author: JUSTICE EGAN

text:
    KENNEDY, RYAN, MONIGAL AND ASSOCIATES, INC., Plaintiff-Appel-lee, v. IRVIN B. WATKINS, Defendant-Appellant.
    First District (6th Division)
    No. 1 — 91—3618
    Opinion filed January 29, 1993.

      James D. Montgomery and Jean M. Templeton, both of James D. Montgomery & Associates, of Chicago, for appellant.
    Richard E. Steck, of Steck & Spataro, of Chicago, for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant, Dr. Irvin B. Watkins (Watkins), appeals from an order granting summary judgment to the plaintiff, Kennedy, Ryan, Monigal & Associates, Inc. (Kennedy), a real estate broker, on a complaint filed by Kennedy against Watkins for commissions allegedly due pursuant to a written agreement.

The complaint was in two counts. Count I alleged that Kennedy procured the tenant that rented Watkins’ property. Count II alleged that Kennedy was entitled to a commission under an exclusive leasing agreement even if it did not procure the tenant. The judge entered summary judgment for the plaintiff on both counts. The defendant maintains that he, rather than the plaintiff, was entitled to summary judgment on count I or, alternatively, that questions of fact exist that may not be decided on summary judgment. He also maintains that the judge misconstrued the agreement between the parties as a matter of law and that he, rather than the plaintiff, was entitled to summary judgment on count II also.

Watkins is a practicing dentist who owns and has owned several buildings and properties in Chicago. He bought and sold at least one building before this litigation, and hired two real estate brokerage firms to sell another building. Both of these listing agreements expired before the property was sold. His dental practice is on the second floor of his building located at 1411 East 53rd Street (1411 Building). This building was formerly a one-story restaurant that Watkins modified in 1988 to have two floors and a basement.

Watkins and Vernon Monigal, a vice-president of Kennedy, discussed the building modification and the possibility of the first floor becoming vacant. Watkins and Monigal had an ongoing business relationship involving real estate since 1980, and Monigal gave Watkins advice regarding the purchase of the 1411 Building. Kennedy, however, was never employed officially by Watkins before the contract at issue in this case.

Kennedy is a Century 21 real estate brokerage firm. Watkins approached Kennedy about listing the first floor of the 1411 Building for lease. Watkins initially discussed the listing with Monigal but never discussed the specific terms of the agreement. On June 23, 1988, Monigal gave Watkins a document titled “Exclusive Leasing Agreement” that both men signed. Watkins read the agreement before he signed it.

The agreement was prepared by Kennedy on its letterhead. It is dated June 23,1988, and provides in part as follows:

“In consideration of the following agreements and of your efforts to procure tenants for *** 1411 East 53rd Street, Chicago, Illinois 60615, First floor only *** you are hereby employed as our exclusive agent with sole authority to advertise and rent said property.
The agency hereby created shall continue to be in force for a period of 180 days from the date hereof.
***
The Owner agrees to pay the Agent for services rendered in procuring tenants for subject property, whether the property is rented by the Agent, or by or through any other person, during the period of this agreement.”

Pursuant to this agreement, Kennedy placed a sign with its name and phone number in the window of the 1411 Building. Kennedy sales associate Rosalind Sallee (Sallee) testified in her deposition that she showed the building to a prospective tenant who wanted to put a beauty salon in the building; she also directed other people to look at the building and called Dunkin’ Donuts to inform it that the building was for rent. She called Dunkin’ Donuts because “off the top of [her] head [she] realized that there was not a Dunkin’ Donuts in that area” and she believed the “high traffic” location of the 1411 Building was an excellent location for a Dunkin’ Donuts. She made this call sometime between June 23 and July 22, 1988, but could not remember the exact date.

She first spoke with Jerry Ulrich (Ulrich), Dunkin’ Donuts’ real estate department manager. She directed him to look at the property. Ulrich told her he drove past the 1411 Building. Ulrich was excited about the idea of opening a Dunkin’ Donuts in Hyde Park; he said the 1411 Building would be a good location and directed her to Andy Davis (Davis), who owned Dunkin’ Donuts’ “territorial rights” for that area of Chicago. Sallee and Watkins both testified that they generally understood these rights to entitle Davis to some of the franchise fee from any new Dunkin’ Donuts stores in his area. Sallee called Davis regarding the 1411 Building and directed him to look at it. She never personally took him to the building or met -with him regarding the building.

Davis did see the property and subsequently told Sallee that he was not interested in opening a store there due to a lack of parking. Sallee gave Monigal a “notice-of-showing slip” dated August 1, 1988, explaining that Davis had seen the property and that “he was not interested because of parking that is not available.” The notice also stated that “[t]oday we submitted [the property] to: Atty. Andy Davis (Dunkin’ Donuts).” Sallee gave one copy of this notice to Monigal and mailed the original to Watkins. Sallee explained that, based on the date of the notice, Davis saw the property August 1, 1988. Sallee was informed by the construction workers renovating the 1411 Building that “Dunkin’ Donuts was here yesterday.”

Sallee produced a note dated August 26, 1988, which indicated that she had spoken to Ulrich and that he had told her that he had met with Watkins about obtaining a Dunkin’ Donuts franchise at the 1411 Building. She testified that “we had been — between the three of us, Andy [Davis], Jerry [Ulrich] and myself, we had been keeping in contact regarding the property at 1411 East 53rd Street because it was my concern that we exposed Dr. Watkins to Dunkin’ Donuts.” Sallee also spoke directly with Watkins about Davis and Dunkin’ Donuts on at least two occasions. Monigal once called her into his office while he was on the phone with Watkins and asked her to take the phone and explain to Watkins her actions regarding Davis. She told Watkins that Davis saw the property and that he was not interested due to the lack of parking.

Monigal testified that the only information he had linking Kennedy to Dunkin’ Donuts as the tenant at the 1411 Building was the copy of the “notice-of-showing” slip he received and Sallee’s statements that she was “working with Dunkin’ Donuts as a prospective tenant.”

In his deposition, Watkins testified that Kennedy sent him two memos stating that sales staff showed the 1411 Building to possible tenants. “[Sjometime in August” he received the notice-of-showing slip informing him that Davis had seen the property; he first testified that he remembered that the name Dunkin’ Donuts was on the slip, but later said he did not remember if Dunkin’ Donuts was listed on the notice. He met Sallee at a meeting in Monigal’s office sometime in 1989.

Watkins testified that he first had the idea of placing a Dunkin’ Donuts in the 1411 Building while walking his dog through an alley near his home, one block from a Dunkin’ Donuts store. This occurred some time before he received the notice from Kennedy and in fact took place before he signed the listing agreement. In June 1988 Watkins “went to the library and got some addresses of several donut shops, and *** sent off for information from Massachusetts, the home office of the Dunkin’ Donuts.” After signing the listing agreement, Watkins “did a lot of hands-on type activities” such as calling people whom he considered prospective tenants.

Watkins explained that he first learned about Davis and territorial rights after he received a letter from Monigal on March 7, 1989. Watkins said that the letter, which he characterized as an accusation on the part of Monigal against him, convinced him to call Larry Pe-trus (Petrus) at the Park Ridge, Illinois, office of Dunkin’ Donuts. Watkins testified that all of his negotiations with Dunkin’ Donuts were with Petrus; the August 1, 1988, notice from Sallee that she had shown the property to Davis made him curious and caused him to call Petrus.

Petrus gave Watkins the franchise agreement and discussed it with him several times, although Watkins stated that the agreement itself was nonnegotiable. Petrus also explained territorial rights to Watkins. Watkins’ business partner, a college friend named Wanda Young Wilson (Wilson), accompanied Watkins to Petrus’ office. Watkins met Ulrich at Petrus’ office; he thought Ulrich saw the property sometime in July. Ulrich also explained generally what Davis’ territorial rights entailed. »A letter dated August 4, 1988, from Ulrich to Wilson indicates that Ulrich previously saw the property and notes that Ulrich gave Petrus a franchise questionnaire from Wilson and Watkins. In this letter, Ulrich states that “[ijt was a pleasure meeting with you and Dr. Watkins on Tuesday.” The Tuesday before August 4, 1988, was August 2.

Watkins testified that in December 1988 or January 1989 he formed a corporation with Wilson. They each own 50% of the stock in the corporation, 2W, Inc. 2W, Inc., executed a lease dated December 1, 1988, with Watkins for the first floor of the 1411 Building. The listed purpose of the lease is to operate a Dunkin’ Donuts franchise. The lessor is Watkins, the lessee is 2W, Inc., and the lease is signed by Watkins, as lessor, and Wilson as president of 2W, Inc., as lessee. December 1 falls within the 180-day period of the listing agreement. The lease runs from March 1, 1989, to February 28, 1999, at a monthly rent of $2,169. The lease, according to Watkins, was “back dated” December 1 to help him obtain financing. The lease did not provide for a security deposit. In Watkins’ mind it was not truly a lease. Watkins does receive the listed monthly rent from the lease, however, and a rider to the lease indicates a security deposit of $5,000. In an affidavit, Watkins referred to 2W, Inc., as “the tenant [to whom] I rented the premises.”

On January 20, 1989, Wilson and Watkins executed a franchise agreement with Dunkin’ Donuts. Each paid half of the necessary investment, which included a $30,000 franchise fee, $20,000 more than the standard $10,000 fee listed on the January 20, 1989, agreement. Watkins explained that he was not aware when he executed the agreement that the usual fee was $10,000 and that he believed Davis received some of the franchise fee as compensation for Davis’ territorial rights.

Kennedy demanded a commission for the lease of the 1411 Building and ultimately filed the complaint which sought $7,848.94 in commissions based on the actual rent amount of the lease.

