source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
    NORTHWEST COMMERCE BANK, Plaintiff-Appellee and Cross-Appellant, v. CONTINENTAL DATA FORMS, INC., Defendant-Appellant and Cross-Appellee (C J S Commercial Property Associates, Inc., Plaintiff-Appellee and Cross-Appellant).
    Second District
    No. 2—91—1211
    Opinion filed August 18, 1992.

      Jeffrey Lawrence, of Kelley & Associates, of Schaumburg, and Ronald 0. Roeser, of Roeser, Vucha & Carbary, of Elgin, for appellant.
    Howard B. Prossnitz, of Rochelle, for appellees.
   JUSTICE GEIGER

delivered the opinion of the court;

The plaintiffs, Northwest Commerce Bank and C J S Commercial Property Associates, Inc. (the landlords), filed two claims against the defendant, Continental Data Forms, Inc. (the tenant). They sought rent, real estate taxes, insurance, common area maintenance expenses, and damages on two leases breached by the tenant. After the claims were consolidated and tried, the court awarded the landlords $170,272.45, and the tenant appealed. The landlords brought a cross-appeal, arguing they were entitled to relief if this court ordered a new trial. We affirm the court’s award, as modified.

This case arose after the tenant vacated commercial and industrial premises it had leased from the landlords. Although its leases ran through July 14, 1989, the tenant vacated the premises in October 1988.

In January 1991, the court granted the landlords partial summary judgment for base rent and real estate taxes of $44,411.25. Following a bench trial on the remaining issues, the court entered judgment for the landlords: $170,272.45; that amount was a total, including the summary judgment amount. The court denied the tenant’s claim for rent setoff. The parties brought this appeal and cross-appeal.

The parties agree that the court’s award comprised the following elements:

Base rent and taxes $ 44,411.25
Insurance 5,413.97
Common area maintenance 3,968.58
Repairs 108,897.03
Interest 7,581.62

The parties also agree that the court disallowed $89,195.65 of the landlords’ claims. Those amounts were for brokerage and advertising costs to relet; the rent concession and construction allowance to the new tenant, Material Corporation; a repair allowance to Gold’s Gym; and certain other repair amounts.

On appeal, the tenant first argues that although the landlords were entitled to have the property restored to them in a decent condition, the trial court erred in awarding damages for demolition and removal of interior walls and ceilings, and for the related replacement of sprinkler lines and electrical equipment. According to the tenant, these expenses were for capital improvements, and, thus, their award to the landlords was against the manifest weight of the evidence.

The landlords argue that these expenses were not capital improvements but were necessary repair because of the widespread interior damage left by the tenants. According to the landlords, these charges reflected the cheapest repair of the premises.

A vacating tenant has no duty to pay for capital improvements which add value to the property. (Pioneer Trust & Savings Bank v. Zonta (1981), 96 Ill. App. 3d 339, 346.) However, as the tenant acknowledges, if the condition of the premises is not the same at the end of a tenancy as at the beginning, the landlord may hold the tenant liable for the costs to return the premises to a condition acceptable for rental. (Pyramid, Enterprises, Inc. v. Amadeo (1973), 10 Ill. App. 3d 575, 579.) Also, the owner of damaged property has the discretion to decide how to fix it. United States v. Peavey Barge Line (C.D. Ill. 1984), 590 F. Supp. 319, 323.

On appeal, the trier of fact’s determination of damages should not be disturbed unless it is contrary to the manifest weight of the evidence. (Pioneer, 96 Ill. App. 3d at 345.) Even when the appellate court would have been better satisfied with different findings as to damages, it will not interfere with the trial court’s award, where the evidence is conflicting or where there is evidence in support of the verdict and there is no indication that the award was the result of passion, prejudice, or corruption. 96 Ill. App. 3d at 345.

We find no basis to disturb the court’s award of damages for the demolition and removal of interior walls or the replacement of sprinkler lines and electrical equipment. The trial court considered evidence, including testimony of the landlords’ president, Carl Swanson, that the landlords had chosen demolition and cleanup as being easier and less expensive than repairing the various types of damage left by the tenant.

Furthermore, we do not find, as the tenant argues, that Swanson’s testimony in that regard was unsupported by the other evidence. The tenant contrasts the court’s approximate $39,000 demolition award with the landlords’ $19,920 estimate for repair of the wall and ceiling damage caused by the tenant. However, in response to questioning about any anticipated additional repair expenses, Swanson referred to an additional $1,200 for painting and staining new doors and frames. Swanson further opined, based on his experience with the contractor who had offered the $19,920 estimate, that the actual repair bill probably would have been $25,000 higher.

Considering all the record evidence, we do not find any reason to disturb the court’s apparent conclusion that the landlords’ demolition and rebuilding was the least expensive means for the landlords to return their property to a condition acceptable for rental. (See Pyramid, 10 Ill. App. 3d at 579.) There is no basis for us to conclude that it was against the manifest weight of the evidence or that it was the result of passion, prejudice, or corruption. Pioneer, 96 Ill. App. 3d at 345-46.

The tenant’s second argument challenges whether another portion of the court’s damage award was against the manifest weight of the evidence. In that argument, the tenant charges that the court erred in awarding damages for “wear and tear” repairs. The tenant correctly notes that the leases at issue exempted it from a duty to repair damage caused by ordinary wear and tear. It argues that $19,621.56 of the court’s damage award improperly covered ordinary wear and tear. That amount was for removal and replacement of seven service doors, frames, and hardware; for repair and replacement of overhead garage doors; and for heating and air conditioning repairs. We will address each of those subarguments in turn.

Regarding the landlords’ claim of service door and related replacements, president Swanson testified that the doors were delaminated and “coming apart.” The landlords’ contractor, Rick Korporwicz, also testified that the doors had hinges missing and that they were bent and delaminated. According to Korporwicz, the doors were made of metal, and after the tenant vacated the premises, their condition caused them not to close properly. Based on this evidence, we find no abuse of discretion in the trial court’s apparent conclusion that this damage was not the result of ordinary wear and tear. Pioneer, 96 Ill. App. 3d at 345-46.

Regarding the award of the cost to replace damaged garage doors, Korporwicz testified that the landlords had replaced only doors that could not be repaired; reparable doors were, instead, repaired. Korporwicz also testified that the doors that he replaced had had holes punched in them. President Swanson testified that the holes in the doors at issue were variously sized and punched from the inside to the outside; he opined that forklift trucks had punched them. The tenant’s former maintenance foreman, Max Metz, testified that the fiber in the overhead doors had been disintegrating and that he had repeatedly patched them.

In analyzing this portion of the award, the tenant asserts, without explanation, that foreman Metz’s testimony “is obviously entitled to greater weight.” Despite the absence of direct testimony on how the holes were created in the overhead garage doors, we find the full record supports the trial court’s conclusion that the damage was not the result of normal wear and tear. (See Pioneer, 96 Ill. App. 3d 345-46.) We note that the tenant has offered no authority for his suggestion that a forklift’s punching holes into doors should be classified as ordinary wear and tear rather than damage that should be avoided by the exercise of ordinary and reasonable care.

The final item in this argument addresses repairs to heating and air conditioning equipment. In that portion of its argument, the tenant examines the relevant lease clauses and claims that under that language it was not responsible to maintain the equipment at issue because the equipment was located on top of the building rather than inside the building. The landlords claim that the tenant has waived the argument because it never was raised in the trial court.

The tenant correctly notes that damages related to the heating and air conditioning equipment were generally at issue in the trial court. However, it does not refer us to nor do we find any trial record reference to the particular argument now presented, one based on the equipment’s physical location. We agree with the landlords that the issue has been waived as it was not raised in the trial court. See In re Estate of Halas (1991), 209 Ill. App. 3d 333, 350.

The tenant’s next argument on appeal is that the court erred in awarding interest. The parties apparently agree that the court awarded the landlords 10% per annum interest, pursuant to the landlords’ calculation that $7,581.62 interest was due on rent, taxes, insurance, and common area maintenance amounts owed by the tenant. The tenant argues merely that the landlords did not supply a reasonable basis for computing interest. The landlords rely on the parties’ stipulation to the admission of the landlords’ exhibit 1C and on the lease provision that allows recovery of prime rate interest on unpaid lease expenses.

Exhibit 1C is entitled “Amounts Sought by Plaintiffs.” It itemizes damage requests and includes an entry “Interest on Unpaid Lease Expenses *** ($37,908.08 x 10% x 2 years) $7,581.62.” The landlords claim that exhibit 1C used 10% as the average of the Citibank prime interest rate from 1989 to 1991. They also note that the tenant did not object to admission of exhibit 1C or to its reference to the 10% figure, nor did the tenant present evidence that the 10% interest amount was unreasonable or question witnesses regarding the rate. The tenant replies that the record includes no evidence that 10% was the average Citibank prime rate between 1989 and 1991.

Both parties cite only to Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668. That case cites the well-established rule that, in an action for damages for breach of contract, the parties seeking to recover must supply a reasonable basis for damage computation. (42 Ill. App. 3d at 677.) In Brewer, the court found that the plaintiffs had failed to produce proper evidence to allow reasonable computation of their damages for the defendant’s defective workmanship on a soffit.

