts as arbitrator traditionally does so with the consent of the parties to the controversy. The functions and characteristics of arbitrators are virtually identical to those of umpires. Ingraham, 75 Ill. at 30.

The reasoning employed by the Strong court clearly applies to arbitrators as well as to umpires where the parties have voluntarily chosen the arbitrators and invested in those persons the authority to decide the matters in controversy. Consequently, we find unpersuasive plaintiff’s claim that the decision in Strong does not apply to arbitrators.

Plaintiff also asserts that even if the holding in Strong is applicable to arbitrators, it is not controlling under the facts and circumstances of the instant case. In support of this assertion, plaintiff argues that an inherent conflict of interest arises where, as here, attorneys have represented multiple parties with adverse interests and subsequently assumed the role of arbitrators to decide the same matter in controversy.

The defendants have denied that the arbitrators’ actions can be characterized in the manner set forth by the plaintiff. Rather, the defendants state that the arbitrators in the case at bar never represented any of the individual parties as an adversary against any of the other parties. The defendants acknowledge that the arbitrators had represented the parties individually and as a group, but state that this representation involved unrelated matters. Defendants strenuously argue that the arbitrators did not represent any of the individual parties during the arbitration proceeding and had not acted as counsel or advocate for any party in particular. Thus, the defendants argue, the arbitrators were not required to take views in opposition to those of any of the individual parties to the dispute. In addition, the defendants argue that the arbitrators had no personal interest in the outcome of the proceedings.

The record indicates that in the arbitration agreement and during the arbitration proceedings the arbitrators fully disclosed their relationships with the parties in accordance with Canon IIA of the Code of Ethics for Arbitrators in Commercial Disputes (Canon IIA, Code of Ethics for Arbitrators in Commercial Disputes, reprinted in R. Gorlin, Codes of Professional Responsibility (1986)) and in accordance with section 19 of the American Arbitration Association’s Commercial Arbitration Rules (Com. Arb. Rules, App. VII, §19 (Am. Arb. A.), reprinted in G. Wilner, Domke on Comm. Arbitration, Appendix VII (rev. ed. 1990)).

The record also reveals that after such disclosures had been made each of the parties specifically agreed to proceed with the arbitration and to have their dispute resolved by two arbitrators, Leighton and Balsón. Each of the parties specifically stated in the agreement and on the record of the arbitration proceedings that he had waived any right to assert privilege or a conflict of interest which might have existed as a result of the legal representation of any or all of the parties by Leighton and Balsón. All of the parties stated on the record that they voluntarily chose to proceed with the arbitration without any objection. The parties also stated that they understood that they each had the right to have an attorney present to represent their individual interests during the arbitration but chose to proceed without counsel.

Based upon this record, we hold that the trial court properly relied upon the decision in Strong and found that there was insufficient evidence to indicate that the arbitrators would necessarily favor the interests of one party over those of another and should, therefore, have been disqualified as a matter of law.

Plaintiff next asserts that he was entitled to a stay of the arbitration award.

Section 12 of the Illinois Arbitration Act provides, in pertinent part:

“Vacating an award, (a) Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud, or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers.” Ill. Rev. Stat. 1989, ch. 10, par. 112(a).

Plaintiff contends that he has established that he was entitled to a stay of the arbitration award because he was fraudulently induced to enter into the arbitration agreement and because the arbitrators acted with partiality and bias in favor of defendants.

In support of these contentions, plaintiff asserts that he only signed the arbitration agreement upon the advice of arbitrator Leighton and after defendant Russell signed an acknowledgement that plaintiff was the sole owner of Stealth Industries, Inc. Plaintiff also asserts that he was compelled to sign the arbitration agreement based upon the promises of the arbitrators that Christopher would then return to work at Stealth Industries and Russell would then assist in unfreezing the corporation’s bank accounts. Plaintiff asserts, further that the partiality and bias of the arbitrators was evident from the fact that they engaged in ex parte communications with the parties and “ignored” the acknowledgements signed by Russell and other evidence indicating that plaintiff was the sole owner of Stealth Industries. Plaintiff asserts further that the arbitrators had a direct and definite interest in the outcome of the arbitration proceedings. Finally, plaintiff asserts that the arbitrators exceeded their powers by eliminating the third arbitrator, by transferring ownership of the corporation, and by determining the assets of the corporation.

