source: Caselaw Access Project

author: JUSTICE FREEMAN

license: Public Domain

text:
    ACADEMY CHICAGO PUBLISHERS et al., Plaintiffs-Appellants, v. MARY W. CHEEVER, Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—0506
    Opinion filed June 27, 1990.

      McBride, Baker & Coles, of Chicago (Thomas R. Leavens and Marc L. Fogelberg, of counsel), for appellants.
    Frankfurt, Garbus, Klein & Selz, P.C., of Chicago (Martin Garbus, Maura Wogan, and Russell Smith, of counsel), for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiffs, Academy Chicago Publishers (Academy) and Franklin H. Dennis (Dennis), filed a second amended complaint for declaratory relief against defendant, Mary W. Cheever, in the circuit court of Cook County. Plaintiffs sought a declaration of the parties’ rights under á contract: (1) granting Academy the exclusive right to publish a work tentatively entitled, “The Uncollected Stories of John Cheever”; (2) designating Dennis as the work’s editor; and (3) obligating defendant to deliver the manuscript from which the work was to be published. After a trial on the merits, the trial court entered a judgment declaring, inter alia, that the contract executed by the parties was valid and enforceable. Plaintiffs appeal from that judgment.

In addition to declaring the parties’ contract valid and enforceable, the trial court declared that, pursuant thereto: (1) defendant was entitled to select the stories of her late husband to be included in the manuscript to be delivered to Academy for publication; (2) she would comply with her obligations of good faith and fair dealing if she delivered a manuscript of at least 10 to 15 stories aggregating at least 140 pages; and (3) Academy controls the design and format of the work to be published but it must exercise that control in cooperation with defendant. Plaintiffs’ appeal specifically challenges the last two declarations of the trial court.

Being too voluminous to be stated briefly, we will discuss the facts only as pertinent to the points raised on appeal by plaintiffs.

I

Plaintiffs first contend that the declaration that defendant would satisfy her obligations of good faith and fair dealing under the contract by delivering a manuscript of 10 to 15 stories and, at least, 140 pages is an improper advisory opinion because no issue concerning the manuscript was either in controversy or litigated in this action.

Of all the arguments made by the parties on this issue, we are convinced that the rule, cited by defendant, against piecemeal declaratory judgments is dispositive. Plaintiffs argue on appeal that the trial court should have limited its declarations to confirming the validity of the contract and to requiring defendant to deliver a manuscript thereunder. We cannot agree.

In so arguing, plaintiffs ignore that they also requested a declaration that they had the right to publish the 68 Cheever stories appended to their second amended complaint. Plaintiffs readily acknowledge that fact relative to other arguments of the parties on the instant issue. However, in the context of the piecemeal declaratory judgment arguments, they ignore that that request necessarily required the trial court to determine the number of stories, between none and 68, which defendant was required to submit for publication in keeping with her contract obligations. The reason that that request necessarily required the trial court to make that determination is that the contract between the parties failed to establish in any way the number of stories which defendant was obligated to submit for publication or which plaintiffs had the right to publish.

That failure of the contract made the issues of its validity and the parties’ required performances thereunder separate and distinct. That is, because the contract failed to establish the number of stories to be submitted by defendant or published by plaintiffs, we do not believe the trial court was required, if it found the contract valid and enforceable, to accept plaintiffs’ contention that they had the right to publish all 68 stories, appended to their second amended complaint. Logically then, if the trial court did not have to accept that contention, it was free, within the bounds of its discretion, to determine either the number of stories which defendant was required to submit or which plaintiffs had the right to publish under the contract.

In short, we find that, by requesting a declaration that they had a right to publish a certain number of stories in the face of a contract which was silent on that issue, plaintiffs necessarily, albeit tacitly, requested declaration as to the number of stories which they did have a right to publish if the trial court did not agree with the number proffered by them. Plaintiffs did put defendant’s contract performance obligations with respect to the manuscript “in controversy,” contrary to their assertion that they did not. As such, the court did not issue a merely advisory ruling in determining those minimum obligations. Moreover, case law involving the rule against piecemeal declaratory judgments supports the trial court’s action in this regard.

In Krebs v. Mini (1977), 53 Ill. App. 3d 787, 368 N.E.2d 159, the plaintiffs prayed for declarations that there was a partnership or joint venture agreement between them and the defendant for the purchase and operation of a corporation and that the defendant held two-thirds of the stock of the corporation as trustee for the plaintiffs’ benefit. In affirming the denial of that relief, the court held that a declaration that the parties were partners or joint venturers would still leave them in controversy over such questions as the terms of their agreement and whether there had been a breach of those terms. Likewise, it held that a declaration that the defendant held two-thirds of the stock of the corporation as trustee for the plaintiffs would not solve the problem of the time and terms of the stock’s issuance or transfer to the plaintiffs,

In this case, plaintiffs not only asked for a declaration of a valid agreement with defendant, like the Krebs plaintiffs, but also, unlike them, sought a declaration regarding the major or most important term, at least from their perspective, of that agreement, i.e., the number of Cheever stories which defendant was required to allow plaintiffs to publish. As such, we agree with defendant that a failure by the trial court to settle that latter question, in the face of the requested declaration, would have guaranteed further litigation and would thus have violated the rule against piecemeal declaratory judgments. Moreover, inasmuch as plaintiffs did request a declaration of the number of Cheever stories they were entitled to publish, it cannot be said that the trial court entered a declaration that was not requested or, in other words, that plaintiff’s prayer for relief did not allow the court to enter a judgment disposing of the entire controversy between the parties. See Farmers Insurance Group v. Harris (1972), 4 Ill. App. 3d 372, 376, 279 N.E.2d 789.

The cases cited by plaintiffs for the proposition that courts cannot issue advisory opinions do not require a contrary conclusion. In Howlett v. Scott (1977), 69 Ill. 2d 135, 370 N.E.2d 1036, which noted, inter alia, that courts have no authority to issue advisory opinions, the court found premature a declaratory judgment action, by the then Illinois Secretary of State, for a declaration that a certain business relationship of his had not created a conflict of interest where the defendant, the then Illinois Attorney General, had not indicated his intent to prosecute an action against the Secretary of State at the time the declaratory action was filed. Howlett is clearly factually inapposite here. See also People ex rel. Barra v. Archer Daniels Midland Co. (7th Cir. 1983), 704 F.2d 935 (declaratory judgment that Federal law preempted State law was premature where no action had been instituted under latter law).