Although the facts in this case are somewhat different than those in Brewer, we note that the burden of proof of damages is on the plaintiff, not on the defendant. (First National Bank v. Dusold (1989), 180 Ill. App. 3d 714, 718.) Furthermore, we note that the plaintiff must prove damages to a reasonable degree of certainty and evidence cannot be remote, speculative, or uncertain. In re Estate of Halas (1991), 209 Ill. App. 3d 333, 349.

In this case, we find no evidentiary basis upon which the court could have based its interest award. (See First National Bank, 180 Ill. App. 3d at 720.) The only record basis we find for an interest award is exhibit IC’s fully unverified interest reference. The tenant’s stipulation to admission of that exhibit is no more a stipulation to its liability on a 10% interest rate than it is a stipulation to its liability on the other damages claimed therein. Furthermore, the tenant’s failure to present evidence contrary to the 10% reference is of no consequence, where the landlords presented no evidence proving the relevant prime interest rate to a reasonable degree of certainty. (180 Ill. App. 3d at 720.) Because it lacks record support, we vacate the court’s interest award.

The tenant’s fourth argument is that the court erred in rejecting its claim for rent setoff. At trial, the tenant claimed a rent setoff based upon the base rent chargeable to the successor tenant, Material Corporation, during the 21h months that were covered both by the new Material Corporation lease and the tenant’s unexpired lease. The landlords objected to the setoff, relying on the fact that they had forgiven Material Corporation its first four months of rent, so that no rent was due, collected, or available for an offset.

In its appellate argument, the tenant relies on non-Illinois law, urging the reasonableness of the Maryland approach to a similar situation in Millison v. Clarke (1980), 287 Md. 420, 413 A.2d 198. The parties agree that in Millison the landlord granted its new tenant a rent holiday at the beginning of the lease and that the court held that whether the old tenant was entitled to a credit for rent amounts that could have collected from the new tenant depended upon a factual determination of whether the rent concession was necessary in order to persuade the new tenant to sign the lease.

Like the landlords, we analyze this issue by assuming for the sake of argument that we should follow the Millison approach urged by the tenant. Even given that assumption, we find no basis to disturb the trial court’s determination here. The record includes testimony from both the president of Material Corporation and from president Swanson that because of the condition of the property, Material Corporation would not have leased it without the rent holiday. The record was sufficient for the trial court to conclude that the four-month rent concession was necessary to persuade Material Corporation to sign the new lease. Consequently, we find no basis to reverse the trial court’s denial of a setoff.

The tenant’s final argument is more generally that the court’s judgment for damages other than base rent and real estate taxes is not supported by the evidence. In this portion of its argument, the tenant relies on the court order’s lack of specificity as to the elements of damage awarded. We find no merit to this claim.

As we noted earlier, even when the appellate court would have been better satisfied with different findings, we generally will not interfere with a trial court award supported by the evidence. (Pioneer Trust & Savings Bank v. Zonta (1981), 96 Ill. App. 3d 339, 345.) As the landlords note, although it did not specify the amounts related to each relevant portion of the award, the court’s opinion did enumerate the categories of damages awarded or denied. Furthermore, Illinois Supreme Court Rule 366 makes clear that specific findings are not required. 134 Ill. 2d R. 366(b)(3)(i).

We note that the record in this case includes a full report of proceedings. (Cf. Ill. Ann. Stat., ch. 110A, par. 366, Historical & Practice Notes, at 45 (Smith-Hurd 1985).) We also find that the tenant misplaces reliance on Muck v. Van Bibber (1992), 223 Ill. App. 3d 830. In Muck, the appellate court vacated the trial court’s dismissal of the complaint and ordered the trial court to specify which of the defendant’s 10 argued bases for dismissal underlay its decision to dismiss. In this case, unlike in Muck, our review of the trial court’s decision is in no way hampered by lack of specificity in the trial court’s order.

Under the powers of Supreme Court Rule 366(a)(l) (134 Ill. 2d R. 366(a)(l)), we modify the court’s judgment to eliminate the award for $7,651.63 interest. We then affirm the judgment of the trial court, as modified. In so doing, we note that the landlords limit their cross-appeal to a request that, if a new trial is ordered, they be allowed to seek the amounts originally disallowed by the trial court. We deny any cross-appeal.

Based on the foregoing, we affirm the judgment of the circuit court of Kane County, as modified.

Affirmed as modified.

WOODWARD and NICKELS, JJ., concur.


author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILMON BOSLEY, Defendant-Appellant.
    Second District
    Nos. 2—90—1029, 2—90—1394 cons.
    Opinion filed August 13, 1992.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant was convicted, following a bench trial, of the offenses of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(b)(1)) and aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12—16(c)(1)), both offenses involving one victim, D.R. Defendant subsequently pleaded guilty to another aggravated criminal sexual assault charge involving a different victim, C.R. The 55-year extended-term sentences imposed for the three convictions were reversed by this court in People v. Bosley (1990), 197 Ill. App. 3d 215, and the cause was remanded for further proceedings. Following remand, the court sentenced defendant to a term of 30 years’ imprisonment for the original aggravated criminal sexual assault conviction. However, the trial court vacated defendant’s conviction based upon his guilty plea and transferred the cause to a different judge for trial. Defendant raises two issues on appeal: (1) whether the trial court exceeded the appellate court’s mandate in vacating his conviction based upon the guilty plea; and (2) whether the sentence imposed was excessive.

On April 8, 1987, defendant was charged by indictment with nine counts of aggravated criminal sexual abuse and four counts of aggravated criminal sexual assault against six different victims. Defendant’s motion for severance was granted, the court ruling that the charges relating to each victim would be tried separately. Following a bench trial, the circuit court found defendant guilty of aggravated criminal sexual assault and aggravated criminal sexual abuse against six-year-old D.R. The testimony presented at trial is summarized in our previous opinion (see Bosley, 197 Ill. App. 3d at 217-18) and will not be repeated in detail here. Essentially, testimony was presented that D.R. and her brothers and sisters lived with their blind grandmother. Defendant was pastor of the church that D.R.’s family attended. D.R. testified that defendant rubbed her vagina on several occasions when defendant was driving her family to church, that defendant engaged in vaginal intercourse with her on one occasion when her family was assisting defendant in cleaning the church, and that defendant forced her to put her mouth on his penis on one occasion when defendant was driving her family to the hospital.

Six days after defendant’s first trial, the parties represented to the court that they had reached a negotiated plea agreement regarding count V of the indictment that charged the aggravated criminal sexual assault of C.R., D.R.’s 11-year-old sister. In exchange for defendant’s plea of guilty to that offense, the State agreed that defendant would not receive consecutive sentences and that the remaining charges against him would be nol-prossed. The circuit court accepted the plea agreement limiting its discretion in sentencing to concurrent sentences.

A presentence investigation report was prepared indicating that defendant was 55 years old. He had been convicted of the offense of indecent liberties in the State of Washington in 1966. Defendant had numerous convictions of traffic offenses in Illinois and Wisconsin, including a conviction in Wisconsin of the discharge of a firearm into a vehicle. Defendant’s psychological evaluation stated that his reality testing seemed questionable and that he appeared out of touch with his own as well as others’ feelings. The evaluation noted that defendant clearly saw the young girls he victimized as sexual and that although defendant “has positive feelings about children, he elevates them to adult states [sic] and looks to them to meet his needs.” Finally, the evaluation indicated the possibility that defendant “may have been victimized himself at least on two occasions as a child, though he denied ever being molested.”

At defendant’s sentencing hearing on October 21, 1987, the circuit court found defendant eligible for an extended-term sentence pursuant to sections 5—8—2 and 5—5—3.2(c) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—8—2, 1005—5—3.2(c)) and sentenced defendant to three concurrent 55-year terms of imprisonment. Defendant filed a motion to withdraw his guilty plea, which was denied, and then filed a notice of appeal.

In his first appeal, defendant argued that his extended-term sentences were improperly imposed. We agreed based upon the fact that subsection (c) of section 5—5—3.2 of the Code, which provides that an extended-term sentence may be imposed upon an offender “convicted of aggravated criminal sexual assault where the victim was under 18 years of age at the time of the commission of the offense” (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(c)), was not effective until July 1, 1987, after the dates defendant committed his offenses. (Bosley, 197 Ill. App. 3d at 220-21.) We also noted that the 55-year sentence imposed for the aggravated criminal sexual abuse conviction was clearly improper. Bosley, 197 Ill. App. 3d at 221.

Addressing defendant’s excessive sentence arguments as likely to reoccur on remand, however, we found the circuit court had committed no reversible error. The trial court’s consideration of an improper aggravating factor did not contribute significantly to the length of the sentences imposed, and defendant’s other contentions lacked merit. (Bosley, 197 Ill. App. 3d at 222.) Numerous other factors existed in aggravation, including defendant’s prior criminal activity and the legislature’s conclusion that such offenses are “particularly egregious.” (Bosley, 197 Ill. App. 3d at 222-23.) The circuit court’s comment, in discussing defendant’s rehabilitative potential, regarding the rate of recidivision for sex offenders who receive no counseling was “logically prompted in this instance by reason of the defendant’s conviction 20 years earlier for indecent liberties and was of no untoward consequence in the exercise of its sentencing discretion.” (Bosley, 197 Ill. App. 3d at 222.) Finally, we rejected defendant’s contention that the circuit court gave no consideration to the defendant’s psychological evaluation, including that part of the evaluation stating that defendant may have been victimized himself as a child, because the circuit court expressly indicated that it considered the report. Bosley, 197 Ill. App. 3d at 223.