There are three alternative ways a real estate broker may become entitled to a commission. (See Real Estate Group, Inc. v. Sargent (N.D. Ill. 1988), 684 F. Supp. 1445 (applying Illinois law and listing all three).) First, the property owner must pay a commission to the broker if the broker presents a “ready, willing and able” lessee or buyer who conforms to the owner’s requirements. (Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 418 N.E.2d 444.) Second, a broker is entitled to a commission if he has an exclusive leasing or sale agreement with the owner and the property is leased or sold by anyone during the life of the agreement. (Wozniak v. Siegle (1922), 226 Ill. App. 619; see also 12 Am. Jur. 2d Brokers §226 (1964).) Third, an owner owes a commission to a broker when the broker is the “procuring cause” of a lease or sale. (Romanek-Golub & Co. v. Anvan Hotel Corp. (1988), 168 Ill. App. 3d 1031, 522 N.E.2d 1341.) The plaintiff seeks judgment in count II under the second alternative, and in count I the plaintiff seeks judgment under the third alternative. We have concluded that the judge properly granted summary judgment on count II.

Neither party disputes the validity of the listing agreement; the only dispute centers around the construction of that agreement. Where only the construction of a contract is at issue, the legal effect and interpretation of the contract is a question of law, and summary judgment is proper. Continental Assurance Co. v. Commonwealth Edison Co. (1990), 194 Ill. App. 3d 1085, 551 N.E.2d 1054.

In interpreting the contract, the court must look to the intent of the parties as evidenced by the contract “as a whole, not merely by reference to particular words or isolated phrases.” (La Throp v. Bell Federal Savings & Loan Association (1977), 68 Ill. 2d 375, 381, 370 N.E.2d 188, 191.) When the terms of a contract are clear and certain, the contract itself is the only proper evidence of the parties’ intent, and the court may not infer that intent which is contrary to the contract’s obvious meaning. La Throp, 68 Ill. 2d at 384; Brown v. Miller (1977), 45 Ill. App. 3d 970, 360 N.E.2d 585.

Both parties agree that the issue in this case is whether the agreement is an exclusive agency agreement or an exclusive leasing agreement. The distinction between the two was noted by the supreme court in Flynn v. La Salle National Bank (1956), 9 Ill. 2d 129, 139, 137 N.E.2d 71, 76:

“[A] distinction has been drawn between an ‘exclusive agency’ to sell realty and an ‘exclusive right’ to sell such property. In the former situation the owner is not precluded from selling the property himself, but is only barred from appointing another agent, while in the latter case the owner remains liable for the commission even if he effects the sale himself. Wozniak v. Siegle [1922], 226 Ill. App. 619; 5 Ill. Law and Practice 522; Restatement of the Law, Agency, sec. 449.”

Wozniak v. Siegle, the case cited in Flynn v. La Salle National Bank, is the case upon which Watkins relies. He maintains that the facts of this case are controlled by the facts of Wozniak, in which the appellate court held as a matter of law that the contract between the broker and the seller of the property was an exclusive agency agreement rather than an exclusive sale agreement.

The agreement in Wozniak provided that the plaintiff broker was an “exclusive agent” of the defendant owner and that the broker would receive a commission if the property was sold during the term of the agreement “either through [the plaintiff] or any other person.” (Wozniak, 226 Ill. App. at 619-20.) The owner ultimately sold the property himself with no assistance from the broker and refused to pay a commission. The appellate court held that the agreement created only an exclusive agency, explaining that under agency law the phrases “exclusive agent” and “any other person” could be read consistently only if the owner himself, as the principal, was not included in the phrase “any other person,” and thus did not give up the right of a principal to act for himself. The court noted that an owner could relinquish this right through words or conduct. Wozniak, 226 Ill. App. at 622.

Several appellate court cases have discussed the distinction between an exclusive agency agreement and an exclusive sale or lease agreement. (See Hammel v. Ruby (1985), 139 Ill. App. 3d 241, 487 N.E.2d 409; Bolger v. Danley Lumber Co. (1979), 77 Ill. App. 3d 207, 395 N.E.2d 1066; Brown v. Miller (1977), 45 Ill. App. 3d 970, 360 N.E.2d 585; see also Bass v. Banga (N.D. Ill. 1987), 656 F. Supp. 312 aff’d (7th Cir. 1988), 857 F.2d 1476 (Table).) In each of the appellate court cases and in the Federal case, the agreement expressly provided that the commission would be due the broker if the property was sold by the owner of the property. Consequently, those cases do not assist the plaintiff’s position in the case before us. On the other hand, none of those cases held that an agreement will be construed to be an exclusive agency agreement unless the agreement expressly provides that a commission is due if the owner of the property effects the sale.

We believe that the agreement in the case before us is significantly factually dissimilar to the agreement in Wozniak and that the judge properly construed the agreement to be an exclusive agreement to lease the property. To begin, the contract is captioned “Exclusive Leasing Agreement.” We infer that the agreement in Wozniak was not entitled an “Exclusive Sales Agreement.” We recognize that the caption of an instrument does not necessarily determine its meaning. (Bonde v. Weber (1955), 6 Ill. 2d 365, 128 N.E.2d 883.) But we have found no case which says that the caption or title of an instrument is to be ignored in the construction of the instrument. We believe that the caption, “Exclusive Leasing Agreement,” should be considered along with all the other language of the agreement in determining what the parties intended. The agreement also provided that the plaintiff was “hereby employed as our exclusive agent with sole authority to advertise and rent said property.” (Emphasis added.) Similar language was not present in the agreement in Wozniak. We judge that the caption of the agreement and language giving the plaintiff “sole authority to advertise and rent” the property manifested an intent on the part of Watkins to surrender his own right to lease the property. For that reason we hold that the judge properly granted summary judgment in favor of the plaintiff on count II of the complaint. In view of our holding it is unnecessary to determine whether the judge properly entered summary judgment on count I.

The judgment of the circuit court is affirmed.

Judgment affirmed.

McNAMARA, P.J., and RAKOWSKI, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    HELEN A. DICK, Plaintiff-Appellant, v. PEOPLES MID-ILLINOIS CORPORATION et al., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0429
    Opinion filed March 4, 1993.

      Helen A. Dick, of Moline, appellant pro se.

    John E. Fick, of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Helen A. Dick is before this court for the fifth time. (See Peoples Bank v. Dick (1985), 135 Ill. App. 3d 1170, 496 N.E.2d 1279 (unpublished order under Supreme Court Rule 23) (Dick I); Dick v. Dick (1988), 169 Ill. App. 3d 1175, 540 N.E.2d 583 (unpublished order under Supreme Court Rule 23) (Dick II); In re Estate of Dick (1989), 187 Ill. App. 3d 77, 543 N.E.2d 339 (Dick III); Dick v. Peoples Mid-Illinois Corp. (1990), 195 Ill. App. 3d 654, 552 N.E.2d 385 (Dick IV). In Dick IV, this court held plaintiff’s complaint contained some allegations which would support a new action and thus were not barred by the principles of res judicata. Accordingly, this case was remanded to the trial court. (Dick, 195 Ill. App. 3d at 660, 552 N.E.2d at 389.) Upon remand, the trial court granted defendant’s motion to dismiss plaintiff’s amended complaint with prejudice. Plaintiff now appeals that dismissal and we affirm.

The long background of this case was set forth in Dick TV and will only be repeated here as necessary for the resolution of the issues presented. Basically, each of plaintiff’s appeals has attempted to reliti-gate matters relating to the estates of George F. Dick, Jr. (George, Jr.), plaintiff’s deceased adoptive father, and that of Althea M. Dick (Althea), plaintiff’s deceased adoptive mother. George, Jr., and Althea had three natural children, George F. Dick III (George III), Helen Dick (who is a different person than plaintiff Helen A. Dick), and Eleanor D. Lyon; in addition, they adopted plaintiff Helen A. Dick, Eleanor’s daughter and their granddaughter.

George, Jr., an attorney, died in 1955. In his will, he left the bulk of his property to his wife, Althea, in the form of a life estate. George, Jr.’s will also left 80 shares of stock in Peoples Bank of Bloomington to his son, George III, an attorney, to be assigned and transferred to him after Althea’s death, as and for his individual property. However, in 1959, prior to Althea’s death, George III persuaded Althea to transfer the 80 shares of stock to him. The stock has since split, thereby greatly increasing its value. George, Jr.’s will also created trusts for the remaining interests naming plaintiff, his adopted daughter, and Eleanor Dick Lyon and Helen Dick, his two natural daughters, as beneficiaries; the trust was to terminate upon daughter Eleanor’s death, the remainder, with adjustments for withdrawals, to be divided one-third to Helen Dick, one-third to Helen A. Dick, and one-third to George III. George III was trustee of this trust and served in such capacity until 1978 when he resigned. Defendant, the Peoples Bank (bank), formerly known as Peoples Bank of Blooming-ton, became successor trustee.

Althea died testate in 1976. Her will gave her personal belongings to her natural daughter, Helen. The remainder of her estate was divided into thirds, to be distributed to Helen, Eleanor, and plaintiff. Helen’s share was given outright while Eleanor’s and plaintiff’s shares were put into trust. George III was named executor of Althea’s will and the bank was trustee of this trust.

The final report of Althea’s estate was approved and George III was discharged as executor in 1979. A letter was filed with the court prior to this discharge stating that plaintiff and Eleanor objected to George Ill’s final report and asked the court not to discharge him from his duties as executor. In February 1979, Eleanor filed a petition to vacate the order of discharge but later withdrew that petition.

In 1982, the bank filed an action as successor trustee of the trust created by the will of George, Jr., and as trustee of the trusts created by the will of Althea, for a construction of these trusts and the propriety of actions taken by George III. It was determined that the transfer of the 80 shares of stock to George III prior to Althea’s death violated the provisions of George, Jr.’s will. George III was ordered to prepare an accounting of all shares from the date of that transfer through the date of Althea’s death. However, before that accounting was done, the bank and George III reached a settlement agreement. Plaintiff was a named defendant in this action and participated by filing a counterclaim against George III for breach of fiduciary duties. The trial court dismissed plaintiff’s counterclaim and plaintiff appealed. Neither George III nor the bank appealed the orders entered in the 1982 action. One of the issues plaintiff raised in Dick I was the impropriety of the settlement between the bank and George III, an issue she had failed to raise in the trial court. This court held plaintiff was barred from raising any alleged impropriety in the settlement when she had not raised the issue in the trial court. This court affirmed the dismissal of the counterclaim. Peoples Bank v. Dick (1985), 135 Ill. App. 3d 1170, 496 N.E.2d 1279 (unpublished order under Supreme Court Rule 23).