In State Farm Mutual Automobile Insurance Co. v. Morris (1961), 29 Ill. App. 2d 451, 173 N.E.2d 590, cert. denied (1961), 368 U.S. 878, 7 L. Ed. 2d 78, 82 S. Ct. 124, which noted, inter alia, that courts cannot give advice with respect to hypothetical or anticipated future problems, the court found premature an insurer’s declaratory judgment action for declarations as to its obligations under one of its policies. It did so on the bases that: (a) as to the requested declaration that it was not obligated to pay any damages which its insured might become legally obligated to pay, the plaintiff had an adequate remedy in any future garnishment action against it were any third parties to obtain judgments against its insured; (b) as to the requested declaration that it was not obligated to pay the medical expenses of any claimants against its insured not conditioned upon her liability to them, the plaintiff had an adequate remedy in any future suit against it by any such claimant; and (c) the requested declaration that it was not obligated to defend any suit against its insured would constitute giving an advisory opinion and, in light of the impropriety of declarations as to the foregoing matters, would violate the prohibition against piecemeal declaratory judgment litigation. Morris is patently inapposite to this case.

In Continental Illinois National Bank & Trust Co. v. Bailey (1982), 104 Ill. App. 3d 1131, 433 N.E.2d 1098, which noted that courts should not declare the rights of parties on a state of facts which has not arisen or on a matter which is future, contingent and uncertain, the court found premature the entry of a declaratory judgment that the share of the testamentary trust established by the will at issue, which was to go to one of the testator’s children, Jennie, would be distributed among the issue of the testator’s other children should Jennie’s children die without issue within 21 years after her death, or 2002, when Jennie’s share was to be distributed. In declining to enter the judgment requested, the court noted that before any question as to the interpretation of the will could arise with respect to the distribution of Jennie’s share, both of her surviving issue had to die before 2002 and without leaving any issue. The court concluded that there was no certainty or even any reason to believe that that would happen. This case did not involve a matter anywhere near as contingent, uncertain and speculative as that involved in Bailey. It is of no assistance to plaintiffs.

In Nelson v. City of Rockford (1960), 19 Ill. 2d 410, 167 N.E.2d 219, the supreme court, after affirming a declaration that a zoning ordinance was invalid, nonetheless found premature the trial court’s direction of the issuance of building permits where such relief had not been requested. What we have said above regarding the declaration as to the number of Cheever stories plaintiffs were entitled to publish, which plaintiffs sought in this case, makes it unnecessary to further distinguish Nelson.

Finally, in Swim Club of Rockford, Ltd. v. City of Rockford (1985), 130 Ill. App. 3d 353, 473 N.E.2d 1375, the court, after affirming a declaration that a zoning ordinance was invalid, also found invalid the imposition of certain restrictions on the proposed special use of the plaintiff’s property as the assumption of a legislative role by the trial court. Plaintiffs cite Swim Club for the proposition that a trial court cannot act as an uninvited arbiter. However, given the declarations which plaintiffs sought here, we cannot say that the contested declaration was as unsolicited as that in Swim Club.

Having concluded that defendant’s contract performance obligations were in controversy in this action, we must next determine whether plaintiffs had an opportunity to litigate the issue and, thus, to make a record on the issue.

Just as we have found that plaintiffs put the minimum number of stories which defendant was required to submit for publication in controversy by requesting a declaration that they were entitled to publish the 68 stories appended thereto, we also find that, by adducing evidence to support that claim, plaintiffs litigated, albeit implicitly, the minimum number of stories which defendant could submit under the contract were the trial court to disagree with the number preferred by them. In this regard, we do not believe that the trial court was required to advise plaintiffs of the possibility that it might find that defendant could submit a much lower number of stories in order for us to find that this issue was actually litigated. Rather, that possibility was manifest at trial in view of: (1) defendant’s position that the contract was void and that she was not required to deliver any stories for publication thereunder; (2) the evidence which she introduced, in an effort to meet plaintiffs’ contention, as to the contents of prior Cheever collections; and (3) the total failure of the contract to contain any minimum number of stories whatsoever.

The next point we must address is whether the trial court’s own characterization of its declaration with respect to defendant’s minimum performance obligations as “advisory” warrants a contrary conclusion. This point does not give us much pause in view of the well-settled law that a reviewing court passes upon the correctness of a trial court’s judgment, not its rationale or reasoning in entering that judgment. That being the case, the fact that the trial court characterized its ruling with respect to defendant’s good-faith and fair dealing obligations under the contract as an “advisory declaration” is of no moment. Whether or not the trial court realized it, defendant’s minimum performance obligations under the contract were in controversy before it.

II

Plaintiffs next contend that, even if the issue of defendant’s good-faith and fair dealing obligations were properly before it, the trial court abused its discretion in declaring that defendant would satisfy those obligations by delivering a manuscript of any 10 to 15 stories of at least 140 pages.

In this vein, they first assert that the declaration improperly ignored the limitations implied in the contract on defendant’s selection of stories. In reference to these limitations, plaintiffs argue that the trial court should have considered “the circumstances involving the makeup and delivery” of the manuscript the contract obligated her to deliver, such as the number of words, the extent to which stories in the public domain were included in the manuscript, and “any content that might denigrate or otherwise detract from the collection or Academy’s ability to market the book in a manner consistent with its reputation for quality.” Plaintiffs further assert that the limitations implied in the contract required consideration of the circumstances of her submission of the manuscript, including its timeliness and any conditions placed on the acceptance of the manuscript, and the fact that Academy, as a high-quality publisher, bargained for a high-quality and complete collection of Cheever stories.