We concluded our opinion with the statement:

“For the reasons expressed above, the defendant’s sentences are reversed, and the cause is remanded for further proceedings consistent with this opinion.”

The mandate to the circuit court of Lake County, which issued July 13, 1990, similarly stated that “defendant’s sentences are reversed, and the cause is remanded for further proceedings consistent with the views expressed in the opinion filed herein.”

An updated presentence investigation report was therefore prepared, and a new sentencing hearing was held on September 7, 1991. At the beginning of the hearing, the circuit court noted that, based upon the appellate court’s mandate, defendant’s cause was back to the same status as prior to the original sentencing hearing and that the circuit court had accepted the plea agreement, which provided that a consecutive sentence could not be imposed, with the understanding that defendant was eligible for an extended-term sentence. Therefore, after the appellate court determined that defendant could not be sentenced to an extended term in the Department of Corrections, the circuit court had the option to reject the plea agreement.

At defendant’s sentencing hearing, his sister testified that defendant was always very helpful to her, her children and her grandchildren. Defendant testified that he had been working while in prison, had not had any tickets or violations in prison and had been participating in Bible classes and religious gatherings.

The circuit court then discussed the evidence presented at trial and at the sentencing hearing and the aggravating factors to consider. It concluded that defendant was a danger to children and sentenced him to a term of 30 years for the aggravated criminal sexual assault conviction entered after trial. It vacated the aggravated criminal sexual abuse conviction. The circuit court also stated, regarding defendant’s guilty plea to the other count of aggravated criminal sexual assault, “I find that the negotiation presented with a 30 years limitation is unconscionable, and I reject it as far as the sentencing, itself, was concerned.” The circuit court then vacated defendant’s conviction of that offense, reinstated the charges against defendant that had been nol-prossed by the State as part of the plea agreement, and transferred the cause to another judge.

Defendant filed a notice of appeal regarding his sentence and later filed a motion to reconsider the rejection of his guilty plea. Defendant argued that the circuit court did not have the authority to reject his guilty plea as it was revested with jurisdiction by the appellate court for the limited purpose of resentencing defendant. The circuit court denied the motion and informed defense counsel that the order was not final and appealable because the cause was assigned to another judge for trial.

On November 21, 1990, prior to such trial defendant filed a motion to dismiss count V of the indictment against him. Defendant argued that the circuit court refused to resentence defendant regarding that charge as required by the appellate court’s mandate and that “[fjurther prosecution on Count V of the indictment is barred by the double jeopardy clauses of both the U.S. and Illinois constitutions.” The judge denied this motion, and defendant filed a second notice of appeal. We granted defendant’s motion to consolidate his two appeals.

Defendant first argues that his motion to dismiss count V of the indictment should have been granted because the circuit court did not have jurisdiction to vacate defendant’s conviction based upon his previously accepted guilty plea. Defendant’s jurisdictional statement notes that the appeal from the order denying his motion to dismiss is brought pursuant to Supreme Court Rule 604(f) (134 Ill. 2d R. 604(f)). This rule provides that a “defendant may appeal to the Appellate Court the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy.” 134 Ill. 2d R. 604(f).

The main thrust of defendant’s argument is that the circuit court exceeded the mandate issued by the appellate court when it vacated defendant’s conviction based upon his guilty plea, reinstated the charges against him that had been nol-prossed by the State, and then transferred the cause to a different judge for trial. Defendant argues that the circuit court acted without jurisdiction thereby requiring that its order be reversed and vacated. Defendant then argues, in three sentences and without explaining why one follows the other, that count V should therefore be dismissed on the basis of double jeopardy.

The State concedes that the circuit court exceeded the scope of our mandate when it vacated defendant’s conviction. The State, however, questions our jurisdiction to remedy the matter as the circuit court’s actions clearly did not implicate double jeopardy concerns, and defendant has appealed only from the circuit court’s denial of his motion to dismiss based upon double jeopardy pursuant to Rule 604(f) (134 Ill. 2d R. 604(f)). Because of such posture of the case, it argues that this court can only affirm the denial of defendant’s motion to dismiss.

We agree with defendant and the State that the circuit court exceeded our mandate when it vacated defendant’s conviction of aggravated criminal sexual assault based upon his plea of guilty to count V of the indictment. When “a reviewing court issues a mandate, it vests the trial court with jurisdiction to take only such action as conforms to that mandate.” (People ex rel. Daley v. Schreier (1982), 92 Ill. 2d 271, 276; see also People v. Lucas (1991), 215 Ill. App. 3d 148, 153.) If specific directions are not given by the reviewing court, the trial court must determine from the nature of the case what further proceedings are proper and consistent with the opinion. (People v. Abata (1988), 165 Ill. App. 3d 184, 187.) “When a mandate issues which remands a cause to the trial court for proceedings consistent with the opinion issued by the reviewing court, the trial court must look to the opinion for directions and will of necessity construe the language of the opinion when needed.” (People v. Palmer (1992), 148 Ill. 2d 70, 81.) Any order issued by a trial court outside of the scope of the mandate is void for lack of jurisdiction (Schreier, 92 Ill. 2d at 276-77) and must be reversed and vacated (People v. Palmer (1990), 193 Ill. App. 3d 745, 749, aff’d in part and rev’d in part on other grounds (1992), 148 Ill. 2d 70).

In this cause, the appellate court mandate did not specifically state that the cause was remanded for resentencing. (Cf. Schreier, 92 Ill. 2d at 274 (order of supreme court stated that “cause is remanded to the circuit court with directions to re-sentence defendants in accordance with law” (emphasis omitted)).) However, we did state that only defendant’s sentences were reversed and that the cause was remanded for further proceedings consistent with the opinion. Defendant’s convictions were therefore left intact, and the only thing for the circuit court to do, based upon the nature of the case and consistent with the opinion, was to resentence defendant for the offenses of which he remained convicted. Therefore, the circuit court lacked jurisdiction to vacate defendant’s conviction based upon his plea of guilty to count V of the indictment.

As the circuit court’s order was void, the order could not violate the constitutional guarantee against double jeopardy (U.S. Const., amend. V; Ill. Const. 1970, art. I, §10). We do not agree with the State, however, that we lack jurisdiction to vacate the trial court’s order and must simply affirm the order appealed from that denied defendant’s motion to dismiss based upon double jeopardy. Although it is fairly apparent that defendant was using his motion to dismiss merely as a vehicle to obtain appellate review, we nevertheless have jurisdiction to consider the issues raised by defendant on appeal.

The circuit court’s order that vacated defendant’s conviction was beyond the scope of this court’s mandate and void. (See Schreier, 92 Ill. 2d at 276-77.) A void order may be attacked at any time, either directly or collaterally (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309; In re T.E. (1981), 85 Ill. 2d 326, 335) and may always be challenged on appeal (People v. Elliott (1992), 225 Ill. App. 3d 747, 755; In re Franklin (1976), 42 Ill. App. 3d 129, 133). As the order appealed from was based upon the prior void order, the timeliness of the appeal is not at issue. See In re J.E. (1992), 228 Ill. App. 3d 315, 317-18.

The circuit court’s order vacating defendant’s conviction was entered without jurisdiction and was void, and we therefore vacate the order. The cause is remanded for resentencing for that conviction. The sentence should be imposed in accordance with our previously issued mandate and the plea agreement that was the basis of defendant’s conviction.

Defendant also argues that the 30-year sentence imposed is excessive and should be reduced. Defendant contends that the circuit court’s conclusion that defendant had absolutely no possibility of rehabilitation is not supported by the record. Defendant also again complains that the circuit court gave inadequate consideration to the psychological evaluation of defendant. Defendant places special emphasis on the statement in the evaluation that defendant may have been victimized himself as a child. Defendant notes that there was “no mention of defendant’s sexually troubled youth” by the circuit court and asserts that a troubled home situation can be a factor worthy of mitigating consideration.

A circuit court’s sentencing determination is entitled to great deference. (People v. Illgen (1991), 145 Ill. 2d 353, 379.) When a sentence is within the statutory limits, it should be disturbed only if the circuit court abused its discretion. (See People v. Perruquet (1977), 68 Ill. 2d 149, 153.) As long as the circuit court “does not consider incompetent evidence, improper aggravating factors, or ignore pertinent mitigating factors, it has wide latitude in sentencing a defendant to any term within the statutory range prescribed for the offense.” (People v. Hernandez (1990), 204 Ill. App. 3d 732, 740.) It is appropriate for a circuit court to give weight to the seriousness of the offense. (See People v. Smith (1991), 214 Ill. App. 3d 327, 341.) In fact, the seriousness of the offense has been called the most important factor to consider in imposing sentence. Hernandez, 204 Ill. App. 3d at 740.

Arguments very similar to those raised here were rejected on defendant’s prior appeal. Defendant has not persuaded us that the trial court’s conduct at the second sentencing hearing was substantially different from that at the first sentencing hearing. Therefore, defendant cannot establish error based upon arguments we have already rejected.