In 1986, plaintiff began filing her various complaints relating to this litigation. Plaintiff has filed complaints against George III for allegedly fraudulent acts he took while trustee of the trust created under George, Jr.’s will and as executor of Althea’s will, has attempted to reopen Althea’s estate, and then her father’s estate, and has most recently begun actions against the bank.

The complaint at issue in this appeal was filed in February 1991 after remand by this court in Dick IV. Plaintiff amended her complaint in August 1991 and it is divided into two counts. Peoples Mid-Illinois Corporation (holding company) is a holding company which was formed in 1971. Both the holding company and the bank were named as defendants, individually, and as trustee under the trusts created by the wills of George, Jr., and Althea.

Count I alleged defendants breached certain fiduciary duties owed to plaintiff as the beneficiary of the trusts created under George, Jr.’s and Althea’s wills. Plaintiff alleged the bank acquired certain duties owed to her when it accepted the responsibility as successor trustee of the trust created under the will of George, Jr., and as trustee of the trust created by the will of Althea. Plaintiff alleged these duties included the duty to examine the wills of George, Jr., and Althea, to determine what property constituted the corpus of those trusts and to determine whether George III properly delivered all of that property to the bank as successor trustee and trustee.

Plaintiff further alleged the bank breached these duties by retaining shares of the holding company as an investment of the trusts. Plaintiff alleged the interest of the holding company in accumulating profits instead of paying cash dividends is in conflict with all persons having a beneficial interest in the shares of the holding company. Plaintiff concluded the trusts have suffered great losses and the holding company has benefitted as a result of the breach of fiduciary duty by the bank.

Plaintiff further alleged the bank breached a duty of undivided loyalty to her and the duty to manage and care for the trust estates in the same manner that any prudent man would manage and care for his property by allowing George III to vote holding company shares which were property of the estate of George, Jr., and allowing directors of the holding company to receive year-end bonuses and payments for attending meetings of the board of directors of the holding company.

Count II of plaintiff’s amended complaint alleged defendant bank breached its fiduciary duty by failing to inform her of facts relating to actions taken by George III. Two of these acts included allowing George III, as trustee of the estate of George, Jr., to vote for stock dividends and splits of holding company stock, thereby increasing the value of those stocks while he was chairman of the board of directors of the bank.

Plaintiff next alleged defendant bank falsely represented to her that it had “lost” count I of its 1982 complaint which sought a determination of whether the transfer of the 80 shares from Althea to George III during Althea’s lifetime was proper and whether George III should have received 80 shares (rather than the 2,400 received because of the subsequent stock splits) of stock upon Althea’s death. Plaintiff alleged that under the terms of the settlement agreement George III paid $120,000, of which $60,000 was to be applied to the trust established under George, Jr.’s will, $20,000 was to be applied to Althea’s trust for Eleanor, $20,000 was to be applied to Althea’s trust for Helen A. Dick, and $20,000 was to be applied to the bank’s attorney fees. Plaintiff alleged the settlement agreement between George III and defendant was a representation that defendant had “lost” its count I of the 1982 action. She alleged that based on the representations of defendant, she believed defendant had “lost” its count I because it filed the cause of action in the wrong estate. Plaintiff, therefore, instead of attempting to set aside the settlement agreement between defendant bank and George III, filed a counterclaim against George III and tried to open Althea’s estate to recover profits allegedly obtained from George III. Plaintiff alleged defendant’s failure to inform her of the facts surrounding George Ill’s actions and the settlement agreement constituted a breach of fiduciary duty by the bank. Finally, plaintiff alleged defendants failed to serve her, as successor trustee, with undivided loyalty.

In her prayer for relief as to count I, plaintiff sought an order setting aside the purchase of shares of stock by the holding company from Althea’s estate. Plaintiff further sought an order which found the transfer of stock from Althea to George III was improper and an order compelling the holding company to return certain shares of stock to trusts established by the wills of George, Jr., and Althea. Finally, plaintiff sought various relief against the bank, its officers and directors, and sought dissolution of the holding company.

As to count II, plaintiff sought an accounting for all management fees taken by the bank and George III, as successor trustee and trustee. Plaintiff wished to recover her litigation costs as to Althea’s estate and the related appeals from 1984-88, and punitive damages against defendants for breach of fiduciary duty.

In September 1991, defendants filed their motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (111. Rev. Stat. 1989, ch. 110, par. 2 — 619). Following a hearing in January 1992, defendants’ motion was granted with prejudice. The trial court first found plaintiff was barred from relitigating issues regarding any wrongdoing of George III or the bank in its capacity as successor trustee and trustee of the trusts created under the wills of George, Jr., and Althea. The trial court further held plaintiff had no standing to challenge defendants’ banking decisions with regard to forming the holding company and decisions not to pay stockholders dividends with profits from stock but instead to retain that money for other purposes. The trial court concluded the motion to dismiss should be granted because all issues raised by plaintiff were either barred by res judicata, the statute of limitations, or plaintiff’s lack of standing. Plaintiff timely filed her notice of appeal.

Whenever the granting of a motion to dismiss is reviewed, all well-pleaded facts alleged in the complaint are taken as true, and the test for determining the propriety of granting the motion to dismiss is whether it appears no set of facts may be proved so as to entitle plaintiff to recover from defendant. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505-06, 485 N.E.2d 372, 374.) Any allegations which are merely conclusions, unsupported by allegations of specific facts, are not, however, admitted. Toys “R” Us, Inc. v. Adelman (1991), 215 Ill. App. 3d 561, 564, 574 N.E.2d 1328, 1330.

Section 2 — 619(aX4) of the Code allows for the filing of a motion for involuntary dismissal based on defects or defenses enumerated in the statute. A defendant may seek an involuntary dismissal if the claim is barred by a prior judgment on a theory of collateral estoppel or res judicata. (HI. Rev. Stat. 1989, ch. 110, par. 2— 619(aX4).) Whether to grant a motion to dismiss is within the sound discretion of the trial court and its decision will not be disturbed on appeal absent an abuse of that discretion. City of Carbondale v. City of Marion (1991), 210 Ill. App. 3d 870, 873, 569 N.E.2d 290, 292.

In Dick IV, this court held:

“[W]e also find plaintiff is barred from relitigating any issue regarding (1) the impropriety of the 1959 transfer of shares to George III; (2) the impropriety of the settlement between the Bank and George III; (3) the impropriety of George Ill’s use of the Bank shares as collateral for personal loans; (4) any impropriety in actions of the Bank and holding company in collecting bank shares plaintiff alleges belong to George Jr.’s estate; and (5) any impropriety in the actions of the Bank in allowing bank shares owned by the estate of George Jr. and those owned by George III to be commingled. *** In portions of the amended complaint, petitioner is looking to recover against the Bank for violations of its fiduciary duties owed to her as successor trustee. The same evidence will not sustain these claims as sustained the findings in the prior actions.
We conclude plaintiff’s amended complaint, while repetitive in parts and replete with conclusions and irrelevant information, contains some allegations which would support a new action and, thus, these claims are not barred by the principles of res judicata." (Emphasis in original.) Dick, 195 Ill. App. 3d at 659-60, 552 N.E.2d at 389.

Any allegations raised by plaintiff in her amended complaint regarding any issue addressing any of these five things are specifically barred by principles of res judicata and the holding in Dick IV. As we noted in Dick IV, plaintiff was only entitled to her day in court to allege facts relating to a breach of fiduciary duty by the bank as successor trustee. Accordingly, our analysis will only focus on those issues and attempt to glean from plaintiff’s amended complaint whether she has alleged any facts which would support such a cause of action.

A trustee owes a fiduciary duty to the beneficiaries and is obligated to carry out the trust according to its terms and to act with the highest degree of fidelity and utmost good faith. A trustee is under a duty to serve the interest of the beneficiaries with complete loyalty, excluding all self-interest, and is prohibited from dealing with the trust property for his individual benefit. This rule is not, however, without exception. It is well established that a trustee may occupy conflicting positions in handling the trust where the trust instrument contemplates, creates, or sanctions the conflict of interest. The creator of the trust can waive the rule of undivided loyalty by expressly conferring upon the trustee the power to act in a dual capacity, or he can waive the rule by implication where he knowingly places the trustee in a position which might conflict with the interest of the beneficiaries. In re Estate of Halas (1991), 209 Ill. App. 3d 333, 344-45, 568 N.E.2d 170, 178.

Where a conflict of interest is approved or created by the testator, the fiduciary will not be held liable for his conduct unless the fiduciary has acted dishonestly or in bad faith, or has abused his discretion. Further, where the will approves the conflict of interest, the burden of proof remains on the party challenging the fiduciary’s conduct as there is no presumption against the fiduciary despite the divided loyalty. Halas, 209 Ill. App. 3d at 345, 568 N.E.2d at 178.

A successor trustee shall have all the rights, powers and duties, which are granted to or imposed on the predecessor. (111. Rev. Stat. 1989, ch. 17, par. 1684.) If a trustee commits a breach of trust and is thereafter removed as trustee or dies or otherwise ceases to be trustee and a successor trustee is appointed, the latter is not liable for breaches of trust committed by the former. He does not by becoming trustee assume liabilities incurred by his predecessors. He is liable only if he himself is guilty of a violation of duty to the beneficiaries. A successor trustee is, however, liable if he as well as the predecessor is guilty of a violation of duty to the beneficiaries. This is the case (1) where his predecessor improperly purchased a retained property and he continues to retain it; (2) where he neglects to take proper steps to compel his predecessor to turn over trust property to him; or (3) where he neglects to take proper steps to compel his predecessor to redress a breach of trust committed by him. 3 A. Scott, Law of Trusts §223, at 397 (4th ed. 1988).