Even assuming that the trial court was required to consider the limitations on the defendant’s discretion in rendering her contract performance which were implied therein, we do not believe that the limitations asserted by plaintiffs were, with one exception, implied in the contract. The relevant portions of the contract provide:

“Whereas the parties are desirous *** of publishing and having published a certain work *** tentatively titled The Uncollected Stories of John Cheever (hereinafter referred to as the Work);
Therefore, in consideration of the mutual covenants contained herein, the parties do hereby agree as follows:
1. [Defendant] grants to [Academy], during the full term of copyright of the Work and all renewals and extensions of copyright, the exclusive right to print, publish and sell the Work in book form in the English language throughout the world, and the exclusive right to license its publication in all languages throughout the world.
2. [Defendant] will deliver to [Academy] on a mutually agreeable date one copy of the manuscript of the work as finally arranged by [Dennis] and satisfactory to [Academy] in form and content.
* * *
5. Within a reasonable time and a mutually agreeable date after delivery of the *** manuscript, [Academy] will publish the work at its own expense, in such style and manner and at such price as it deems best[.]
6. [Academy] will apply for copyright *** in conformity with the Copyright Law of the United States and the Universal Copyright convention in the name of [defendant] and may effect any renewals or extensions of copyright provided for by law.”

The foregoing provisions are the most important relating to the performance due under the contract by plaintiffs and defendant. We do not find implicit in these provisions any of the limitations upon defendant’s performance which plaintiffs assert were implied therein, with one exception.

Before discussing that exception, we must note the language in paragraph 2 that defendant was to deliver a manuscript which was “satisfactory to [Academy] in form and content.” Plaintiffs have not argued on appeal that Academy could have imposed the limitations which they assert are implicit in the contract upon defendant’s performance pursuant to this language. Nor could they have so argued. Where a contract provides that it is to be performed in a manner “satisfactory” to one of the parties, that provision is construed as meaning that the performance must be such that the party, as a reasonable person, should be satisfied with it. (Hoff v. L. Gould & Co. (1916), 198 Ill. App. 499 (abstract of opinion).) Beyond that, however, we believe it would be unreasonable to construe the “satisfactory to [Academy] in form and content” language of the contract as imposing the substantive limitations asserted upon defendant’s performance.

The limitation upon defendant’s performance which we do find implicit in the foregoing provisions, as well as the rest of the contract, is the limitation as to her submission of stories in the public domain, i.e., as to which the copyright, for which Academy bargained in the contract, could not attach. The contract reveals on its face that the copyright for the work was an important element as far as Academy was concerned. As Academy bargained therefor and as defendant agreed thereto, we do not believe that defendant could defeat Academy’s copyright in rendering her contract performance. However, as we will discuss more fully below, we find no error by the trial court in its failure to consider the limitation upon defendant’s inclusion of stories in the public domain which was implicit in Academy’s bargained for copyright in the work to be published under the contract.

As we do not find that any of the proffered limitations upon defendant’s performance, with the one exception noted, were implicit in the contract, we do not find that the trial court erred in failing to determine her minimum performance obligations without considering those limitations.

Plaintiffs next assert that the trial court should have also considered general publishing industry practice in determining defendant’s minimum performance obligations under the contract. Specifically, they argue that the court erred in failing to consider the undisputed industry practice of using the number of words to define the length of a manuscript.

After reviewing the record, we do not find either that the trial court failed to consider the use of number of words in publishing industry practice in defining the length of manuscripts or, as plaintiffs imply, that they proved that use of the number of words of a manuscript is required in the industry in defining its length.

As support for the latter point, plaintiffs cite the testimony of Robert Markel, a publishing executive for 26 years, that word length is a common form of defining a manuscript in a publishing contract and of Rhoda Gamson, the director of contracts and copyrights for Viking, Penguin, Inc., that a form publishing agreement for an anthology of short stories would usually be modified by inserting either the name of the stories, their number, or the number of words, but not the number of pages.

Beyond the fact that the contract employed by plaintiffs manifestly failed to conform to the contract drafting practices testified to by Markel and Gamson, we also find that their testimony fails to warrant a conclusion that use of the number of words in a manuscript is a sine qua non in defining its length. That the use of that aspect of a manuscript in defining its length is “common” and also used in so doing, along with the number of stories (which measure the trial court used here), does not make it de rigueur.

Moreover, the record conclusively reveals the fallacy of plaintiffs’ assertion that the trial court did not consider the use of the number of words in the manuscript as a guide in defining its length. After the trial court declared defendant’s minimum performance obligations with respect to the manuscript to be delivered to them, plaintiffs requested that the trial court also define those obligations in terms of the number of words to be included therein. In ruling upon this request in a memorandum opinion, the trial court painstakingly considered the proposed additional standard by comparing the number of words in the manuscript submitted by defendant to the number of words in several comparable prior Cheever anthologies. That the trial court ultimately rejected defining defendant’s performance obligations in terms of the words in her manuscript does not reveal that it did not consider that standard. Moreover, in light of the inadequacy of Markel’s and Gamson’s testimony in the aspect above discussed, we will not find error in the trial court’s rejection of that standard.

Next, plaintiffs assert that the trial court erred in declaring that defendant could choose any 10 or 15 stories for the manuscript without regard to Academy’s copyrights and exclusivity rights because defendant’s selection of stories in the public domain would destroy or injure Academy’s right to receive the benefits of its bargain.

The short answer to plaintiffs’ argument is that the mere possibility that their contract rights might be injured by defendant’s selection of nine stories in the public domain, out of the 15 included in the manuscript, is insufficient to establish that the trial court abused its discretion in failing to address the number of such stories which defendant could include in the manuscript. That is, without alleging actual injury, we do not believe that plaintiffs have been prejudiced by the asserted failure of the trial court.

Plaintiffs next assert that the trial court also erred in failing to address the question of whether defendant was required to select stories for her manuscript which were consistent with plaintiff’s desire to demonstrate the evolution and development of Cheever’s talent as a writer. The problem with this argument is the same as that with the other limitations upon defendant’s performance which plaintiffs have asserted and which we have found nonexistent in the contract. That is, the instant limitation was neither implicit or explicit in the contract. That being the case, just as with the other limitations, we do not believe the trial court was required to consider the instant limitation in determining defendant’s contract performance obligations. If plaintiffs’ intent in entering the contract with defendant was to demonstrate the development of Cheever’s writing skills, they should have so stated explicitly therein.

Plaintiffs next assert that the trial court erred in relying upon a statement made by Academy’s vice-president to the proposed author of the work’s introduction, that the work would go “considerably beyond the stereotyped perceptions of [Cheever’s] work,” in determining the parties’ intent regarding the content of the work. Specifically, plaintiffs assert that the trial court misinterpreted this statement, which was merely a reference to the thematic range of the content of the work, as referring to its size.