Additionally, the psychological evaluation included only a brief mention that defendant “may have” been victimized as a child and further stated that defendant denied being molested. Defendant presented no evidence at either sentencing hearing that he was in fact victimized as a child or that he had a troubled childhood. Therefore, there was little evidence that defendant had a “sexually troubled youth” worthy of consideration as a mitigating factor. The trial court adequately considered the appropriate sentencing factors, including the seriousness of the offense, and the sentence imposed was not an abuse of the trial court’s discretion.

For the foregoing reasons, we affirm the sentence imposed for defendant’s conviction of aggravated criminal sexual assault entered after trial but vacate that portion of the trial court’s judgment that vacated defendant’s conviction of aggravated criminal sexual assault entered pursuant to his guilty plea. The cause is remanded for re-sentencing for that offense in accordance with our previously issued mandate and in conformance with the plea agreement that formed the basis of defendant’s conviction.

Affirmed in part; vacated in part and remanded with directions.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE BOWMAN

text:
    RAGO MACHINE PRODUCTS, INC., Plaintiff-Appellant, v. SHIELDS TECHNOLOGIES, INC., Defendant-Appellee.
    Second District
    No. 2—91—0019
    Opinion filed August 11, 1992.

      Donald C. Stinespring, of Donald C. Stinespring & Associates, of Richmond, and Burton A. Gross, of Chicago, for appellant.
    James A. Campion and R. Mark Gummerson, both of Holmstrom & Kennedy, of Crystal Lake, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

The present appeal arises out of plaintiff’s, Rago Machine Products, Inc.’s, breach of contract action against defendant, Shields Technologies, Inc. We dismiss the appeal for lack of jurisdiction.

On appeal, plaintiff purports to raise the following issues: (1) whether the trial court abused its discretion in striking plaintiff’s untimely response to defendant’s Rule 216 (134 Ill. 2d R. 216) request to admit; (2) whether defendant waived its right to rely on the request to admit; (3) whether the trial court erred in invoking the parol evidence rule to bar certain evidence; (4) whether the trial court erred in refusing to admit certain documents; and (5) whether the trial court’s award of damages was adequately supported by the record. However, our ultimate disposition of this case makes it necessary to consider only the following issue: whether plaintiff’s appeal must be dismissed for lack of jurisdiction.

A brief chronological review of the facts is necessary to a clear understanding of our resolution of this issue. On December 1, 1986, plaintiff filed its complaint seeking damages for defendant’s alleged failure to pay the balance due under a contract for certain products which had been ordered by defendant from plaintiff. Defendant thereafter filed its counterclaim and subsequent amendments thereto, alleging that plaintiff failed to provide the requisite number of complete machine tool sets called for in the contract, that the tool sets failed to conform to contract dimensions and specifications, and that plaintiff failed to make delivery of the sets in a timely manner.

On March 20, 1989, the trial court entered an order striking plaintiff’s untimely and unverified response to defendant’s request to admit facts. On September 11, 1990, following the presentation of evidence on plaintiff’s complaint, the court entered an order granting judgment in favor of defendant and against plaintiff on plaintiff’s complaint. On December 6, 1990, the trial court entered an order granting judgment in favor of defendant and against plaintiff on defendant’s counterclaim.

Twenty-seven days later, on January 2, 1991, plaintiff filed a notice of appeal. The notice stated that plaintiff was appealing from the trial court’s orders of October 31, 1990, and December 6, 1990, and in addition specifically raised the five issues listed at the outset of this order. The notice did not state that plaintiff was appealing from the trial court’s orders of March 20, 1990, or September 11, 1990. The record before us contains no order dated October 31, 1990. We also note that, although no such document was filed in the trial court or included in the record on appeal, plaintiff has included in the appendix to its brief an “Amended Notice of Appeal” which purports to also seek appeal from the March 20 and September 11 orders. This “Amended Notice of Appeal” also deletes reference to the nonexistent October 31 order.

On the same day that plaintiff filed its notice of appeal, January 2, 1991, defendant filed a motion for prejudgment interest pursuant to section 2 of the Interest Act (Ill. Rev. Stat. 1989, ch. 17, par. 6402). Plaintiff did not withdraw its notice of appeal, and the appeal proceeded simultaneously with the motion. On January 14, 1991, the trial court denied defendant’s motion for prejudgment interest.

On July 8, 1991, defendant filed a motion to dismiss plaintiff’s appeal or, in the alternative, to strike portions of plaintiff’s brief and argument. In its motion defendant argues, inter alia, that since plaintiff failed to file a notice of appeal within 30 days of a “timely filed post-trial motion directed against the judgment,” plaintiff’s appeal must be dismissed pursuant to Supreme Court Rule 303 (134 Ill. 2d R. 303). On July 16, 1991, this court ordered that defendant’s motion to dismiss the appeal, along with plaintiff’s response thereto, if any, be taken with the case.

We begin our analysis with a discussion of Supreme Court Rule 303, which governs the timing of appeals from final judgments of the circuit court. (134 Ill. 2d R. 303.) Subsection (a)(l) of that rule states that a notice of appeal must be filed within 30 days after entry of the final judgment appealed from, or “if a timely post-trial motion directed against the judgment is filed, *** within 30 days after the entry of the order disposing of the last pending post-trial motion.” (134 Ill. 2d R. 303(a)(l).) Subsection (a)(2) states that a notice of appeal filed before entry of an order disposing of the last pending post-trial motion has no effect and must be withdrawn by the party who filed it. This is so whether the post-trial motion was filed before or after the notice of appeal. A new notice of appeal must be filed within 30 days after entry of the order disposing of the last pending post-trial motion. 134 Ill. 2d 303(a)(2).

As noted above, defendant argues that its motion for prejudgment interest was a post-trial motion which extended the time for filing a notice of appeal from the trial court’s judgment. It claims that the 30-day period for filing a notice of appeal did not begin to run until January 14, 1992, the date the trial court denied the prejudgment interest motion. Defendant claims that plaintiff’s failure to file another notice of appeal within 30 days of the court’s January 14, 1991, order left this court without jurisdiction to hear the merits of the case. Plaintiff has not responded to defendant’s jurisdictional arguments, either in a reply brief or by way of a response to the motion to dismiss the appeal.

We must first consider whether defendant’s motion for prejudgment interest qualifies as a post-trial motion. Section 2 of the Interest Act provides:

“Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money lent or advanced for the use of another; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance[;] on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.” Ill. Rev. Stat. 1989, ch. 17, par. 6402.

Section 2—1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1203) authorizes the filing of post-trial motions in nonjury cases. That section provides:

“(a) In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1203(a).)

In all nonjury cases, therefore, for a motion to qualify as a “post-trial motion,” it must specifically request one of the forms of relief enumerated in subsection (a) of section 2—1203. (Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 461.) We believe it is clear that a motion for prejudgment interest under the Interest Act does not seek a rehearing, retrial or vacation of the trial court’s judgment. Moreover, the supreme court has held that the “other relief” referred to in section 2—1203(a) must be similar in nature to the other forms of relief specified in this section. (Marsh, 138 Ill. 2d at 462.) Again, we do not believe that defendant's motion for prejudgment interest requested the trial court to grant any relief from the December 6, 1990, order.

Even if we were to construe defendant’s motion for prejudgment interest as a motion to modify the judgment, it was not a post-trial motion within the meaning of Supreme Court Rule 303(a) because it was not a post-trial motion “directed against the judgment.” (134 Ill. 2d R. 303(a).) Defendant in this case filed its motion for prejudgment interest after judgment was entered on plaintiff’s complaint and defendant’s counterclaim. Although the motion related to interest allegedly due and owing, based on the judgment amount awarded on the counterclaim, it did not attack that original judgment entered in defendant’s favor.

Our conclusion that defendant’s motion for prejudgment interest was not a “post-trial motion” does not, however, complete our analysis of whether plaintiff’s appeal must be dismissed. We must still determine what effect the filing of the motion has on the appealability of the underlying judgments. In this regard, we must address the requirements of Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Supreme Court Rule 304(a) governs the timing of appeals from final orders not disposing of all matters presented to the trial court. (134 Ill. 2d R. 304(a).) The rule provides as follows:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” 134 Ill. 2d R. 304(a).

Under Rule 304(a), therefore, if a trial court’s order disposes of fewer than all of the claims in an action, the court must make an express written finding that there is no just reason for delaying enforcement or appeal. Without the Rule 304(a) finding, a final order disposing of fewer than all of the claims is not an appealable order and does not become appealable until all of the claims have been resolved. (Marsh, 138 Ill. 2d at 464.) It has been stated that a “claim” is any right, liability or matter raised in an action. If an order does not resolve every right, liability or matter raised, it must contain an express written finding that there is no just reason for delaying enforcement or appeal. Otherwise, the order is not appealable. 138 Ill. 2d at 465.