In count I of plaintiff’s complaint, she alleged the bank breached its fiduciary duty to examine provisions of George, Jr.’s and Althea’s wills to determine what property formed the trusts, examine that property which had been received from George III to see if all property that he ought to have delivered to the bank was delivered, and to compel an accounting from George III and the duty to enforce claims to recover property belonging to said estates. Defendant has properly done all those things which it, as successor trustee, had an obligation to do by pursuing the 1982 action against George III. That action resolved all matters between the bank as successor trustee and any impropriety by George III as trustee of the trust created under the will of George, Jr. Therefore, plaintiff has not alleged any cause of action against the bank as successor trustee for failing to inquire into any improper activities of the predecessor trustee.

Plaintiff also has alleged the bank breached its fiduciary duty by retaining shares of the holding company from George III as an investment for the trust and by allowing George III to vote holding company stock which was property of George, Jr.’s estate. In this case, George, Jr.’s will contemplated and approved the potential conflict of interest of the bank. George, Jr.’s will expressly provides that the trust can hold stock in Peoples Bank of Bloomington as an investment. George, Jr.’s will also expressly provides that George III is to vote any and all stock in Peoples Bank of Bloomington during the life of the trust. Finally, George, Jr.’s will nominated the bank as successor trustee with all the powers and authority given to George III. Thus, the bank cannot have breached any duty owed to plaintiff by retaining stock in the holding company as an investment, or by allowing George III to vote shares of the holding company stock, because both of these acts were expressly provided by George, Jr.’s will.

As to count II of plaintiff’s complaint, she alleged the bank breached its fiduciary duty by failing to inform her of facts regarding the settlement agreement between it and George III, which failure caused her to attempt to recover profits from George III by way of a counterclaim and the reopening of Althea’s estate. Plaintiff further alleged the bank breached its fiduciary duty by failing to file an action against George III for four years from the date of his resignation as trustee, and for failing to ask the court to appoint a different trustee during the pendency of the 1992 action. Finally, plaintiff alleged the bank breached its duty to manage the trust in the same manner that any prudent man would manage and care for his property and its duty of undivided loyalty by failing to inform her of these facts.

The only possible set of facts plaintiff has alleged which could state a cause of action revolve around the bank’s failure to disclose to her the circumstances surrounding the settlement agreement and its effect upon her. As we noted above, plaintiff is absolutely barred from relitigating this issue. The other allegations contained in plaintiff’s complaint regarding any alleged breach of fiduciary duty by the bank are merely conclusions unsupported by any factual basis.

In conclusion, plaintiff has alleged no set of facts which would state a cause of action against the bank for breach of fiduciary duty. The bank as successor trustee took all proper steps toward discovering and correcting any fraudulent acts by George III. Moreover, the bank has not breached any duty owed to plaintiff by retaining holding company stock as an investment or by allowing George III to vote holding company stock because such acts are expressly permitted by George, Jr.’s will and any conflict of interest was specifically considered by George, Jr., in the creation of his will and the trust created trader that will.

Accordingly, the trial court did not abuse its discretion when granting with prejudice defendants’ motion to dismiss.

Affirmed.

STEIGMANN, P.J., and COOK, J., concur.


author: JUSTICE UNVERZAGT

text:
    EDWARD L. BENNO, Plaintiff-Appellant, v. THE CENTRAL LAKE COUNTY JOINT ACTION WATER AGENCY, Defendant-Appellee.
    Second District
    No. 2 — 92—0605
    Opinion filed March 5, 1993.

      Edward L. Benno, of Grayslake, appellant pro se.

    Stewart H. Diamond and Dean W. Krone, both of Ancel, Clink, Diamond & Cope, P.C., of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court;

Plaintiff, Edward L. Benno, appeals pro se from the orders of the trial court which dissolved a temporary restraining order (TRO), dismissed plaintiff’s complaint for trespass, and awarded damages to defendant, the Central Lake County Joint Action Water Agency. The essential issue on appeal is whether a utility is free to dig and install a water main in plaintiff’s land without securing plaintiff’s permission or exercising the power of eminent domain where the State of Illinois has the right to use that land for highway purposes.

On October 23, 1991, plaintiff filed a pro se petition for a TRO against defendant. In the petition, plaintiff sought to prevent defendant from digging under or into any portion of his property until after a full hearing. Plaintiff attached to the petition his affidavit in which he averred that he owned two parcels of land at 17960 W. Route 120 which extended to the center line of Route 120 so that the south 25 feet of his property were being used by the State for highway purposes. Plaintiff further averred that a waterline under his property would prevent him from building on his land in the event that the highway easement reverts to plaintiff. Plaintiff also attached a copy of the legal description and a plat of survey of the property, and a copy of a letter from the Department of Transportation (DOT). The letter states in relevant part that DOT admitted that plaintiff owned the property up to the center line of Route 120. On the basis of these documents, the court granted a TRO.

On October 29, 1991, defendant filed an appearance and moved to dissolve the TRO. Defendant argued that the court erred in imposing the TRO by not giving notice to defendant and by not requiring plaintiff to post a bond to secure the TRO, and defendant suffered damages from the delay. Defendant also argued that plaintiff had no likelihood of prevailing on the merits and he would suffer no irreparable injury and has an adequate remedy at law if the pipe is laid under the shoulder of the road.

Defendant submitted the affidavit of its construction manager, William McDonnell, in which McDonnell stated that defendant was laying 32 miles of water transmission lines, including the line under the shoulder of Route 120. Defendant procured all of the easements or rights-of-way by donation or purchase and did not have to resort to condemnation. The lines were completed on either side of plaintiff’s property, but defendant needed to connect the lines to pressure test them. Further, McDonnell averred that until the line was pressure tested, the contractor could not begin the surface restoration.

Defendant also attached a copy of the affidavit of its chairman, N. David Graf. According to Graf, defendant received written consent from DOT to install the waterline along Route 120. Defendant had intended to place the waterline on a portion of plaintiff’s property which was not subject to the highway easement, but plaintiff demanded $196,300 for such an easement, so defendant relocated the line to be in the highway right-of-way. The waterline was completed except for the portion in front of plaintiff’s property. The water carried through this line will serve the residents of Grayslake, Gurnee and Wildwood. Finally, defendant attached a copy of the highway permit by which DOT allowed defendant to place the lines in the highway right-of-way of Route 120.

The court found that the TRO was granted without notice; the TRO was granted improvidently; and there existed an adequate remedy at law for plaintiff. The court therefore dissolved the TRO on October 29, 1991.

The following day, plaintiff filed a complaint for trespass. Plaintiff alleged, inter alia, that in February 1991, Nestor Reina, an engineer for defendant, entered plaintiff’s property. Reina gave plaintiff a packet of materials which stated that construction for the pipeline would begin in the area. Plaintiff informed Reina that the property extended to the middle of Route 120 and there were no easements on the property for defendant to use. Reina told plaintiff that defendant would not enter the property. Early in March 1991, plaintiff saw workers with chain saws cutting down bushes and trees on his property and trees with X’s spray-painted on them. One workman was inserting stakes into plaintiff’s front yard. The man informed plaintiff that he worked for the general contractor of the project. Plaintiff told them there were no easements in the property that defendant could use, and plaintiff ordered the crew to cease destroying his trees and bushes and to leave the property. After the sheriff’s deputies and Reina arrived, plaintiff showed Reina surveys of the property. Reina acknowledged that defendant had no right to enter the property and assured plaintiff they would leave and cease further trespasses. Later that month, plaintiff received a number of telephone calls from defendant requesting an easement on the property. Plaintiff further alleged that after the court dissolved the TRO, digging resumed on the property and, in the process, trees, bushes and fencing were being destroyed. In addition, plaintiff alleged that the general contractor “willfully and wantonly without notice broke the main power cable to the Property cutting off all electricity, water and heat” to plaintiff’s home. Finally, plaintiff alleged that the past trespasses caused him damages in excess of $100,000 and future trespasses would cause further damages because plaintiff would be further deprived of trees and bushes expected to die as a result of the digging. In his prayer for relief, plaintiff requested an injunction in addition to damages.

Defendant filed a motion to dismiss the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (111. Rev. Stat. 1991, ch. 110, par. 2 — 615). Defendant argued that the installation of a public improvement along a highway falls within the highway easement. On February 5, 1992, the court ruled that defendant had the right to install its pipeline beneath the highway right-of-way and there had been no trespass. The court therefore dismissed the complaint. Plaintiff filed a motion to reconsider, and defendant filed a petition for damages incurred as a result of the TRO and moved to amend the order so that the court could retain jurisdiction to hear the petition. The court denied the motion to reconsider, and it granted the motion to amend the order and allowed defendant leave to file its petition.

Plaintiff then filed a section 2 — 1401 petition for relief from the order which dissolved the TRO. (See 111. Rev. Stat. 1991, ch. 110, par. 2 — 1401.) Essentially, plaintiff alleged that defendant had notice that plaintiff was seeking a TRO because plaintiff telephoned defendant’s office that morning and informed defendant’s assistant director of plaintiff’s intention to seek a TRO. Thus, plaintiff reasoned, the TRO should not have been dissolved. Plaintiff also sought leave to file an amended complaint.

The court denied the section 2 — 1401 petition, and it denied plaintiff leave to file an amended complaint. The court granted defendant’s petition for damages and awarded defendant $10,493.57. Plaintiff then timely appealed.

Plaintiff contends that defendant had no authority to lay its pipe on plaintiff’s property. Plaintiff first cites to section 9 — 113(1) of the Illinois Highway Code (Highway Code), which provides that the consent granted to a public utility by DOT to place a pipeline under part of a highway is limited to the extent of the State’s property interest. (111. Rev. Stat. 1991, ch. 121, par. 9 — 113(1).) Subsection (1) further states that the owner of the fee under the highway is not bound by the State’s consent and the consent “shall not otherwise relieve the entity granted that consent from obtaining by purchase, condemnation or otherwise the necessary approval of any owner of the fee.” (111. Rev. Stat. 1991, ch. 121, par. 9 — 113(1).) However, the provision does not apply to uses for highway or road purposes. 111. Rev. Stat. 1991, ch. 121, par. 9 — 113(1).