Preliminarily, we must admit that we find it somewhat difficult to address this argument in view of the fact that the trial court did not so much rely on the statement above quoted as evidencing the parties’ intent with respect to the size of the work as it relied on it as an admission by Academy that the compilation of 68 stories, which it was proposing to publish, exceeded the norm with respect to Cheever collections. Secondly, to the extent that the trial court may have misinterpreted the statement as an admission by Academy as to the size of the work, we are hard pressed to understand how plaintiffs can complain. Interpreted as such, the statement supported Academy’s argument that it had a right under the contract to publish as many stories as it wished. That is, construed as plaintiffs allege, the statement helped rather than hurt their argument that their intent in contracting with defendant was to publish a large book. As such, and as plaintiffs do not allege that the trial court failed to consider the statement in determining defendant’s performance obligations, we find plaintiffs’ argument unavailing in revealing error by the court in this regard.

Plaintiffs next assert that the trial court erred in setting defendant’s performance obligations in sole reliance upon her intent in contracting with plaintiffs. However, the record conclusively belies plaintiffs’ argument.

In setting those obligations, beyond defendant’s subjective intent and understanding as to the size of the work, the trial court also relied upon the following: (1) the contract did not define the size of the work, contrary to industry practice; (2) when it was executed, Academy’s vice-president had no idea as to the number of previously uncollected stories which plaintiffs’ research would find; (3) the tentative title of the work shed no light on the issue because, as a matter of fact and industry practice, tentative titles stated in publishing contracts do not define the size of the work; (4) Academy is a relatively small publishing house; (5) except for the Pulitzer Prize winning collection of Cheever stories published by Knopf in 1978, all other collections of Cheever stories contained about 10 to 15 stories and ran about 140 to 260 pages; and (6) Dennis, the work’s editor, was principally a publicist with almost no editing experience in the previous 10 years. In view of the additional factors considered by the trial court and supporting the declaration complained of, we find no error in its partial reliance on defendant’s subjective understanding of the size of the work plaintiffs desired to publish. Cf. DeBow v. City of East St. Louis (1987), 158 Ill. App. 3d 27, 510 N.E.2d 895 (error in admission of evidence does not require reversal if there has been no prejudice or if trial outcome not materially affected thereby).

Plaintiffs also assert that the court erred in failing to take into consideration the Pulitzer Prize winning Knopf collection of Cheever stories published in 1978 in setting defendant’s contract obligations. Simply stated, we do not agree with plaintiffs that the fact the trial court did not set a page limit for the manuscript approaching the 700 pages of the Knopf collection reveals that it failed to consider the collection in setting the standards for the manuscript. Plaintiffs assert (without any citation to the record, we might add) that the Knopf collection “changed the standards and literary expectations against which all subsequent collections would be measured.” We find, however, that the trial court was in a better position than this court to decide that question. Therefore, we will not substitute our judgment for the trial court’s in this regard.

Plaintiffs similarly assert that the trial court improperly failed to consider the tentative title of the work stated in the contract and the support which that title gave to Academy’s position that it had the right to publish all of the previously uncollected Cheever stories it had found in setting the manuscript standards. In view of Dennis’s own testimony to the effect that the tentative title of the work, so called in the contract, was just that, the trial court did not err in failing to give any weight to it in setting the manuscript standards.

Ill

The next issue raised by plaintiffs is that the trial court erred in declaring that the manuscript submitted by defendant met the minimum performance obligations set by the court. The majority of the arguments made in support of the instant contention are repetitive of those made in support of the second point raised on appeal. As such, we find it necessary to address only one: that defendant violated her good-faith and fair dealing obligation by conditioning Academy’s acceptance of the manuscript which she submitted on: (1) its acquiescence to her approval of the advertising, promotion and sale of the work; and (2) its agreement to limit the number of books printed and sold.

We believe that the advertising, promotion, and sale of the work and the number of books to be printed and sold are all matters of publication, over which paragraph 5 of the parties’ contract explicitly granted exclusive control to Academy. Thus, we believe that defendant’s right to condition Academy’s acceptance of the manuscript is controlled by our disposition of the fourth issue raised by plaintiffs. That issue is whether the trial court erred in declaring that Academy must consult with defendant on all matters of publication of the manuscript. We conclude below that the trial court erred, given the explicit language of the contract granting exclusive control of publication matters to Academy. For that same reason, we must also conclude that defendant does not have the right to condition Academy’s acceptance of the work on its acquiescence to her attempt to affect matters of publication.

IV

In raising the fourth issue, plaintiffs specifically assert that the trial court erred in considering extrinsic evidence to interpret the contract, regarding the matter of control of publication, in view of the contract language explicitly granting exclusive control of that matter to Academy.

Defendant does not substantively address the fourth issue raised by plaintiffs. Instead, she alleges that plaintiffs have not preserved it for appeal by failing to include it in their notice of appeal. Plaintiffs assert that they preserved the issue by seeking in their notice of appeal “vacation of the trial court’s findings with respect to the scope of the Publication intended by the parties.”

The purpose of a notice of appeal is to inform the party prevailing in the trial court that the other party seeks a review of the judgment; to this end, the notice of appeal is liberally construed, and defects in form will not deprive the reviewing court of jurisdiction. (McMahon v. McMahon (1981), 97 Ill. App. 3d 448, 422 N.E.2d 1150.) For instance, in Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, 403 N.E.2d 470, the appellate court held that the plaintiff’s failure to refer to the dismissal of count I of her amended complaint in her notice of appeal did not preclude her from asserting on appeal error in the dismissal of that count as well as count II of her complaint, to which the notice did refer. The court noted that a “notice of appeal should be considered as a whole and where the notice fairly and adequately sets out the judgment appealed from so as to inform the successful party of the nature of the proceedings, the absence of strict technical compliance with the form of notice is not fatal.” (Rinck, 82 Ill. App. 3d at 859.) The court concluded that, since the order specified in the notice of appeal as the judgment appealed from had dismissed both counts of the amended complaint, the notice of appeal was sufficient to advise the defendants of the nature of the proceedings and that the language therein referring to count II of the amended complaint was surplusage. Rinck, 82 Ill. App. 3d at 859.