We conclude that a motion for prejudgment interest constitutes a separate “claim” for purposes of Supreme Court Rule 304(a). (Montgomery Ward & Co. v. Wetzel (1981), 98 Ill. App. 3d 243, 249.) In Wetzel, the court held that a trial court’s award of prejudgment interest was a ruling on a separate matter rather than a modification of an earlier judgment. (Wetzel, 98 Ill. App. 3d at 249-50.) In addition, the Wetzel court found that the trial court properly retained jurisdiction to dispose of the pending issue of prejudgment interest where the original order appealed from contained the requisite Rule 304(a) finding that there was no just reason for delaying enforcement or appeal from that order. (98 Ill. App. 3d at 250.) It is also clear that the request for prejudgment interest was a matter involved in the action, it was a possible right of the party requesting prejudgment interest, and it was a possible liability of the party opposing prejudgment interest. Marsh, 138 Ill. 2d at 465.

Accordingly, absent a valid Rule 304(a) finding, the judgments entered by the trial court denying plaintiff’s breach of contract claim and granting judgment in favor of defendant on its counterclaim were not appealable until disposition of defendant’s claim for prejudgment interest. In this regard, we must next consider whether the trial court’s December 6, 1990, order complied with the express written finding requirements of Rule 304(a). The order stated that judgment was entered in favor of defendant and against plaintiff and further found that “there is no just reason to delay the enforcement of this Order.”

This court considered the requirements of Rule 304(a) in Arachnid, Inc. v. Beall (1991), 210 Ill. App. 3d 1096, and Pettie v. Williams Brothers Construction, Inc. (1991), 216 Ill. App. 3d 801. In Beall, the order appealed from included a finding of the court “that its prior order of April 24, 1990, was ‘a final judgment as to the various causes of action set forth therein’ and was ‘final as to fewer than all the claims set forth in the Counterclaim; there being no just reason for delaying appeal therefrom, the Court so orders.’ ” (Beall, 210 Ill. App. 3d at 1101.) The order appealed from in Pettie stated, “[pursuant to Supreme Court Rule 304(a), there is no just reason for delaying appeal of the order of October 5, 1990.” (Pettie, 216 Ill. App. 3d at 803.) In both Beall and Pettie, we stated that “ ‘for a trial court’s finding under Rule 304(a) to confer jurisdiction to a reviewing court, the finding must address both prongs: enforceability and appealability; moreover, the finding must also track the language expressly stated in the rule.’ ” (Pettie, 216 Ill. App. 3d at 803, quoting Beall, 210 Ill. App. 3d at 1102.) In both instances, therefore, the cases were dismissed for failure to track the express language of the rule. Pettie, 216 Ill. App. 3d at 804; Beall, 210 Ill. App. 3d at 1103.

The trial court’s finding in the instant case, “that there is no just reason to delay the enforcement of this Order,” tracks the express language of Rule 304(a) no better than the orders found to be insufficient in Pettie and Beall. Since the court’s finding did not include the word “appeal,” it fails to satisfy the specific requirements of Rule 304(a). As such, we must dismiss plaintiff’s appeal.

As a final matter, we wish to point out that plaintiff has also failed, at least in part, to comply with Supreme Court Rule 341(e)(4)(ii) (134 Ill. 2d R. 341(e)(4)(ii)), which provides in pertinent part as follows:

“(ii) In a case appealed to the Appellate Court, a brief statement or explanation under the heading ‘Jurisdiction’ of the basis for appeal, e.g., whether as a final judgment under Rule 301 or Rule 304(a) or (b); or as an interlocutory appeal pursuant to Rule 306, Rule 307 or Rule 308.” (134 Ill. 2d R. 341(e)(4)(ii).)

Here, plaintiff’s jurisdictional statement simply listed the orders from which it purported to appeal. It did not specify any rule under which appellate jurisdiction supposedly attached. The purpose of the jurisdictional statement is to set forth the jurisdictional basis for the appeal. Here, plaintiff has not provided us with a proper jurisdictional basis, nor has it addressed the merits of the questions raised by defendant in regard to this court’s jurisdiction. When presented with a similar situation in Dillard, v. Kean (1989), 183 Ill. App. 3d 28, this court stated that we were not “required to do plaintiff’s homework for him and then grade it as well.” 183 Ill. App. 3d at 31.

In any event, for the reasons stated above, we conclude that plaintiff’s appeal must be dismissed.

Appeal dismissed.

GEIGER and UNVERZAGT, JJ., concur.


text:
    ROY A. RALLS, Plaintiff-Appellant, v. THE VILLAGE OF GLENDALE HEIGHTS et al., Defendants-Appellees.
    Second District
    No. 2—91—0925
    Opinion filed August 11, 1992.
    Rehearing denied September 21, 1992.

      James P. Costello, Francis G. Libbe, and Sandra L. Bucha, of James Paul Costello, Ltd., of Chicago, for appellant.
    William J. Wylie, Thomas J. Laz, and Stephen A. Rehfeldt, all of Wylie, Mulherin, Rehfeldt & Varchetto, P.C., of Wheaton, for appellees Village of Glendale Heights and Concrete Structures of the Midwest, Inc.
    James T. Ferrini, of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, for appellee Advance Mechanical Systems.
    William H. Weir, of Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir & Johnson, P.C., of Elgin, for appellee Strand Associates, Inc.
    Robert G. Black, Thomas A. Brabec, and Douglas J. Esp, all of Hinshaw & Culbertson, of Lisle, and D. Kendall Griffith, of Hinshaw & Culbertson, of Chicago, for appellee Doetsch Brothers.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Roy A. Ralls, appeals the order of the circuit court granting defendants’ motions for summary judgment of both Ralls’ claim under the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) and his claim for common-law negligence based on injuries he sustained when he fell on a snow-covered earthen incline at a construction site. Ralls asserts that the circuit court erred in finding as a matter of law that: (1) the earthen incline was neither a support nor was Ralls engaged in ultrahazardous activity at the time of his injury as required for application of the Structural Work Act; and (2) defendants owed no duty to Ralls, which defeated his claim for common-law negligence. We affirm in part and reverse in part.

Sometime prior to February 1988, defendant Village of Glendale Heights (owner) contracted with defendant Concrete Structures of the Midwest, Inc. (general contractor), for the construction of a sewage treatment plant. The construction was designed and engineered by defendant Strand Associates, Inc. (engineer), and defendant Doetsch Brothers (excavator) was the subcontractor for the excavation work. Ralls was the jobsite foreman in charge of the work for the processed plumbing subcontractor, which supplied specialty piping for carrying fluids other than water. As the foreman, Ralls had been at the site daily for seven to eight months and had the authority to stop his crews’ work if the conditions were unsafe.

The engineer designed, among others, the structure referred to as the blower building, which was the site of Ralls’ injuries and which had two entrances. The north entrance was at ground level, but the south entrance was six to eight feet above ground level due to a temporary construction road on the south side of the building. The temporary construction road was below the planned eventual grade to allow access to the foundations of other buildings at the site during construction. The excavator had, however, backfilled the foundation of the blower building six months before Ralls’ accident to prevent frost damage. In so doing, the excavator had constructed an earthen incline to the south entrance, as well as a two- to three-foot-wide earthen pathway around the entire perimeter of the building. Deposition evidence presented to the trial court estimated the incline to slope at an angle between 45 and 60 degrees over a space of six to eight feet. After its completion, the earthen incline was routinely used by workmen to reach the south entrance of the blower building. Both the incline and perimeter path were smooth and free from ruts in February 1988.

On February 4, 1988, Ralls and a co-worker were performing tests designed to discover leaks in pipes located in another building. Ralls was to turn on the water to fill the pipes, which he would then shut off when the pipe was full upon a signal from his co-worker. Overfilling of the pipes was to be avoided because freezing of the excess water would damage the pipes. The controls for the water were located in the blower building.

Because the north entrance of the blower building was blocked by masoners, Ralls’ only access to the water controls was via the south entrance. Therefore, Ralls used the earthen incline to enter the south entrance of the blower building. However, the perimeter path from the north entrance could have been used to reach the south entrance.

On the day of the accident, the earthen incline was covered with five to six inches of snow with the exception of an 18-inch path that had been packed down by prior workers using the incline to reach the south entrance of the blower building. Ralls’ hands were empty as he walked up the incline, entered the blower building, and turned on the water. He paid particular attention to his footing because the pathway was snow packed and icy. Although Ralls could have waited on the perimeter path outside the south entrance, he instead descended the incline to wait for the shut-off signal. Ralls then again began to walk up the incline when he fell to his knees. At his deposition, Ralls testified that, although in his opinion the earthen incline was not dangerous, he slipped on the snow and ice on the footpath on the incline after taking a few steps. As a result of the fall, Ralls suffered injuries to both his knees, which eventually required several surgeries and which caused him ongoing pain.

Ralls brought this action against all defendants alleging in one count under the Structural Work Act that the earthen incline was a support and that he was engaged in an ultrahazardous activity of the type typically occurring at a construction site within the contemplation of the Structural Work Act. In a second count, Ralls claimed that the defendants owed him a duty to provide a safe system of ingress to and egress from the south entrance of the blower building and, therefore, were liable under a theory of common-law negligence for his injuries.

All defendants moved for summary judgment as to both counts. The circuit court eventually granted those motions as to all defendants, and Ralls now appeals. Ralls asserts that the trial court erred as a matter of law in finding that the earthen incline was a mere pathway and not a support and in finding that Ralls’ use of the pathway was not the ultrahazardous type of construction activity encompassed by the Structural Work Act. Ralls also asserts that the court erred as a matter of law in finding that the defendants owed no duty to Ralls.