Defendant responds that the water main is within the highway easement. Defendant cites to Cammers v. Marion Cablevision (1976), 64 Ill. 2d 97, in support of its argument. Defendant relies on the following language from Cammers:

“[U]nderground installations which are for the benefit of the public at large and which do not impair the use of the highway have been regarded as falling within the highway easement. (Barrows v. City of Sycamore (1894), 150 Ill. 588, 593.)” Cammers, 64 Ill. 2d at 103.

Plaintiff argues that Cammers is distinguishable and is not controlling authority. First, as plaintiff correctly points out, the above-quoted portion of Cammers is dictum. (Times Mirror Cable Television of Springfield, Inc. v. First National Bank (1991), 221 Ill. App. 3d 340, 351; Lewis v. Illinois Bell Telephone Co. (1982), 107 Ill. App. 3d 97, 99.) Lewis rejected the supreme court’s interpretation of Barrows in Cammers. (See also Cammers, 64 Ill. 2d at 104 (Ryan, J., dissenting).) Lewis held that where the land is in an unincorporated area, the underground installation was an additional burden on the fee owner and was not part of the highway easement. (Lewis, 107 Ill. App. 3d at 101.) (We note, parenthetically that section 9 — 113(a) was amended in 1988 to also require consent for highways within a municipality. See 111. Rev. Stat. 1991, ch. 121, par. 9 — 113(a).)

The holding of Lewis is directly on point factually with the present cause. However, we agree with plaintiff that Cammers is not controlling authority for another reason. Cammers applied the 1973 version of section 9 — 113 which provided, in relevant part, that, “ ‘No ditches, drains, track, rails, poles, wires, pipe line [sic] or other equipment of any public utility company *** shall be located, placed or constructed upon or along any highway *** without first obtaining the written consent of the appropriate highway authority ***.’” (Emphasis added.) {Cammers, 64 Dl. 2d at 101, quoting Dl. Rev. Stat. 1973, ch. 121, par. 9 — 113.) Section 9 — 113 was amended in 1984, to state, “No ditches, drains, track, rails, poles, wires, pipe line [sic] or other equipment of any public utility company *** shall be located, placed or constructed upon, under or along any highway *** without first obtaining written consent of the appropriate highway authority ***.” (Emphasis added.) (Dl. Rev. Stat. 1985, ch. 121, par. 9 — 113(a).) The 1973 version further provided:

“[C]onsent to so use a highway may be granted subject to such terms and conditions not inconsistent with this Code as the highway authority deems for the best interest of the public. The petitioner shall pay to the owners of property abutting upon the affected highways established as though by common law [sic] plat all damages the owners may sustain by reason of such use of the highway ***.” (Emphasis added.) (111. Rev. Stat. 1973, ch. 121, par. 9-113.)

The 1984 amendment also added subsection (1) to section 9 — 113, which, as noted above, limits the State’s consent to the extent of its interest in the land.

When the legislature has made a material amendment to a statute after judicial interpretation of the statute, it is presumed that the legislature intended to effect a change in the law. (DeGrand v. Motors Insurance Corp. (1992), 146 Ill. 2d 521, 526.) The 1984 amendments drastically altered section 9 — 113. (Compare Dl. Rev. Stat. 1985, ch. 121, par. 9 — 113 with Dl. Rev. Stat. 1983, ch. 121, par. 9 — 113.) We conclude that the legislature intended to change the law.

No case has interpreted section 9 — 113(1) or considered the effect of the amended language of section 9 — 113(a). All of the cases cited by both parties predate the statutory amendments. Thus, we will apply the rules of statutory construction to determine whether defendant was required to obtain plaintiff’s consent prior to installing the water main. The goal of statutory interpretation is to give effect to the intent of the legislature in enacting the statute. (Balmoral Racing Club, Inc. v. Illinois Racing Board (1992), 151 Ill. 2d 367, 390.) That intent should be derived from the language of the statute, the evil to be remedied and the object of the provision. American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 24.

According to the plain language of section 9 — 113(1), the public utility must obtain the consent of the property owner, unless the construction is for a highway purpose. (111. Rev. Stat. 1991, ch. 121, par. 9 — 113(1).) Defendant does not argue that installation of the water main is for a highway purpose. Justice Ryan, in his dissent to Cammers, explained that no one could lay sewer pipes on the right-of-way without the consent of the highway authorities because the use of the land is “subject to the right of the public to unobstructed use of the highway easement. The effect of section 9 — 113 is to ensure that no one — whether an abutting landowner, a public utility, or a private company acting with permission of the landowner — will interfere with the public’s highway easement.” (Cammers, 64 Ill. 2d at 107 (Ryan, J., dissenting).) Thus, the water main, like a sewer, is not being installed for a highway purpose.

Defendant argues that it did not need plaintiff’s permission because the installation of the water main was within the easement. “Obtaining a right-of-way by easement is an interest in land ***.” (Greater Peoria Sanitary & Sewage Disposal District v. Baise (1992), 234 Ill. App. 3d 622, 626.) If the unlimited use of the highway shoulder is a use permitted under the easement rights of DOT, then, under section 9 — 113(1), defendant did not need plaintiff’s permission. If, however, DOT’s easement is limited to using the highway and right-of-way solely for highway purposes, then defendant needed plaintiff’s permission to install the water main on plaintiff’s land because the use would be beyond the scope of the State’s interest in the property. Plaintiff relies on In re Onarga, Douglas & Danforth Drainage District (1989), 179 Ill. App. 3d 493, for the proposition that Illinois courts “have been loath to increase the usage to which an easement is put even through [sic] the proposed use is relative to the original purpose of a constituted easement.” (Onarga, 179 Ill. App. 3d at 494-95.) In Onarga, the court held that replacing a 10-inch drainage tile with a 24-inch drainage tile was an impermissible increase in the burden on the servient estate. 179 Ill. App. 3d at 495.

Defendant responds that under Cammers the scope of the highway easement includes underground improvements made for the benefit of the public. However, as noted above, the statutory language regarding the “best interest of the public” was deleted in the 1984 amendment to the statute. Thus, whether the project is for the benefit of the public is no longer a factor.

Defendant further argues, however, that the result in Cammers does not depend on section 9 — 113, but is based on common-law principles. We disagree. Cammers held that the consent of the State, pursuant to section 9 — 113, did not relieve the cable company from liability to the property owners for damages. (Cammers, 64 Ill. 2d at 102.) If Cammers applied common-law principles, the court would have allowed the injunction (see 64 Ill. 2d at 103) and would have found that the action of the cable company constituted a trespass (64 111. 2d at 108 (Ryan, J., dissenting)).

We conclude that the installation of the water main is beyond the scope of the easement. Defendant does not have an easement in the property. The easement here belongs to DOT for highway purposes, and an easement may not be extended to accommodate other uses. (See McCann v. R.W. Dunteman Co. (1993), 242 Ill. App. 3d 246, 255.) As discussed above, a water main is not a highway purpose. (See Cammers, 64 Ill. 2d at 107 (Ryan, J., dissenting).) The installation of the water main on plaintiff’s property would constitute a trespass at common law. (See Brinkley v. Brinkley (1988), 174 Ill. App. 3d 705, 709, 713.) The only authority for defendant to install the water main is pursuant to section 9 — 113(1), the statutory abrogation of the common law, or if it exercises the power of eminent domain.

With these principles in mind, we now consider whether the trial court erred in dismissing plaintiff’s complaint for trespass. A motion to dismiss a complaint admits all well-pleaded facts alleged in the complaint. (Carrillo v. Hamling (1990), 198 Ill. App. 3d 758, 764.) Although defendant ostensibly brought the motion to dismiss under section 2 — 615 (HI. Rev. Stat. 1991, ch. 110, par. 2 — 615), the motion actually was in the nature of a motion to dismiss based on affirmative matter which defeats the claim (111. Rev. Stat. 1991, ch. 110, par. 2— 619(aX9)). A complaint should not be dismissed pursuant to section 2— 619 unless it is clear that no set of facts exists which would entitle the plaintiff to recover. Geick v. Kay (1992), 236 Ill. App. 3d 868, 874.

In his complaint for trespass, plaintiff alleged that he owned the property on which defendant entered and began installing the water main. Plaintiff also alleged that he did not give defendant permission to install the water main. Plaintiff further alleged that defendant’s actions destroyed plaintiff’s trees and bushes and defendant acted willfully and wantonly. (See Rodrian v. Seiber (1990), 194 Ill. App. 3d 504, 509-10.) A trespass is the entry onto another’s land without permission, invitation, or other right. (Hendle v. Stevens (1992), 224 Ill. App. 3d 1046, 1055.) The allegations of the complaint are sufficient for the court to find that defendant failed to comply with the requirements of section 9 — 113(1) and that defendant wrongfully entered plaintiff’s land. Defendant did not present any affirmative matter to show that it exercised the power of eminent domain to acquire the right to install the water main. In addition, plaintiff’s request for a permanent injunction is properly supported by allegations that he suffered continuing trespasses. (Chicago Title & Trust Co. v. Weiss (1992), 238 Ill. App. 3d 921, 928.) We conclude that the court erred in dismissing plaintiff’s complaint.

Defendant argues that plaintiff’s appeal should be limited to reviewing the dismissal of the complaint because, according to defendant, plaintiff waived the other issues by failing to argue them on appeal. (See 134 Ill. 2d R. 341(e)(7); Stichauf v. Cermak Road Realty (1992), 236 Ill. App. 3d 557, 566.) In the concluding paragraph of his appellant’s brief, plaintiff requests that we reverse any ruling of the circuit court which was based on the erroneous finding that defendant was free to dig and install the water main in plaintiff’s land without his permission. However, the order dissolving the TRO was also based on the finding that defendant did not have notice of the hearing. Thus, a basis still exists for the dissolution of the TRO. In addition, defendant’s petition for damages and plaintiff’s section 2 — 1401 petition were based in part on the question of notice of the hearing for the TRO. Plaintiff did not submit a report of proceedings or a bystander’s report. We must assume that the trial court granted defendant damages based on plaintiff’s failure to notify defendant of the hearing for the TRO. (See Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92.) Consequently, we will not disturb that ruling.