In view of the foregoing, plaintiffs have not waived the right to appeal from the instant aspect of the trial court’s judgment. Addressing the merits of their argument, moreover, we agree that the trial court erred in looking beyond the four corners of the parties’ contract to make the declaration of which plaintiffs complain.

As plaintiffs note, under Illinois law, there is a presumption that an agreement, when reduced to writing, reflects the intention of the parties. (Payne v. Coates-Miller Inc. (1982), 105 Ill. App. 3d 273, 434 N.E.2d 306.) Ordinarily, that intent is determined from the language embodied in the parties’ final agreement (Farwell Construction Co. v. Ticktin (1980), 84 Ill. App. 3d 791, 405 N.E.2d 1051), and a court can consider extrinsic evidence to ascertain their intent only when the language of the agreement is ambiguous (Lenzi v. Morkin (1984), 103 Ill. 2d 290, 469 N.E.2d 78).

The foregoing rules, in essence, comprise the parol evidence rule. That rule is a rule of substantive contract law rather than a rule of evidence. (Bank of Naperville v. Holz (1980), 86 Ill. App. 3d 533, 407 N.E.2d 1102.) Therefore, a mere rule of evidence which would allow the consideration of evidence otherwise incompetent under the former rule cannot be applied to defeat the bar of the rule. As such, the only possible basis for the trial court’s consideration of the extrinsic evidence complained of which our research has uncovered, i.e., the rule regarding the admissibility of acts which comprise the res gestae of an occurrence, event or transaction, is an insufficient justification for the trial court’s action. The court erred as a matter of law in considering extrinsic evidence to reach a determination which altered and contradicted the clear and unambiguous language of the contract. Kendall v. Kendall (1977), 46 Ill. App. 3d 559, 360 N.E.2d 1242, aff'd (1978), 71 Ill. 2d 374, 375 N.E.2d 1280.

Finally, given the silence of the contract on the main issue in this appeal, i.e., defendant’s performance obligations, there is no inconsistency between our affirming the trial court’s action thereon and our reversing its ruling on this last issue. The trial court properly considered extrinsic evidence to determine the parties’ intent on matters upon which the contract was silent. In Spitz v. Brickhouse (1954), 3 Ill. App. 2d 536, 539-40, 123 N.E.2d 117, it was stated that “[i]f [a contract] is silent in essential particulars, parol evidence is admissible to establish the missing parts, although inadmissible to contradict those unambiguous terms expressed in the [contract].” Accord Bleck v. Stepanich (1978), 64 Ill. App. 3d 436, 381 N.E.2d 363.

For all of the foregoing reasons, the judgment appealed from is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

CERDA, P.J., and WHITE, J., concur.

       John Cheever, who died in 1982, was a Pulitzer Prize winning American author. Defendant, Mary W. Cheever, is the widow of John Cheever.


author: JUSTICE WHITE

text:
    SKIPPER MARINE ELECTRONICS, INC., Plaintiff-Appellant, v. CYBERNET MARINE PRODUCTS, Defendant-Appellee.
    First District (3rd Division)
    No. 1—89—0693
    Opinion filed June 27, 1990.
    Rehearing denied August 3, 1990.

      Kevin G. Barry and Donald S. Shifris, both of Shifris & Barry, Ltd., of Northbrook, for appellant.
    Leonard A. Nelson, of Shoenberg, Fisher & Newman, Ltd., of Chicago, and Victor A. Rodger, of Spensley, Horn, Jubas & Lubitz, of Los Angeles, California, for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff, Skipper Marine Electronics, Inc. (SMI), appeals from an order of the circuit court granting the motion of defendant Cybernet Marine Products to dismiss SMI’s action pursuant to section 2— 619(a)(3) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(3)), on the ground that there was another action pending between the parties in a California court. SMI contends that Illinois is the proper forum for the action and that the trial court abused its discretion in granting defendant’s motion to dismiss.

On March 17, 1988, SMI filed suit in the circuit court of Cook County against defendant, a division of the California corporation Kyocera Electronics, Inc. (Kyocera). SMI’s complaint alleged that SMI was a dealer/distributor of defendant’s products; that defendant had entered into contracts with SMI for the purchase of defendant’s products; and that although these purchases qualified for defendant’s “Volume Bonus” and “Cooperative Advertising” incentive programs, defendant refused to credit SMI’s account for the amount of incentives earned. SMI also alleged that by seeking strict enforcement of the provisions of the incentive programs against SMI, but not against other dealer/distributors, defendant was in violation of the Illinois Anti-Trust Act (Ill. Rev. Stat. 1987, ch. 38, par. 60 — 7(2)).

Defendant was served with process on March 24, 1988, and on September 13, 1988, defendant filed a motion to dismiss or transfer on the ground of forum non conveniens and a motion for involuntary dismissal pursuant to section 2 — 619(a)(3). Section 2 — 619(a)(3) provides that a defendant may file a motion for dismissal of an action on the ground that there is another action pending between the same parties for the same cause.

Attached to defendant’s section 2 — 619(a)(3) motion for involuntary dismissal was a copy of a complaint filed by Kyocera in the municipal court of California against a California corporation also named Skipper Marine Electronics, Inc. (SMC). The complaint, which was filed on March 10, 1988, and served on March 29, alleged that SMC was in debt to Kyocera in the amount of $11,770 for goods furnished to SMC by Kyocera at SMC’s request and that despite Kyocera’s demands SMC had refused to pay for the goods ordered. The complaint also requested a judicial declaration of the parties’ rights and duties under Kyocera’s volume bonus and cooperative advertising incentive programs and of whether these rights were affected by SMC’s failure to make timely payments as required by the terms of the incentive programs.

In support of its motion to dismiss, defendant argued that the California action was filed prior to the Illinois action and that both sought a determination of the same issue, i.e., the parties’ rights under Kyocera’s incentive programs. Defendant further argued that to allow both actions to proceed would result in unnecessary expense to the parties, a duplication of judicial resources, and the possibility of inconsistent rulings.

In its reply to defendant’s motion, SMI acknowledged that it was affiliated with SMC and that products billed to SMI were delivered to SMC. SMI argued, however, that defendant’s motion to dismiss should not be granted: (1) because SMI was not a party to the California action; (2) because the Illinois court first acquired jurisdiction over the parties, when service of process was obtained in the Illinois action five days before it was obtained in the California action; and (3) because all transactions and sales between SMI and defendant were conducted in Illinois.