Summary judgment is appropriate where no issue of genuine fact is present and the moving party is entitled to judgment as a matter of law. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421.) However, summary judgment should be awarded with caution so that the right to present a case in which a material dispute exists and so that the right to a trial by jury are not preempted. (Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842.) It is a drastic means of resolving litigation and should only be allowed when the right of the moving party to judgment is clear and free from doubt. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271.) Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); In re Estate of Whittington (1985), 107 Ill. 2d 169, 176-77.) However, the evidence in the record must be construed strongly against the movant (Hagy, 190 Ill. App. 3d at 842; Schroth v. Norton Co. (1989), 185 Ill. App. 3d 575, 577), and, although the party opposing summary judgment need not prove his case at this preliminary stage, he must present some factual basis that would arguably entitle him to a judgment under the applicable law (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 939). If undisputed facts permit conflicting infer-enees, summary judgment should be denied. (Loyola Academy, 146 Ill. 2d at 272.) Because of this extreme standard, a trial court is without discretion to grant a motion for summary judgment. Loyola, 146 Ill. 2d at 272.

The Structural Work Act provides protection to those workers who are engaged in extrahazardous work. (Lafata v. Village of Lisle (1990), 137 Ill. 2d 347, 353.) It includes not only devices used to support workers, but those used to support materials and applies to the failure to provide such support. (Meyer v. Caterpillar Tractor Co. (1990), 135 Ill. 2d 1, 13.) However, although the Structural Work Act should be liberally construed to provide protection to workers engaged in particularly hazardous activities, it was not intended to cover all construction work. (Lafata, 137 Ill. 2d at 354; Vuletich, 117 Ill. 2d at 422.) Thus, every device that elevates a worker is not a “support” within the Structural Work Act. (Vuletich, 117 Ill. 2d at 422.) Nor is every routine activity within the protection of the Structural Work Act merely because it fortuitously occurs at a construction site. Vuletich, 117 Ill. 2d at 423.

To sustain a cause of action under the Structural Work Act, a plaintiff must establish that he was: (1) involved in a construction activity, (2) with reference to a structure, (3) using a scaffold or other mechanical device, all of which must fit within the definitions and intended coverage of the Structural Work Act. (Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 488.) The plaintiff must then establish that (4) the scaffold or device was unsafe, (5) the unsafe condition caused the plaintiff’s injury, (6) the defendant was in charge of the work at the time of the injury, and (7) that the defendant willfully violated the Structural Work Act. Smith, 176 Ill. App. 3d at 488.

Whether a device is a scaffold or other mechanical device within the definition of the Structural Work Act is a question of law to be determined by the court. (Vuletich, 117 Ill. 2d at 421.) Three criteria are used to determine if a particular device is within the Structural Work Act, which are the intended use of the device at the time of the injury, the connection between the injury and the hazardous nature of the device, and the intent of the Structural Work Act to eliminate the type of danger involved. Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App. 3d 293, 297-98.

However, in Vuletich, our supreme court recognized the distinction between a support, specifically used to accomplish some construction related activity, and a mere pathway. (Vuletich, 117 Ill. 2d at 422-23; see also Latronica v. Commonwealth Edison Co. (1988), 171 Ill. App. 3d 202, 205-06 (drilling rig not support when used as exit); Bolsmo v. Mark V Roofing Co. (1989), 190 Ill. App. 3d 334, 337 (roof not support when used as access to exhaust fan); Choi v. Commonwealth Edison Co. (1984), 129 Ill. App. 3d 878, 881 (upper story floor not support when plaintiff merely carrying construction materials across it).) Had Ralls been using a stairway to enter the blower building, Vuletich would be completely indistinguishable. However, even the minor distinction between a stairway and earthen incline in this case does not support Ralls' claim. The intended use of a stairway, both in Vuletich and generally, is to allow access. In contrast, the earthen incline in this instance was constructed to protect the foundation of the blower building from freezing and was only incidentally used as an access to the southern entrance as a matter of convenience. Moreover, because the earthen incline was a mere pathway and not a device within the Structural Work Act, defendants’ alleged failure to provide handrails cannot be deemed a failure to provide a support that is actionable under the Structural Work Act. Carnevale v. Inland Ryerson Building Systems (1988), 169 Ill. App. 3d 740, 747 (failure to provide support actionable only if support, if provided, would have been within Act).

Ralls cites Keyser v. Metropolitan Sanitary District (1987), 165 Ill. App. 3d 696, to support his contention that the earthen incline was a support within the meaning of the Structural Work Act. However, Keyser is distinguishable.

It is the use of the device that is dispositive of whether the Structural Work Act provides coverage. (Vuletich, 117 Ill. 2d at 422.) Although the support at issue in Keyser was an earthen pile, the plaintiff was using the pile as a support to reach electric lights he was removing from the walls of the deep tunnel project. If such pile had not been present, the plaintiff would have used a ladder or other means of elevating himself to a height to allow the removal of the lines. Clearly, in Keyser the dispositive use of the device was as a support, which brought it within the coverage of the Structural Work Act.

Although Ralls also cites our recent decision in Heino v. Mellon Stuart Co. (1991), 222 Ill. App. 3d 147, that decision merely recognized that the determination of whether a particular device is within the Structural Work Act is controlled by the use to which such device is put. In Heino, the plaintiff used the third-story floor/second-story roof as a scaffold from which to remove debris from a building under construction. The floor/ceiling was, therefore, used as a scaffold notwithstanding its attachment to a permanent structure. Heino, 222 Ill. App. 3d at 150-51.

Ralls also asserts that the court erred in finding his walking up the earthen incline was not the type of ultrahazardous activity that the Structural Work Act was designed to protect. Once again, it is the use of the device that is dispositive of whether the Structural Work Act applies. (Vuletich, 117 Ill. 2d at 422.) Ralls’ own pleading admits that he was using the earthen incline for ingress and egress, which are neither activities peculiar to construction sites nor ultrahazardous. Thus, the circuit court did not err in finding as a matter of law that the earthen incline was a mere pathway and not a support or in finding that Ralls’ use of the earthen incline for purposes of ingress and egress was not an ultrahazardous activity within the meaning of the Structural Work Act.

We now turn to Ralls’ assertion that the circuit court erred as a matter of law in finding that defendants owed no duty to Ralls. To prevail on a claim of negligence, a plaintiff must prove the existence of a duty flowing from the defendant to the plaintiff that is breached and that proximately results in injury to the plaintiff. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140.) The existence of a duty is a question of law, and, therefore, the existence of such duty is appropriate for resolution by the circuit court on a motion for summary judgment. Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 45; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525.

Ralls’ third amended complaint asserted that the defendants failed to provide an adequate means of ingress and egress to the buildings at the construction site, failed to provide ladders or steps and handrails to accommodate such access, and failed to allow access to the blower building through the level north entrance. In finding that defendants owed no duty to Ralls as a matter of law, the trial court focused solely on the duties imposed on a landowner or possessor of land by virtue of such status. (See Ziemba, 142 Ill. 2d at 49 (status as landowner is basis of duty).) The ice- and snow-packed footpath on the earthen incline that was created by the passage of other workers was the result of the prior days’ snowfall, and Ralls was aware of the condition of the footpath. Thus, there was nothing to indicate that the accumulation was anything other than natural, or that the incline was not open and obvious. Therefore, the trial court found that defendants, as the landowner or possessors of land, owed no duty to Ralls to prevent injury caused by natural accumulations of snow or ice, or from the open and obvious incline. (See Harkins v. System Parking, Inc. (1989), 186 Ill. App. 3d 869, 872-73 (owner has no duty to an invitee to remove natural accumulations of ice and snow); Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 437 (possessor of land has no duty to warn or take precautions against known and obvious conditions).) However, although the snow and ice was a natural accumulation, the circuit court neglected to consider that the known and obvious risk principle is not a per se rule relieving a defendant of the duty of reasonable care. Ward, 136 Ill. 2d at 147.

A possessor of land remains liable for known and obvious conditions on his land when “ ‘the possessor should anticipate the harm despite such knowledge or obviousness.’ ” (Ward, 136 Ill. 2d at 149, quoting Restatement (Second) of Torts §343A (1965).) “The only sound explanation for the ‘open and obvious’ rule must be either that the defendant in the exercise of reasonable care would not anticipate that the plaintiff would fail to notice the condition, appreciate the risk, and avoid it [citation], or perhaps that reasonable care under the circumstances would not remove the risk of injury in spite of foreseeable consequences to the plaintiff.” (Ward, 136 Ill. 2d at 147.) A plaintiff’s awareness of a condition is not always an adequate warning of the consequences of encountering it. (Ward, 136 Ill. 2d at 149.) Thus, the scope of a defendant’s duty may not be disposed of by invocation of imprecise and relative characterizations such as known or obvious. (Ward, 136 Ill. 2d at 147.) Rather, the existence of a duty in the face of a known or obvious condition is subject to the same analysis of duty as is necessary in every other claim of negligence. Thus, we must consider whether Ralls’ injury was reasonably foreseeable by defendants, the likelihood of his injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendants. See Kirk, 117 Ill. 2d at 526.