Plaintiff seems to argue that a stay should have been granted on the basis of his allegations alone and that the filing of his complaint was adequate to trigger the grant of a stay. This is clearly not the case. Rather, the allegations in plaintiff’s complaint must be proved by clear and convincing evidence. Ronwin v. Piper, Jaffray & Hopwood, Inc. (1983), 113 Ill. App. 3d 687, 692-93, 447 N.E.2d 954, 958; Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046, 1050-51, 392 N.E.2d 198, 203.

At the time plaintiff filed his notice of appeal, there was no evidence before the trial court to support plaintiff’s contentions. The trial court had not yet had the opportunity to hold an evidentiary hearing on the allegations raised in the complaint. The court had not determined the factual question of whether plaintiff was entitled to a stay of the arbitrators’ award. All the trial court had decided was whether plaintiff was entitled to a stay of the award as a matter of law. The trial judge fully recognized and stated on the record that an evidentiary hearing was required before he could decide whether plaintiff had established that he was entitled to a stay. At present, the record contains only plaintiff’s allegations as set forth above. There is no evidence in support of these allegations, and there is no ruling by the trial court as to whether plaintiff had proved his allegations. Consequently, the record is wholly insufficient for this court to consider plaintiff’s assertions and plaintiff’s appeal on this issue is premature. See In re Marriage of Verdung (1989), 126 Ill. 2d 542, 553, 535 N.E.2d 818, 823.

We next consider plaintiff’s assertion that the trial court erred in finding that the appointed arbitrators need not have been disqualified, as a matter of law, based upon conflicts of interest as a result of their legal representation of the parties.

The majority of plaintiff’s argument on this issue concerns his claims that the arbitrators in the instant case should have been disqualified as a matter of law. These claims have been discussed above, and we deem it unnecessary to repeat that discussion here.

The thrust of the remainder of plaintiff’s argument on this issue centers around his claim that the alleged conflict of interest could not, as a matter of law, be waived by the parties because any such waiver would be unintelligent and uninformed. This argument is without merit.

The only case cited by plaintiff in support of this contention is Klemm v. Superior Court (1977), 75 Cal. App. 3d 893, 142 Cal. Rptr. 509, which held that as a matter of law a purported consent of dual representation of litigants with adverse interests at a contested hearing would be neither intelligent nor informed. This case is clearly distinguishable from the case at bar. The instant case does not involve a situation of dual representation of adverse litigants. Rather, it involves attorneys who had represented the parties to the dispute in unrelated matters and fully disclosed these relationships prior to their appointment as impartial arbitrators. All of the parties to the dispute stated on the record that they understood the nature of these relationships and chose to waive any confidentiality or conflict of interest claims and to proceed with the arbitration without objection.

Consequently, the Klemm decision is not controlling here, and plaintiff has offered no citations to authority in support of his claim. Moreover, the trial court had entered no ruling on the validity of the waiver of the confidentiality or conflict of interest claims because the court had not yet had the opportunity to hold an evidentiary hearing prior to the filing of plaintiff’s notice of appeal. As a result, this court has not been furnished with an adequate record to enable it to address plaintiff’s claims raised in this issue.

Finally, we address plaintiff’s contention that the award entered by the arbitrators should be set aside. Plaintiff attempts to argue that the award of the arbitrators was erroneous on its face and must be set aside as a matter of law.

This argument could not properly be raised on appeal, and this court, therefore, is precluded from considering the claims asserted by plaintiff.

As previously indicated, the trial court issued a ruling only as to the disqualification of the arbitrators as a matter of law based upon their prior relationships with the parties to the dispute. The plaintiff took an immediate interlocutory appeal from that ruling before the court had an opportunity to hold an evidentiary hearing or to rule on the substance of the factual assertions contained in plaintiff’s complaint. Consequently, the trial court never decided or even had an opportunity to address the claims made by plaintiff in this issue.

As a result, this court has not been furnished with an adequate record to enable it to address plaintiff’s claims raised in this issue. Moreover, this issue is not properly before this court because plaintiff has appealed only the trial court’s order of October 15, 1990, which did not include any ruling on the arguments made by plaintiff in this issue. See E.J. De Paoli Co. v. Novus, Inc. (1987), 156 Ill. App. 3d 796, 798, 510 N.E.2d 59, 60.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed, and the cause is remanded to the trial court for further proceedings.

Affirmed and remanded.

McNAMARA and EGAN, JJ., concur.