In response, defendant presented the trial court with certified copies of pleadings filed by SMC in the California court. In these pleadings, SMC requested that the California court stay or dismiss Kyocera’s action on the ground that an identical action involving the same parties was pending in the courts of the State of Illinois. Defendant also filed documents showing that Donald Shifris, one of SMC’s attorneys, was both president of SMI and chief executive officer of SMC; that the only other officer in either corporation was Virginia Pietrzycki, who served as secretary of both; and that Shifris and Pietrzycki were the only directors of the two corporations.

Following a hearing on defendant’s motion to dismiss pursuant to section 2 — 619(a)(3), the trial court entered an order dismissing plaintiff’s action. No action was taken on defendant’s motion to dismiss for forum non conveniens.

In its appeal, SMI argues that the parties to the Illinois and California actions were not the same and, therefore, it was error for the trial court to dismiss the action pursuant to section 2 — 619(a)(3). SMI further argues that because defendant failed to allege fraud or demonstrate that one of the corporations was a “dummy” or sham for the other, the trial court was precluded from finding that the parties were the same. We find that these arguments are wholly without merit.

Even a cursory reading of section 2 — 619(a)(3) and the case law interpreting it would reveal that there is no requirement that there be an allegation of fraud or impropriety before a trial court may dismiss an action on the ground that there is another action pending between the same parties for the same cause. Further, it is well settled that a dismissal pursuant to section 2 — 619(a)(3) does not require a finding that the litigants in the two actions are identical. (People ex rel. Fahner v. Climatemp, Inc. (1981), 101 Ill. App. 3d 1077, 428 N.E.2d 1096.) The “same parties” requirement of section 2 — 619(a)(3) is met where the litigants’ interests are sufficiently similar, even though the litigants differ in name or number. Cummings v. Iron Hustler Corp. (1983), 118 Ill. App. 3d 327, 454 N.E.2d 1078; Baker v. Salomon (1975), 31 Ill. App. 3d 278, 334 N.E.2d 313.

In the present case, SMI admitted in its response to defendant’s motion to dismiss that it was affiliated with SMC and that goods purchased by and billed to SMI were shipped to SMC. In addition, defendant presented documents establishing that one of SMI’s attorneys and another individual served as the only officers and directors of both SMI and SMC. Defendant also presented certified copies of pleadings filed with the California court in which SMC argued that the California action should be dismissed because the same parties were involved in an action pending in the Illinois courts. We find that this evidence is sufficient to support a conclusion that the interests of SMI and SMC are substantially similar for purposes of section 2— 619(a)(3).

SMI also argues that the trial court dismissal of the action was an abuse of discretion because the Illinois court was the first to acquire jurisdiction over the matter; because the court’s action would require SMI to assert its claim for relief under the Illinois Anti-Trust Act by way of a counterclaim in the California action; and because there was a.legitimate relationship between the case and the State of Illinois. We first consider SMI’s argument that the Hlinois court was the first to acquire jurisdiction.

SMI argues that, while the California action was filed one week before the Illinois action, the Illinois court was the first to acquire jurisdiction by virtue of the fact that service of process was obtained in the Illinois action five days before it was obtained in the California action. SMI acknowledges that a number of cases have held that the time of filing determines when jurisdiction is first acquired; however, SMI argues that the rule in those cases applies only to intrastate cases and not to cases involving concurrent interstate jurisdiction.

SMI has cited no authority in support of its claim that where there are actions pending between the same parties in two different States, the time of service of process will determine which State first acquired jurisdiction, and we have been unable to discover any case in which a court of this State has made such a finding. Further, as the Hlinois Supreme Court pointed out in A.E. Staley Manufacturing Co. v. Swift & Co. (1981), 84 Ill. 2d 245, 252, 419 N.E.2d 23:

“[N]o mention is made in section [2 — 619(a)(3)] of the respective filing times of the actions, and it is therefore apparent that the statute does not attribute any significance to that factor. *** That one action is filed prior to the other therefore would not be determinative.”

The supreme court also ruled in Staley that the grant or denial of a section 2 — 619(a)(3) motion rests within the discretion of the trial court. The trial court in Staley concluded that it was required to dismiss plaintiff’s action because a similar action had been filed previously in another State. Because the trial court believed it had no discretion in the matter and had not conducted an appropriate analysis of the situation, the supreme court conducted its own analysis and concluded that the trial court erred in dismissing the action. SMI argues that a similar result is required in the present case. We disagree.

The record in the present case reveals that the trial court was aware that the grant or denial of defendant’s motion was a matter of discretion. The record also reveals that the court considered a number of factors in addition to the time of filing in making its decision. Despite this, SMI contends that the court's decision amounted to an abuse of discretion because the action had a legitimate relationship to the State of Hlinois.

We do not find that the relationship between the State of Hlinois and the proceedings in the present case was so strong that the trial court’s dismissal could be considered an abuse of its discretion. Unlike Staley, where both plaintiff and defendant had their principal places of business in Hlinois, in the case before us, only SMI is an Illinois corporation. Defendant is a California corporation, as are Kyocera, defendant’s parent company, and SMI’s affiliate, SMC. In addition, we note that SMI argued repeatedly in the lower court that defendant conducted much of its business from a New Jersey office and that all of the records relating to the transactions at issue were located at defendant’s New Jersey office, thereby demonstrating that Illinois’ relationship to the proceedings is no stronger than that which could be claimed by California or New Jersey.

As for SMI’s contention that Staley mandates against dismissal because SMI would be required to file a counterclaim in the California action to recover under the Illinois Anti-Trust Act, we find that it also is without merit. We do not read Staley as setting forth a rule that no action may be dismissed pursuant to section 2 — 619(a)(3) where a party may be required to seek relief by way of a counterclaim in another State. Rather, as this court noted in Natural Gas Pipeline Co. v. Phillips Petroleum Co. (1987), 163 Ill. App. 3d 136, 146, 516 N.E.2d 527, the supreme court’s decision in Staley was based on the conclusion that the Illinois action encompassed the broader and largely dispositive litigation.