In this instance, Ralls’ deposition testimony expressly indicated that he was aware of the snow-covered condition of the incline and, therefore, particularly careful. Thus, Ralls was not distracted, and those cases imposing liability based on the foreseeability of a distraction to the plaintiff are not applicable. (See, e.g., Diebert, 141 Ill. 2d at 438-39; Ward, 136 Ill. 2d 151-55.) However, similar to those cases, it was reasonably foreseeable that workers at the site would use the earthen incline to reach the south door of the blower building rather than use the longer and inconvenient perimeter path. It is uncontroverted that workmen did just that during the six months after the incline was created and before Ralls’ accident.

Just as it is reasonably foreseeable that customers leaving a store will be laden with packages distracting their attention from a concrete post near the doorway (Ward, 136 Ill. 2d at 151-53), or that a workman would be concerned with falling debris from above rather than with the terrain beneath his feet (Diebert, 141 Ill. 2d at 438-39), so, too, it was reasonably foreseeable that workers would use the shortest path to the southern door of the blower building. This conclusion is reinforced by the necessity to use the southern doorway created by the blockage of the only other access to the building on the day of Ralls’ accident. Thus, this was a case in which “ ‘the occupier as a reasonable person should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition.’ ” Ward, 136 Ill. 2d at 149, quoting W. Keeton, Prosser & Keeton on Torts §61, at 427 (5th ed. 1984).

Nor does Ralls’ own opinion that the incline was not dangerous change this conclusion. Conditions that are seemingly innocuous may present an unreasonable risk of injury under certain circumstances. (See Diebert, 141 Ill. 2d at 439.) Those circumstances include foreseeable distractions. (Diebert, 141 Ill. 2d at 439.) Had Ralls’ attention been distracted by a foreseeable condition as he traversed the incline, the reasoning of Diebert would clearly control. In this instance, the seemingly innocuous incline became unreasonably dangerous when combined with other conditions impairing the traction, such as the snow and ice in this instance (Stroyeck v. A.E. Staley Manufacturing Co. (1960), 26 Ill. App. 2d 76; see also Greenwood v. Leu (1973), 14 Ill. App. 3d 11, 16-17 (causal connection required between slope and injury)) or arguably even when wet.

Neither the magnitude of guarding against the injury nor the consequences of placing that burden on defendants would be severe in this instance. The excavator offered testimony, as did the former manager of the general contractor, that an eight-foot sheet of plywood with strips of wood for traction could have been placed up the incline to the door or that sand could have been spread on the footpath up the incline.

Finally, an injury from a fall is quite likely. Thus, although defendants owed no duty to Ralls to remove the natural accumulation of snow and ice, and although the slope of the incline was open and obvious, the incline was nevertheless a condition such that defendants should have reasonably anticipated harm to Ralls despite such knowledge or obviousness. (See Ward, 136 Ill. 2d at 149; Restatement (Second) of Torts §343A (1965).) Therefore, the trial court erred as a matter of law in finding that defendants owed no duty to Ralls.

In light of our disposition of this issue, we need not consider the limited analysis of the trial court, which also failed to consider the duties created by either the municipal ordinances or the contracts of several of defendants. However, we note that the trial court was required to take judicial notice of such ordinances once brought to its attention (Ill. Rev. Stat. 1987, ch. 110, par. 8—1001) and that violation of an ordinance designed to protect human life or property is prima facie evidence of negligence. (Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 434.) To recover, a plaintiff need only show that he was within the class of persons to be protected by the ordinance and that the violation of the ordinance proximately caused his injury (Kalata, 144 Ill. 2d at 425-26), and, unlike duty, causation is a question of fact inappropriate for resolution on a motion for summary judgment. Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 393; Turner v. Roesner (1990), 193 Ill. App. 3d 482, 488; Kaplan v. Berger (1989), 184 Ill. App. 3d 224, 233.

Similarly, the trial court failed to consider the contractual duties of several of defendants, which required them “to erect and maintain, as required by the conditions and progress of the work, all necessary safeguards for safety and protection,” “at all times to provide a safe area for workmen and Subcontractors to work,” to use “proper warning guards and safety devices with respect to the construction area,” or which further provided that “prevention of accidents to workmen engaged upon or in the vicinity of the work [was defendants’] responsibility.” Such contracts, therefore, also imposed a duty upon the contracting defendants independent of that based on their status as possessors of the land. See Dydich v. Crystal Green Corp. (1991), 221 Ill. App. 3d 474, 479 (duty in negligence claim determined by terms of contract).

The judgment of the circuit court granting defendants’ motions for summary judgment is affirmed as to count I based on a violation of the Structural Work Act and is reversed as to count II sounding in common-law negligence.

Affirmed in part and reversed in part.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE McLAREN

text:
    THOMAS M. NOESGES, JR., Plaintiff-Appellant, v. SERVICEMASTER COMPANY, Defendant-Appellee.
    Second District
    No. 2—91—1348
    Opinion filed August 14, 1992.

      Brian R. Keeley, of Kupisch, Hunt, Carbon, Kaiser & Bush, of Bensen-ville, for appellant.
    D. Kendall Griffith and Daniel M. Purdom, both of Hinshaw & Culbertson, of Chicago, and Judith L. Hart and Robert G. Black, both of Hinshaw & Culbertson, of Lisle, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Thomas M. Noesges, Jr., appeals from an order of the circuit court of Du Page County which dismissed his complaint against defendant, Servicemaster Company, based upon section 1 of the Frauds Act (Ill. Rev. Stat. 1991, ch. 59, par. 1). Plaintiff raises four issues on appeal: (1) whether the trial court erred in dismissing count I of the complaint because plaintiff had completely performed all of his obligations under the oral agreement; (2) whether the trial court erred in dismissing count I of the complaint because plaintiff had substantially performed all of his obligations under the oral agreement; (3) whether the trial court erred in dismissing count I of the complaint based upon its ruling that, as a matter of law, the terms of the oral agreement could not be completed within one year; and (4) whether the trial court erred in dismissing count II of the complaint, which sought an equitable accounting. We reverse and remand.

On June 10, 1991, plaintiff filed his two-count complaint against defendant. He alleged, in count I, that he and defendant entered into an oral contract on or about February 17, 1989. He alleged that the terms of the oral agreement were that defendant agreed to hire plaintiff “to develop a computer software accounting and business package tailored for Defendant’s distributors and franchisees, referred to as the Residential/Commercial Franchisee Computer System Project (GADGETS).” He further alleged that defendant agreed to pay plaintiff an annual salary of $40,000, plus normal employee benefits, and also agreed to pay plaintiff $200 per copy of the software “sold to Defendant’s distributors and franchisees up to the first 1,500 copies sold, which was estimated would take approximately 5 years.” Plaintiff alleged that defendant agreed that it would license, endorse and market the software.

Plaintiff also alleged that, under the terms of the contract, he agreed to develop, beta test and make ready for distribution the computer software package and that he “duly performed all obligations required of him under” the contract. He further alleged that defendant had refused to perform the terms of the agreement, and he sought damages for breach of contract.

In count II, plaintiff also alleged that he performed all of his obligations under the oral contract. He stated that he worked for defendant from February 1989 until his termination on January 15, 1991. He further alleged that approximately 39 software packages were sold from January 1990 to October 1990 and that he was paid incentive commissions pursuant to the oral contract for these packages. He stated that he was of the opinion and belief that a large number of software packages had been sold after November 1990, but that defendant refused to disclose the number of the packages sold. Plaintiff thus sought an order requiring an accounting from defendant of the number of software packages sold after November 1990 and the amount received for the packages. Plaintiff also sought a judgment against defendant for the amount found to be due and owing to plaintiff based upon the number of packages sold.

On August 26, 1991, defendant filed a motion to dismiss plaintiff’s complaint. It argued that count I of the complaint should be dismissed pursuant to section 2—619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2—619) because the oral contract was not enforceable under section 1 of the Frauds Act (Ill. Rev. Stat. 1991, ch. 59, par. 1). Defendant relied solely on the allegations in plaintiff’s complaint that payment of a $200-per-sale bonus would take approximately five years. Defendant argued that an “agreement to work for another, or to render services, for longer than one year beyond the time the agreement is made” must be in writing.

Defendant also argued that count II of the complaint should be dismissed pursuant to section 2—615 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2—615) because plaintiff did not allege the absence of an adequate remedy at law, a prerequisite to the right to maintain a suit for an equitable accounting. Defendant further argued that the “information Plaintiff seeks would be available by pm-suing appropriate discovery, so that a separate action for accounting is unnecessary.”

Plaintiff filed a response to the motion to dismiss on September 30, 1991. Citing Lund v. E.D. Etnyre & Co. (1968), 103 Ill. App. 2d 158, plaintiff argued that count I should not be dismissed because the Frauds Act did not apply to the alleged oral agreement. He contended that the agreement was capable of being performed within one year. Plaintiff also argued that “not only could the software have been developed and tested within one year, it in fact was intended to have been developed and tested within that time frame.” He further contended that, although the parties estimated that it would take five years to sell 1,500 copies of the software, all 1,500 could have been sold within one year.

Regarding count II of the complaint, plaintiff argued that, as defendant had continued to sell the software packages, a full and formal accounting was of ultimate importance to his cause of action. He contended that count II should not be dismissed because courts have broad discretion in determining whether to order an accounting.