The judgment of the circuit court of Lake County is affirmed in part and reversed in part, and the cause is remanded for further proceedings on plaintiff’s complaint.

Affirmed in part; reversed in part and remanded.

WOODWARD and BOWMAN, JJ., concur.


text:
    F.H. STUTZKE et al., d/b/a Stutzke Excavating and Trucking Company, Plaintiffs-Appellees, v. ILLINOIS COMMERCE COMMISSION, Defendant-Appellant.
    Fourth District
    No. 4—92—0718
    Opinion filed March 18, 1993.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Diana G. Collins, Special Assistant Attorney General, of Chicago, of counsel), for appellant.
    Robert T. Lawley, of Routman & Lawley, Ltd., of Springfield, for appel-lees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The Illinois Commerce Commission (Commission) appeals from an order of the circuit court of Sangamon County reversing the Commission’s order in a civil penalty proceeding against plaintiffs EH. Stutzke & D.E. Stutzke, d/b/a Stutzke Excavating & Trucking Company (respondents in Commission proceedings) (hereinafter Stutzke Excavating or plaintiffs). The Commission found Stutzke Excavating committed a number of for-hire intrastate moves on 32 days during a period from June 19 through November 29, 1989, in violation of section 18c — 4104(b)(1) of the Illinois Commercial Transportation Law (Transportation Law) (111. Rev. Stat. 1989, ch. 95x/2, par. 18c— 4104(b)(1)) by hauling asphalt under a license which allowed the hauling of “building materials,” but not “road building materials.” The Commission fined Stutzke Excavating $12,800. (Illinois Commerce Comm’n v. F.H. Stutzke & D.E. Stutzke (Aug. 28, 1991), Ill. Com. Comm’n No. CP — 593—MC (Commerce Commission order).) Upon judicial review pursuant to sections 18c — 2201 and 18c — 2202 of the Transportation Law (111. Rev. Stat. 1991, ch. 95V2, pars. 18c — 2201, 18c — 2202), the circuit court reversed the Commission, remanded the cause to the Commission to vacate the civil penalty, and further ordered the Commission to pay plaintiffs attorney fees pursuant to section 10 — 55(c) of the Illinois Administrative Procedure Act (Procedure Act) (111. Rev. Stat. 1991, ch. 127, par. 1010 — 55(c)).

In this appeal, the Commission asks this court to consider whether the circuit court erred by reversing its decision and awarding plaintiffs attorney fees. We reverse.

In reversing the Commission’s order, the circuit court apparently found that order was contrary to Commission regulations. (See 111. Rev. Stat. 1991, ch. 951/2, par. 18c — 2202(l)(b).) The circuit court considered the facts that the Commission relied on (1) definitions of “building materials” and “road building materials” contained in “proposed rules” which, at the time of the administrative hearing April 1991 in this case, had not yet been adopted, and (2) on an earlier Commission decision issued May 16, 1991, after the alleged violations in this case (Illinois Commerce Comm’n v. Gary Robbins (May 16, 1991), Ill. Com. Comm’n No. CP — 463—MC (Commerce Commission order)).

In this appeal, the Commission contends the circuit court erred in reversing the Commission’s order because (1) plaintiffs admitted hauling the asphalt on the dates in question, arguing that its license authorized that activity, and (2) although the rules were “proposed” and the Robbins decision did postdate the plaintiffs’ alleged violations, there was a long-standing “standard” applied by the Commission to the effect that asphalt was a “road building material” not a “building material.” The plaintiffs do not question the authority of the Commission to institute proceedings for violation of its licensing authority.

Absent from the record in this case is the hearing officer’s report and the transcript of the evidentiary hearing (while a transcript has been included as exhibit C in the appendix of the Commission’s brief, this does not make it part of the record on appeal (see 134 111. 2d R 321)). Nevertheless, the record does disclose that on February 4, 1976, a certificate identified as Ill.C.C. 11081 MC was issued to plaintiffs, whereby plaintiffs were authorized to haul the following commodities:

“Milk, fuel, livestock, household goods and building materials within a twenty-five (25) mile radius of a base point one-half mile south of Galt, Illinois; also, seed, feed, and quarry products within a forty (40) mile radius of a base point one-half mile south of Galt, Illinois; also, ferrous sulphate, soil compound, sulphate products and industrial waste materials containing sulphate within a thirty-five (35) mile radius of Rock Falls, Illinois.” (Emphasis added.)

The evidence established that plaintiffs’ trucks were conveying cold asphalt for road construction.

The Commission did adopt rules on commodity descriptions effective October 1, 1987 (11 HI. Reg. 15072 — 207). The commodity classifications under these rules included “road building materials” under the heading “Aggregates/Quarry Products/Excavated Materials/Road Building Materials.” (92 111. Adm. Code §1460.100, at 3718 (Supp. 1988).) The classification listed asphalt as a “road building material” only when it was being moved to a road construction site. (92 HI. Adm. Code §1460.100(c), at 3718 (Supp. 1988).) The commodity description of “Building/Construction Materials” included an extensive list of commodities, including asphalt, but there was a proscription that such commodities were considered to be “a building or construction material only when moving to a building or construction site.” (92 111. Adm. Code §1460.130, at 3726 (Supp. 1988).) Existing licensees were given three years from the date of the rule to petition the Commission to restate their certificates to conform to the commodity descriptions. (See 92 111. Adm. Code §1460.20, at 3715 (Supp. 1988).) These rules were repealed in 1988 (see 12 HI. Reg. 22172-73 (eff. December 15,1988)) and were never replaced.

Admitted into evidence at the hearing in the instant case as People’s exhibit No. 4 was a “Notice of Proposed Rules” issued by the Commission (to be codified as title 92, section 1311.10 of the Illinois Administrative Code) and in which “building materials” and “road building materials” were defined as follows:

“a) Building materials/construction materials include any commodity which will be used, in its present form, in the construction or repair of a building and become a part thereof. A commodity which may be used in the construction or repair of a building, but which may also have another use, can be transported under building material authority only to a building construction site.
* * *
f) Road building materials include commodities which will be used, in their present form, in the construction or repair of a road. A commodity which may be used in the construction or repair of a road, but which may have another use, can be transported under road building materials authority only to a road construction site. As used in this context ‘road’ includes parking lots, driveways and airport runways.” (15 111. Reg. 4195, 4197-98 (proposed March 22, 1991) (proposed as 92 111. Adm. Code §§1311.10(a), (f)).)

This rule had not been adopted when the Commission entered its order which is the subject of this appeal. In the Robbins case, relied on by the Commission in its order herein, the Commission, without citing any precedent, stated as follows:

“By well-defined Commission precedent, the delivery of hot asphalt mix for use in road construction does not fall within the definition of ‘building material’ as contained in the licensed authority.” (Illinois Commerce Comm’n v. Gary Robbins (May 16, 1991), Ill. Com. Comm’n No. CP — 463—MC (Commerce Commission order at 2).)

The plaintiffs here argue it was an abuse of discretion for the Commission to base its definition of “building materials” on rules that had not been adopted as required by the Procedure Act. (See 111. Rev. Stat. 1991, ch. 127, pars. 1005-10(c), 1005-35(b), 1005-40.) We find, however, that the classifications of “building materials” and “road building materials” involved in this case are not mandatory rules as defined by the statute. (111. Rev. Stat. 1991, ch. 951/2, pars. 18c — 1201, 18c — 1202(1), (5), (9); ch. 127, pars. 1003.09, 1005-10(a), 1005-15(a).) This appeal involves the question of whether those definitions should be considered “rules” at all. In Senn Park Nursing Center v. Miller (1984), 104 Ill. 2d 169, 177-81, 470 N.E.2d 1029, 1033-35, the Illinois Supreme Court found a new inflation-update procedure for the Illinois Department of Public Aid to be a rule and declared it invalid as a result of the agency’s failure to follow proper procedure for adopting the rule. Nevertheless, this court has recognized that not all statements of agency policy constitute the adoption of a rule requiring compliance with the Procedure Act. (Kaufman Grain Co. v. Director of the Department of Agriculture (1988), 179 Ill. App. 3d 1040, 1047, 534 N.E.2d 1259, 1264.) For example, when an administrative agency interprets statutory language as it applies to a particular set of facts, the rulemaking procedure of the Procedure Act is not invoked. (Kaufman Grain Co., 179 Ill. App. 3d at 1047, 534 N.E.2d at 1264, citing NLRB v. Wyman-Gordon Co. (1969), 394 U.S. 759, 22 L. Ed. 2d 709, 89 S. Ct. 1426, and Board of Trustees, Prairie State College v. Illinois Educational Labor Relations Board (1988), 173 Ill. App. 3d 395, 412, 527 N.E.2d 538, 549-50.) Another judicially recognized exception, which the Commission urges this court to apply here, was expressed in City of Chicago v. Illinois Commerce Comm’n (1985), 133 Ill. App. 3d 435, 447-48, 478 N.E.2d 1369, 1378, as follows:

“The issue of whether an agency standard should be cast immediately into the mold of a general rule or whether the agency should proceed on a more informal basis adjusting its standards as the need arises was addressed by the United States Supreme Court in Securities & Exchange Com. v. Chenery Corp. (1947), 332 U.S. 194, 91 L. Ed. 1995, 67 S. Ct. 1575. There, the court interpreted a statute with the pertinent provisions essentially the same as our own act and concluded that the choice between proceeding by general rule or by individual ad hoc litigation is one that lies in the informed discretion of the administrative agency. (Accord, NLRB v. Majestic Weaving Co. (2d Cir. 1966), 355 F.2d 854.) Accordingly, we believe it is within the Commission’s discretion to develop an interim rate standard without promulgating a rule.”