In the case before us, SMI’s Illinois action sought recovery for defendant’s alleged failure to comply with the terms of its volume bonus and cooperative advertising incentive programs. In the California action, Kyocera sought recovery for amounts it alleged it was owed in payment for goods shipped by it to SMC as well as a declaration of the parties’ rights under the incentive programs. Kyocera also alleged that under the terms of the incentive programs, failure to pay for goods purchased would preclude participation in the programs. Thus, it appears that the California litigation is the broader and more dis-positive of the two actions and, in light of this fact, we cannot say that there is a greater possibility of completely resolving the controversy between the parties in Illinois than in California.

In conclusion, we find no abuse of discretion in the granting of defendant’s motion to dismiss pursuant to section 2 — 619(a)(3) and we, therefore, affirm the trial court’s order dismissing the action.

Affirmed.

RIZZI and FREEMAN, JJ., concur.

       Plaintiff is affiliated with a California corporation and a Florida corporation. The California and Florida corporations are also named Skipper Marine Electronics, Inc. In this opinion “SMI” will be used when referring to the plaintiff in this action. “SMC” will be used when referring to the California corporation.


author: JUSTICE RIZZI

text:
    OTTO FRANKENBUSH, INC., Plaintiff, v. BRULE C. E. & E., INC., d/b/a Brule Incinerator Corporation, Defendant-Appellant (Jeffrey F. Firestone, Appellee).
    First District (3rd Division)
    No. 1—89—0904
    Opinion filed June 27, 1990.

      Paul Parker, of Chicago, for appellants.
    Lawrence M. Liebman and Ruth P. Walz, both of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant-appellant, Brule C. E. & E., Inc., d/b/a Brule Incinerator (Brule), appeals from an order of the circuit court of Cook County which denied its motion for sanctions against appellee Jeffrey Firestone (Firestone), attorney for plaintiff Otto Frankenbush, Inc. (Frankenbush), pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). We affirm.

In October 1988, Firestone filed a lawsuit on behalf of Frankenbush against Brule which alleged that Frankenbush rendered services and/or sold and delivered goods, wares and merchandise to Brule. The complaint further alleged that as a result, Brule owed Frankenbush $1,615.04 which remained unpaid. However, unbeknownst to Firestone, Brule had in fact mailed a check to Frankenbush for the entire amount on August 31, 1988. The check was cashed and cleared by Frankenbush’s bank on September 28, 1988. When Brule received the summons and complaint in this matter, it contacted Firestone as the attorney for Frankenbush and informed him that the account had been paid in full. Frankenbush also informed Firestone that the account had been settled and that he should dismiss the lawsuit.

However, Firestone did not dismiss the lawsuit prior to the return date on the complaint and, as a result, a default judgment was entered against Brule on November 29, 1988. Two days later on December 1, 1988, Firestone filed a release and satisfaction of judgment with the court. Thereafter, on December 29, 1988, Brule filed a motion to vacate the ex parte default judgment against it. Following a- hearing and with the agreement of Firestone, the judgment was vacated that same day. On January 9, 1989, the court granted the parties’ stipulated motion to dismiss the action. In February 1989, Brule filed a motion for sanctions against Firestone pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) Following a hearing, the court denied Brule’s motion. This appeal followed.

Section 2 — 611 of the Illinois Code of Civil Procedure provides in pertinent part:

“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.

Because of the penal nature of this paragraph providing for assessment of attorney fees against a party making unfounded allegations, this paragraph must be strictly construed; each of its requirements must be proved, and the burden of proof is on the party seeking the remedy offered. (In re Eatherton (1983), 119 Ill. App. 3d 174, 177-78, 456 N.E.2d 327, 330.) The statute governing the grant of attorney fees and costs due to untrue pleading was never intended to penalize an attorney or client for an honest mistake, but only to prohibit litigation without legal foundation. Peoples Gas Light & Coke Co. v. Black Steer Provision Co. (1985), 131 Ill. App. 3d 387, 391, 475 N.E.2d 1012, 1016.

In the present case, the trial court found that “[r]ule 2 — 611 deals with intentionally or through neglect allowing false pleadings to be filed. I don’t think that’s the circumstance here.” Application of section 2 — 611 to the present case leads us to conclude that the trial court ruled correctly. The record reveals that at the time that Firestone filed the complaint against Brule, he had reason to believe that its allegations were true. Brule has failed to satisfy its burden to prove that Firestone either knew or should have known that the payment had been made on the account before he filed suit. Because Firestone’s filing of the lawsuit after payment had been made was due to mistake, his actions did not violate the provisions of section 2— 611. We therefore conclude that the trial court did not err in denying Brule’s motion for section 2 — 611 sanctions against Firestone.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


text:
    CHICAGO STEEL RULE DIE AND FABRICATORS COMPANY, Plaintiff-Appellant, v. MALAN CONSTRUCTION COMPANY et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—1925
    Opinion filed June 27, 1990.

      Robert S. Minetz, of Cowan & Minetz, of Chicago, for appellant.
    Samuel V.P. Banks and Daniel J. Pierce, both of Chicago, for appellee Malan Construction Company.
    Dennis A. Marks and Eric L. Samore, both of Querrey & Harrow, Ltd., of Chicago, for appellees La Salle National Bank and American National Bank and Trust Company.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiff, Chicago Steel Rule Die & Fabricators Company, is the owner and operator of a manufacturing facility on the property commonly known as 6630 West Wrightwood in Chicago. Adjacent to the east line of the plaintiff’s property are certain railroad tracks. Immediately to the east of the railroad tracks is property which is currently owned by defendants La Salle National Bank and American National Bank and Trust Company. Defendant Malan Construction Company has performed certain construction work on the property, developing the land with a shopping center.

Plaintiff alleges that in 1965 and 1966, it constructed a second building on its property. The building was ready for occupancy on or about September 1, 1966. Prior to the construction of the second building, Carey Brickyard was a business which was situated on defendants’ parcel of land. At that time, there was a 29-foot dirt and gravel road located along the western edge of defendants’ parcel and along the eastern edge of the railroad tracks between plaintiff’s parcel and the intersection of Fullerton and Grand Avenues. The dirt road was subsequently paved with asphalt when another business, Jacobs Buick, began its operation on the Carey Brickyard premises in the 1970’s. The 29-foot roadway is the subject of this dispute.