Defendant filed a reply to plaintiff’s response, contending that plaintiff did not allege in count I of his complaint that the software could have been developed and tested within one year so that the complaint “is clearly deficient insofar as in voiding the application” of the statute. Citing cases which involved motions to dismiss pursuant to section 2—615 of the Code (or its predecessor), defendant further argued that plaintiff’s argument, unsupported by the pleadings, could not be considered in relation to the motion to dismiss and that “[fjacts which are not set forth in the Complaint cannot be raised in a Motion for Dismissal based upon the sufficiency of the Complaint.” Defendant also argued that count II should be dismissed because plaintiff did not allege any ground for equity jurisdiction, a necessity for seeking the equitable remedy of an accounting.

A hearing was held regarding defendant’s motion on October 2, 1991. The court granted defendant’s motion to dismiss count I of the complaint, stating:

“Here there is nothing to indicate that it would be possible to distribute or sell the first 1,500 copies within a year—the allegation which must be taken on their [sic] face as indicated in paragraph 4, which was estimated to take approximately five years. That’s the allegation that we have to deal with, and I don’t think that’s sufficient to *** take it outside the statute of frauds. The statute of frauds would apply.”

The court then also stated, “[w]ith regard to count 2, so long as there’s no count 1,1 don’t see the need to proceed with count 2.”

Plaintiff then requested leave to amend the complaint to state specifically that “it was the intention of the parties to actually have this occur within a year’s time.” The court then advised plaintiff that he had the opportunity to file affidavits in response to defendant’s motion to dismiss pursuant to section 2—619(c) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2—619(c)). The court stated that the motion to amend the pleadings was improper and again stated that the motion to dismiss was granted.

An order was subsequently entered which stated that defendant’s motion to dismiss was granted as to count I and count II of the complaint and that the “matter is dismissed with prejudice” under section 2—619 of the Code. Plaintiff filed a timely notice of appeal.

On appeal, plaintiff first argues that the trial court erred in granting defendant’s motion to dismiss count I of the complaint pursuant to section 2—619 of the Code because plaintiff’s full performance of his obligations under the oral agreement barred the application of section 1 of the Frauds Act. We agree.

“The purpose of a section 2—619 motion to dismiss is to provide a means to dispose of issues of law or easily proved issues of fact [citation], and such a motion may be granted when the claim asserted against the defendant is barred by other affirmative matter defeating the claim.” (Timberline, Inc. v. Towne (1992), 225 Ill. App. 3d 433, 438-39.) A motion filed pursuant to section 2—619 of the Code admits, for the purpose of the motion, all facts well pleaded in the complaint. (Dahl v. Federal Land Bank Association (1991), 213 Ill. App. 3d 867, 869.) In support of its motion, a defendant is permitted to assert by affidavit those matters showing that a claim has been released or satisfied or barred by other affirmative matter. (Ill. Rev. Stat. 1991, ch. 110, par. 2—619(a); Dahl, 213 Ill. App. 3d at 869.) The motion should be granted if, after construing the documents in the light most favorable to the party opposing the motion, the trial court finds no disputed issues of fact. (Timberline, 225 Ill. App. 3d at 439.) The motion should be denied, however, if it cannot be determined with reasonable certainty that the alleged defense exists. Sjogren v. May-brooks, Inc. (1991), 214 Ill. App. 3d 888, 891.

In this cause, defendant’s motion to dismiss count I of plaintiff’s complaint asserted, as an affirmative matter, that the oral contract was unenforceable because it did not comply with section 1 of the Frauds Act. Defendant did not file supporting affidavits. Thus, the only document before the trial court was plaintiff’s complaint. The trial court, therefore, had to determine whether, based solely upon the allegations of the complaint, there was an issue of fact regarding the application of section 1 of the Frauds Act to the contract sought to be enforced. In making this determination, the well-pleaded facts of plaintiff’s complaint had to be considered admitted by defendant and had to be considered in the light most favorable to plaintiff.

Section 1 of the Frauds Act provides, in relevant part:

“[N]o action shall be brought *** to charge any person *** upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” (Ill. Rev. Stat. 1991, ch. 59, par. 1.)

Statutes such as the Frauds Act, also commonly referred to as the Statute of Frauds, “are designed to prevent false claims by requiring a writing to evidence the parties’ contractual intent.” Jakubik v. Rounis (1988), 175 Ill. App. 3d 551, 552.

It is well settled, however, that complete performance on the part of one of the parties to the oral agreement bars application of the statute. (David v. Schiltz (1953), 415 Ill. 545, 555; Adams v. Lock-former Co. (1988), 167 Ill. App. 3d 93, 101; Mapes v. Kalva Corp. (1979), 68 Ill. App. 3d 362, 368; see also Restatement (Second) of Contracts §130 (1981).) “The rationale of the full performance doctrine is that when one party, in reasonable reliance on the contract, performs all of its obligations, it would be unfair to allow the other party to accept the benefits under the contract but to avoid its reciprocal obligations by asserting the Statute of Frauds.” (American College of Surgeons v. Lumbermens Mutual Casualty Co. (1986), 142 Ill. App. 3d 680, 700.) Illinois courts have uniformly followed the rule “that when one party to a contract completes his performance, the one-year provision of the statute does not prevent enforcement of the promises of the other party.” American College of Surgeons, 142 Ill. App. 3d at 700; see also Winnetka Bank v. Mandas (1990), 202 Ill. App. 3d 373, 395.

In this cause, plaintiff alleged that, pursuant to the oral agreement, he agreed to develop, beta test and make ready for distribution the computer software package and that he “duly performed all obligations required of him” under the contract. As these facts have been admitted by defendant for purposes of the section 2—619 motion to dismiss, it is apparent that the Frauds Act does not prevent enforcement of the oral agreement, as alleged, and that defendant’s motion should have been denied. We further note that, in count II, plaintiff alleged that software packages were sold in 1990, beginning in January of that year. Thus, plaintiff not only completed his obligations under the contract, he even completed his obligations within one year from the making of the contract.

Defendant argues, however, that plaintiff has waived the issue of full performance by failing to raise it in the trial court. It contends that plaintiff did not argue full or part performance in the trial court, "[n]or did he plead full or part performance in his complaint.” As noted, plaintiff did, in fact, allege in his complaint that he performed all of his obligations under the contract. While plaintiff did not specifically argue in the trial court that the Frauds Act did not apply because of his full performance of his contractual obligations, he clearly did argue that the Frauds Act did not apply to the contract. Under similar circumstances, this court in Lund (103 Ill. App. 2d at 163-65) reversed the dismissal of a complaint based upon a determination that the Statute of Frauds did not bar the action because the plaintiff had fully performed his part of the agreement. This was deemed sufficient even though the plaintiff had only argued that the agreement could have been performed within one year. (Lund, 103 Ill. App. 2d at 162.) A like result is warranted here.

Defendant next argues that for “full performance to defeat a motion to dismiss based on the statute of frauds, a party’s allegations must clearly show performance within one year.” It further contends that plaintiff’s complaint was insufficient as it “neither states a date by which plaintiff supposedly completed his obligations nor provides that the date of completion was within one year.” These arguments are not well taken.

First, the rule of law is that full performance on the part of one of the parties to an oral agreement bars application of the Frauds Act. There is no requirement that the full performance take place within one year. The cases cited by defendant do not support its contention regarding a one-year completion requirement. We do not condone defendant’s citation of cases for a proposition for which they do not stand. We also caution defendant that such conduct undermines its entire position.

We also must reject categorically defendant’s arguments in its brief which have attempted to place the burden on plaintiff to allege sufficient facts to show that section 1 of the Frauds Act does not apply to his cause of action. We remind defendant that it filed a section 2—619 motion to dismiss count I of plaintiff’s complaint. It was therefore not attacking the sufficiency of count I of plaintiff’s complaint pursuant to section 2—615 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2—615), but was asserting that plaintiff’s claim was barred by an affirmative matter, the Frauds Act. It was thus defendant’s burden to show that plaintiff’s claim was so barred. Both in the trial court and on appeal, defendant has confused matters by arguing the insufficiency of plaintiff’s complaint as if it had filed a section 2—615 motion to dismiss count I of the complaint. These arguments are inapplicable to this cause and have not been considered beyond the recognition of their inadequacy.

As we have determined that plaintiff’s complaint should not have been dismissed based upon the Frauds Act because plaintiff alleged that he performed all of his obligations under the oral agreement, we need not address plaintiff’s alternative contentions that the Frauds Act did not bar his cause of action because of partial performance of the contract or because the contract was capable of being performed within one year.

Plaintiff finally argues that count II of his complaint should not have been dismissed. It appears from the record that the trial court dismissed count II solely because count I had been dismissed and it determined that there was then no “need to proceed” with count II. It appears that no determination was made by the trial court regarding whether count II was sufficient to state a cause of action. As we have reversed the dismissal of count I, count II must then also be reinstated. We further note that we agree with plaintiff’s argument that, if the trial court had determined that count II did not state a cause of action, plaintiff should have been allowed at least one opportunity to amend his complaint.

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

INGLIS, P.J., and DUNN, J., concur.