The language of a certificate of authority should be construed in accordance with the ordinary meaning of the words used. (13 C.J.S. Carriers §75, at 85 (1990).) Whether the plaintiff violated its authority based upon the evidence in this case is a question of fact. It is clear from the record that the Commission’s order was not based on an improperly promulgated rule. The order was not against the manifest weight of the evidence, nor was it arbitrary or capricious.

We agree with the Commission that the definitions of “building material” and “road building material” applied in this case are interim standards which may be applied without formal promulgation as a rule. In light of our holding on this issue, it becomes evident that the circuit court also erred in awarding attorney fees, since such an award can only be made in the event a rule of an agency is invalidated by a court. HI. Rev. Stat. 1991, ch. 127, par. 1010 — 55(c) (formerly HI. Rev. Stat. 1989, ch. 127, par. 1014.1(b)).

Accordingly, we reverse the orders of the circuit court of Sanga-mon County reversing the order of the Commission and remanding the cause to the Commission to vacate the civil penalty and awarding attorney fees to plaintiffs, and reinstate the Commission’s order.

Reversed; Commission order reinstated.

COOK and GREEN, JJ., concur.


author: JUSTICE QUETSCH

text:
    LESTER GREENFIELD, Plaintiff-Appellant, v. RAY STAMM, INC., et al., Defendants-Appellees.
    Second District
    No. 2 — 92—0125
    Opinion filed February 26, 1993.
    Rehearing denied April 14, 1993.

      Donald J. Miller, of Forreston, for appellant.
    Frederic T. Brandt, of Kostantacos, Traum, Reuterfors & McWilliams, P.C., of Rockford, for appellees.
   JUSTICE QUETSCH

delivered the opinion of the court:

Plaintiff, Lester Greenfield, appeals the circuit court’s order dismissing his amended complaint. Plaintiff raises three issues on appeal: (1) whether plaintiff’s amended complaint “related back” to the time of the filing of his original complaint; (2) whether plaintiff’s amended complaint is barred by res judicata; and (3) whether plaintiff’s cause of action exists under the Business Corporation Act of 1983 (111. Rev. Stat. 1991, ch. 32, par. 12.80). We affirm.

On May 4, 1990, plaintiff filed suit in the circuit court of Winnebago County in cause No. 90 — L—225, alleging that he suffered personal injuries on or about August 14, 1988, while operating certain farm equipment. Plaintiff’s complaint named as defendants: Ray Stamm, Inc., n/k/a Stamm Farm Systems, Inc., and Van Dusen and Company, Inc., n/k/a Dyna Matic Feeding Systems, Inc. The latter defendant is not involved in this appeal. Count I alleged that defendant Ray Stamm, Inc., n/k/a Stamm Farm System, Inc., was engaged in the business of repairing and overhauling certain farm equipment and that sometime prior to August 14, 1988, defendant agreed to repair and overhaul plaintiff’s farm equipment. Count I further alleged that on or about August 14, 1988, plaintiff suffered physical injuries as the proximate result of defendant’s negligent acts in repairing and overhauling plaintiff’s equipment.

On May 14, 1990, an affidavit of service of process was returned showing service on defendant Stamm Farm System was made by serving Connie Stamm, “an employee of defendant.” On December 11, 1990, “Stamm Farm System, Inc. incorrectly sued as Ray Stamm, Inc., n/k/a Stamm Farm Systems, Inc.,” filed a motion to dismiss, or, in the alternative, a motion to transfer venue because plaintiff’s complaint failed to allege jurisdiction was proper in Winnebago County. On December 20, 1990, the court entered an order, pursuant to the parties’ agreement, transferring the cause to Stephenson County, where the case was assigned No. 90 — L—2. The order was drafted by defendant’s attorney, stating that the motion was that of defendant, Stamm Farm System, Inc., and did not state that Stamm Farm System, Inc., was incorrectly sued as Ray Stamm, Inc., n/k/a Stamm Farm Systems.

On January 8, 1991, Stamm Farm Systems, Inc., apparently propounded written interrogatories and a request for production upon plaintiff’s counsel. These documents were not filed with the trial court, pursuant to local circuit court rules, and thus are not included in the record on appeal. However, a proof of service of these documents appears in the record, with the following caption of the case: Lester Greenfield, v. Ray Stamm, Inc., n/k/a Stamm Farm Systems, Inc., etc. On January 9, 1991, Stamm Farm Systems, Inc., filed its answer. The prologue to the answer stated that Stamm Farm Systems, Inc., was incorrectly sued as Ray Stamm, Inc., n/k/a Stamm Farm Systems, Inc.

On February 20, 1991, “Stamm Farm Systems, Inc., incorrectly sued as Ray Stamm, Inc., n/k/a Stamm Farm Systems, Inc.,” filed a motion for summary judgment. The motion alleged inter alia that Stamm Farm Systems, Inc.: (1) was incorporated in 1987, (2) never repaired or overhauled plaintiff’s equipment before the date of plaintiff’s accident, (3) purchased the assets of Ray Stamm, Inc., for cash, and (4) did not assume the liability of Ray Stamm, Inc. The motion also alleged that the shareholders, directors, and managers of Ray Stamm, Inc., and Stamm Farm Systems, Inc., were not the same.

Attached to the motion were affidavits of Jeffrey Stamm (Ray Stamm’s son) and Ray Stamm. Jeffrey Stamm’s affidavit stated, inter alia, that: (1) he was the president of Stamm Farm Systems, Inc., (2) Stamm Farm Systems, Inc., was incorporated in 1987, (3) Jeffrey Stamm had never been a shareholder, director, or officer of Ray Stamm, Inc., (4) none of the officers or directors of Ray Stamm, Inc., had ever been officers or directors of Stamm Farm Systems, Inc., (5) the shareholder of Ray Stamm, Inc., had never been a shareholder of Stamm Farm Systems, Inc., and (6) Stamm Farm Systems, Inc., did not repair or overhaul plaintiff’s equipment on or before the date of plaintiff’s injury. Ray Stamm’s affidavit stated, inter alia, that: (1) he was the president and sole shareholder of Ray Stamm, Inc., (2) in December 1987, most of the assets of Ray Stamm, Inc., were sold for cash to Stamm Farm Systems, Inc., (3) no stock was ever transferred between Ray Stamm, Inc., and Stamm Farm Systems, Inc., (4) none of the officers or directors of Stamm Farm Systems, Inc., were officers or directors of Ray Stamm, Inc., and (5) Ray Stamm was never an officer, shareholder, director or employee of Stamm Farm Systems, Inc. Attached to Ray Stamm’s affidavit were several documents relating to the sale of the assets of Ray Stamm, Inc., to Stamm Farm Systems, Inc.

On February 27, 1991, plaintiff filed an amended complaint in cause No. 91 — L—2, count I of which named Ray Stamm, Inc., as defendant and alleged the identical allegations as those contained in plaintiff’s original complaint. Also on February 27, 1991, plaintiff filed a new action, which was assigned case No. 91 — L—14. Count I of case No. 91 — L—14 named Ray Stamm, Inc., as defendant and contained the identical allegations as those contained in plaintiff’s original and amended complaints in cause No. 91 — L—2.

On March 8, 1991, the circuit court entered an order allowing plaintiff leave to file the amended complaint in cause No. 91 — L—2. The court further ordered that Stamm Farm Systems, Inc., was dismissed with prejudice from cause No. 91 — L—2.

On April 24, 1991, summons was served personally on Ray Stamm in cause No. 91 — L—2. On April 26, 1991, the circuit court granted Ray Stamm, Inc.’s motion to dismiss in cause No. 91 — L—14, ruling that plaintiff’s cause of action was barred by the two-year product liability statute of limitations because plaintiff’s alleged injury occurred on August 14, 1988, and plaintiff’s complaint in cause No. 91 — L—14 was not filed until February 1991.

On April 30, 1991, Ray Stamm, Inc., filed a motion to dismiss in cause No. 91 — L—2. (See 111. Rev. Stat. 1991, ch. 110, par. 2 — 619.) Ray Stamm, Inc., contended that the dismissal of cause No. 91 — L—14 was an adjudication on the merits of plaintiff’s claim and therefore the principles of res judicata barred any further similar claim, including cause No. 91 — L—2. Ray Stamm, Inc.’s motion also contended that, even if res judicata did not apply, the amended complaint in cause No. 91 — L—2 should be dismissed because it was barred by the two-year product liability statute of limitations. Ray Stamm, Inc., contended that although plaintiff’s original complaint, filed on May 4, 1990, appeared to be filed within two years of the alleged accident on August 14, 1988, Ray Stamm, Inc., was not a party defendant in cause No. 91 — L—2 until February 27, 1991, when Ray Stamm, Inc., was named in plaintiff’s amended complaint. Ray Stamm’s affidavit, attached to the motion, also stated, inter alia, that Connie Stamm (who had been served earlier as an employee of Stamm Farm Systems) was not an agent or employee of Ray Stamm, Inc. Ray Stamm, Inc.’s motion further contended that plaintiff’s claim could not “relate back” to the time plaintiff filed his original complaint because (1) plaintiff’s failure to join Ray Stamm, Inc., was not inadvertent, and (2) no service upon any agent of Ray Stamm, Inc., was ever had in the original action prior to the expiration of the statute of limitations. See 111. Rev. Stat. 1991, ch. 110, pars. 2-616(d)(2), (d)(3).

In response, plaintiff contended that res judicata did not apply because that concept operates to bar similar subsequent suits not previously filed suits. Plaintiff also contended that plaintiff’s naming of Stamm Farm Systems, Inc., as defendant instead of naming Ray Stamm, Inc., was inadvertent. Also, plaintiff contended he did not know that Ray Stamm, Inc., had sold its assets to Stamm Farm Systems until February 1991 when Stamm Farm Systems, Inc., filed its motion for summary judgment. Plaintiff contended that when he learned that Stamm Farm Systems, Inc., was a separate corporate entity from Ray Stamm, Inc., plaintiff agreed to and did dismiss Stamm Farm Systems on March 8, 1991. Plaintiff also stressed that Stamm Farm Systems engaged in several acts of litigation, e.g., filing a motion to transfer venue, production requests, and a change of venue. Therefore, plaintiff contended that based on Stamm Farm Systems, Inc.’s actions, plaintiff’s failure to name Ray Stamm, Inc., as a defendant in plaintiff’s original complaint was inadvertent.

The trial court granted Ray Stamm, Inc.’s motion to dismiss. In its memorandum opinion, the court found:

“(1) plaintiff’s amended complaint did not relate back under ch. 110, par. 2 — 616(d) because the affidavits attached to Ray Stamm, Inc.’s motion to dismiss negated the plaintiff’s having served summons on any agent of defendant Ray Stamm, Inc., and no counteraffidavit was filed by plaintiff. Furthermore, plaintiff failed to show that his failure to name Ray Stamm, Inc. within the statute of limitations was the result of inadvertence;
(2) that the same parties and same subject matter in cause No. 91 — L—2 were involved in 91 — L—14, consequently, the doctrine of res judicata applied;
(3) that chap. 32, §12.80 of the Illinois Revised Statutes did not provide plaintiff an extended time to file his cause of action against Ray Stamm, Inc. which was dissolved in 1988.”

Plaintiff filed a motion to reconsider alleging the same grounds as those plaintiff stated in opposition to defendant’s motion to dismiss. The trial court denied plaintiff’s motion to reconsider and entered a finding that the granting of defendant’s motion to dismiss was a final and appealable order. (134 111. 2d R. 304(a).) Plaintiff then filed this timely appeal.

Plaintiff urges reversal is warranted on three alternative grounds: (1) that his amended complaint is not barred by the statute of limitations because it “related back” to the time of the filing of his original complaint (111. Rev. Stat. 1991, ch. 110, par. 2 — 616(d)); (2) res judi-cata does not apply; and (3) plaintiff’s cause of action survives the dissolution of Ray Stamm, Inc., under the Business Corporation Act (111. Rev. Stat. 1991, ch. 32, par. 12.80).

Regarding plaintiff’s first contention, an amendment adding a person as a defendant may relate back to the date of the filing of the original complaint and thus prevent the action from being time barred if the following five requirements are satisfied:

“(1) the time prescribed or limited had not yet expired when the original action was commenced; (2) failure to join the person as a defendant was inadvertent; (3) service of summons was in fact had upon the person, his or her agent or partner, as the nature of the defendant made appropriate, even though he or she was served in the wrong capacity or as agent of another, or upon a trustee who has title to but no power of management or control over real property constituting a trust of which the person is a beneficiary; (4) the person, within the time that the action might have been brought or the right asserted against him or her, knew that the original action was pending and that it grew out of a transaction or occurrence involving or concerning him or her; and (5) it appears from the original and amended pleadings that the cause of action asserted in the amended pleading grew out of the same transaction or occurrence set up in the original pleading.” (111. Rev. Stat. 1991, ch. 110, par. 2 — 616(d).)

Here, the trial court dismissed plaintiff’s complaint under section 2— 616(d) because plaintiff did not prove inadvertence and did not serve process on any agent of Ray Stamm, Inc., within the statute of limitations.

In the trial court and in his brief to this court, plaintiff cites several circumstances which he contends prove his inadvertence in not naming Ray Stamm, Inc., as a defendant within the statute of limitations period. Specifically, plaintiff relies on the similarity of names between “Ray Stamm, Inc.,” and “Stamm Farm Systems Inc.,” the fact that the two businesses were owned respectively by father and son, that the two businesses shared the same location at various times in Lena, Hlinois, and the fact that plaintiff did business at the Lena location for approximately 20 years.

Nevertheless, plaintiff fails to refute the fact that he did not obtain service on Ray Stamm, Inc., or any of its agents within the original statute of limitations. Plaintiff obtained service on Connie Stamm within the statute of limitations and served Ray Stamm personally in May 1991, which was after the statute of limitations expired. Here, Ray Stamm filed an affidavit stating that Connie Stamm was never an agent of Ray Stamm, Inc. Plaintiff presented no evidence to the contrary. In order for an amended pleading to “relate back” to the time of the filing of the original pleading, all elements of section 2— 616(d) must be met. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 616(d); Thomson v. McDonald’s, Inc. (1989), 180 Ill. App. 3d 984, 987.) Consequently, even if plaintiff was able to prove inadvertence in not serving or not naming Ray Stamm, Inc., within the statute of limitations, plaintiff’s amended complaint cannot “relate back” to the time of the filing of the original complaint, because plaintiff did not serve any agent of Ray Stamm, Inc., within the statute of limitations.

Nevertheless, plaintiff cites cases where amended complaints were deemed to relate back under section 2 — 616(b). (E.g., Wolf v. Meister-Neiberg, Inc. (1991), 143 Ill. 2d 44.) We note that plaintiff did not raise section 2 — 616(b) in the trial court. Consequently, plaintiff has waived his argument under this section.

Plaintiff does cite to several cases where relation back was proper under section 2 — 616(d). However, each of these cited cases is distinguishable from the facts here. In Bates v. Wagon Wheel Country Club, Inc. (1971), 132 Ill. App. 2d 161, the plaintiff sued the agent of the correct defendant within the statute of limitations. In Lawrence v. Williamson Ford, Inc. (1973), 13 Ill. App. 3d 880, a merger of one corporation into another was found, which did not occur here. In Greig v. Griffel (1977), 49 Ill. App. 3d 829, service of summons was never addressed. In Greil v. Travelodge International, Inc. (1989), 186 Ill. App. 3d 1061, the two corporate defendants discussed were found to be one and the same, which is not the case here. In Ellis v. Borisek (1991), 220 Ill. App. 3d 48, the proper defendant was served within the statute of limitations.

Plaintiff cites no cases where a plaintiff sued a wrong or misnamed defendant where relation back was warranted under section 2 — 616(d) even though all of the elements of that section were not met. Nor have we found any such cases. Consequently, we hold that plaintiff’s amended complaint did not relate back to the date of the filing of plaintiff’s original complaint. Therefore, plaintiff’s amended complaint is barred by the two-year product liability statute of limitations. The trial court’s ruling on this issue was correct.

Similarly, the trial court properly ruled that plaintiff’s complaint in cause No. 91 — L—14 was barred by the doctrine of res judicata. The trial court’s dismissal of cause No. 91 — L—14, based on the two-year statute of limitations, is an adjudication on the merits. (See 134 Ill. 2d R. 273; Muscare v. Voltz (1982), 107 Ill. App. 3d 841.) Here, plaintiff’s subsequent filing in No. 91 — L—14 and the original and amended filings in No. 91 — L—2 contain the identical allegations and parties. Once the trial court dismissed cause No. 91 — L—14 on the basis of the statute of limitations, that dismissal operated as res judicata barring further litigation of cause No. 91 — L—2.

Nevertheless, plaintiff contends that res judicata cannot operate to bar a previously filed suit. Plaintiff relies on the fact that cause No. 91 — L—14 was filed after plaintiff filed cause No. 91 — L—2. Consequently, plaintiff contends that res judicata cannot operate to bar the previously filed suit, cause No. 91 — L—2. Interestingly, plaintiff cites a case which specifically refutes this contention. Singer v. Brookman (1991), 217 Ill. App. 3d 870, states:

“The doctrine of res judicata (section 2 — 619(aX4) of the Illinois Code of Civil Procedure (111. Rev. Stat. 1983, ch. 110, par. 2 — 619(a)(4))) requires a dismissal with prejudice where an action is barred by a prior judgment. In order for this doctrine of preclusion by prior judgment to apply, there must be an identity of parties or their privies, identity of the cause of action and subject matter, and a final judgment on the merits in the earlier suit.” (Emphasis added.) (217 Ill. App. 3d at 875.)

This language implies that once there is final judgment, causes of action containing identical parties, subject matter, and issues are precluded by the doctrine of res judicata. It is the timing of the judgment, not the timing of the filing, which controls the doctrine. See also Kewanee Lumber & Supply Co. v. Guest Laundry Co. (1940), 306 Ill. App. 491 (the first judgment rather than the first filing is the basis for res judicata).

Lastly, plaintiff contends that even if his amended complaint is barred by res judicata and does not relate back to the time of the original filing, plaintiff still has a valid cause of action under the Business Corporation Act. We disagree. The particular statute plaintiff relies upon states:

“Survival of remedy after dissolution. The dissolution of a corporation either (1) by the issuance of a certificate of dissolution by the Secretary of State, or (2) by a judgment of dissolution by a circuit court of this State, or (3) by expiration of its period of duration, shall not take away nor impair any civil remedy available to or against such corporation, its directors, or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if action or other proceeding thereon is commenced within five years after the date of such dissolution. Any such action or proceeding by or against the corporation may be prosecuted or defended by the corporation in its corporate name.” (Emphasis added.) 111. Rev. Stat. 1991, ch. 32, par. 12.80.

Here, the parties do not dispute that Ray Stamm, Inc., was dissolved, although the parties disagree as to the exact date of the dissolution. Plaintiff contends that Ray Stamm, Inc., dissolved on March 1, 1989, while defendant contends that its corporation dissolved on February 21, 1988. The record is not sufficiently clear as to which of the two dates is correct. However, the exact date of the dissolution is irrelevant for our purposes here. Regardless of whether defendant’s corporation dissolved in 1988 or 1989, the fact remains that plaintiff’s claim against defendant no longer exists because it is barred by the statute of limitations and the doctrine of res judicata. Consequently, the claim exerted by plaintiff in both his original and amended pleadings is no longer a “claim existing” against Ray Stamm, Inc. Moreover, the case relied upon by plaintiff, Poliquin v. Sapp (1979), 72 Ill. App. 3d 477, expressly stated that the survival of remedy after dissolution statute is in essence a corporate survival statute rather than a statute of limitation. The corporate survival statute does not extend the two-year statute of limitations for personal injuries as is the case here.

For these reasons, the order of the circuit court of Stephenson County dismissing plaintiff’s amended complaint is affirmed.

Affirmed.

WOODWARD and GEIGER, JJ., concur.