Plaintiff alleges that it had continuous and uninterrupted use of the 29-foot roadway until 1987 and 1988, when defendants obstructed the roadway by constructing a curb. The construction has impeded plaintiff’s use of the easement and blocked the direct access to Fullerton and Grand Avenues. Defendants state that access to plaintiff’s facility may be had from Normandy Avenue, which runs parallel to the 29-foot roadway. At oral argument, plaintiff stated that it was not landlocked as a result of the interrupted use of the roadway.

In its two-count amended complaint, plaintiff sought a declaratory judgment that it had a prescriptive easement over defendants’ property (count I), and requested a mandatory injunction directing defendants to remove any obstructions which prevented its use of the roadway, restore the parcel to its original condition and enjoin them from constructing any future obstructions (count II).

Defendants filed motions to dismiss plaintiff’s complaint pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619). The trial court granted defendant’s motions, dismissing the complaint, and this appeal followed. We affirm.

History

In 1982, the City of Chicago filed its petition to condemn three parcels, designated 2, 3, and 4, in the circuit court of Cook County, under cause numbers 82 — L—3773 and 82 — L—3777. The petitions sought an order vesting the city with fee simple title to these parcels, free and clear of all claims and easements. Parcels 2, 3, and 4 overlapped and included the 29-foot roadway along the eastern edge of the railroad tracks described in Chicago Steel’s amended complaint. Each petition expressly named as defendants “unknown owners” who may have some right or claim in a portion of the parcels, but whose names were unknown and upon due and diligent inquiry could not be ascertained.

Pursuant to the Fullerton-Grand Blighted Commercial Area Project, on June 10, 1982, the court entered an order vesting the city with fee simple absolute title to parcels 2 and 3, and in November 1982 title was granted on parcel 4. Neither order was made subject to the purported prescriptive easement rights of plaintiff. The City of Chicago conveyed the parcels to Malan Construction Company (through American National Bank and Trust Company of Chicago under trust No. 66687).

Opinion

Plaintiff first contends that defendants’ section 2 — 615 motion should not have been granted. It maintains that the complaint was sufficient, as a matter of law, to state a claim for a finding of a prescriptive easement.

The granting of a motion to dismiss is within the sound discretion of the trial court. (Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 586, 440 N.E.2d 1022.) In determining whether to grant or deny a section 2—615 motion, a court must consider the legal sufficiency of the complaint based only on the allegations stated therein. (Goldstein v. Lustig (1987), 154 Ill. App. 3d 595, 598, 507 N.E.2d 164.) However, any exhibits attached to the complaint become a part thereof. Gold-stein, 154 Ill. App. 3d at 598.

A motion to dismiss admits all well-pleaded facts and reasonable inferences that can be drawn therefrom. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 430 N.E.2d 976; American International Hospital v. Chicago Tribune Co. (1985), 136 Ill. App. 3d 1019, 483 N.E.2d 965.) A cause of action should not be dismissed on the pleadings unless it plainly appears that no set of facts could be proved which would entitle the plaintiff to recover. (Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 716, 495 N.E.2d 1132.) “[I]f a motion to dismiss admits only facts well pleaded and not conclusions, then, in considering the motion, if after deleting the conclusions that are pleaded there are not sufficient allegations of fact which state a cause of action against the defendant, the motion must be granted regardless of how many conclusions the count may contain and regardless of whether or not they inform the defendant in a general way of the nature of the claim against him.” Knox College v. Celotex Corp., 88 Ill. 2d at 426.

The purpose of pleadings is to present, define and narrow the issues and limit the proof necessary at trial. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 307, 430 N.E.2d 1005.) Notice pleading is insufficient under our practice act (Northrop Corp. v. Crouch-Walker, Inc. (1988), 175 Ill. App. 3d 203, 211, 529 N.E.2d 784), and even though section 2—603 (Ill. Rev. Stat. 1987, ch. 110, par. 2—603), formerly section 33(3) (Ill. Rev. Stat. 1979, ch. 110, par. 33(3)), of our Code of Civil Procedure contains provisions concerning liberal construction, such provisions do not remedy the failure of a complaint to state a cause of action (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 17, 440 N.E.2d 96). While plaintiffs are not required to plead their evidence, their complaint should contain sufficient material allegations of ultimate facts. Reel v. City of Freeport (1965), 61 Ill. App. 2d 448, 454, 209 N.E.2d 675.

The question before us is whether the complaint here properly alleged sufficient facts to defeat defendants’ section 2 — 615 motion. In order to determine the sufficiency of plaintiff’s pleadings, we must first consider the elements necessary to plead a claim for a prescriptive easement. In essence, to establish an easement by prescription, the use must be of such character as is required to establish title to land in fee by adverse possession. (Rita Sales Corp. v. Bartlett (1970), 129 Ill. App. 2d 45, 51-52, 263 N.E.2d 356.) Thus, in order to claim a prescriptive right, the use must have been hostile or adverse, uninterrupted, exclusive, continuous and under a claim or title inconsistent with that of the true owner. (Petersen v. Corrubia (1961), 21 Ill. 2d 525, 531, 173 N.E.2d 499.) These elements must have shared a concurrent existence for a period of 20 years. Ill. Rev. Stat. 1987, ch. 110, par. 13—101; Joiner v. Janssen (1981), 85 Ill. 2d 74, 82, 421 N.E.2d 170.

In its complaint, plaintiff first alleged that in 1965 and 1966 it constructed a second building on its parcel of property; that the dirt-gravel road was subsequently paved when Jacobs Buick began its operation on the brickyard premises in 1970; that during the “1960’s, during the construction of its second building, construction workers used the road,” as did agents, employees, suppliers and customers of plaintiff; and that the travel included both automobile and truck travel. Plaintiff then concluded that the use was open, visible and notorious.

We do not take issue with the sufficiency of these allegations. However, we find the remainder of plaintiffs pleadings to be largely conclusory and lacking sufficient allegations of fact to support its claim.

Specifically, plaintiff next alleged that the use continued, uninterrupted until defendant obstructed the roadway during its construction in 1987 and 1988; that plaintiff has used the property “with actual and constructive knowledge and acquiescence of defendants and the previous owners,” without their express permission, and that their use was not based on any other party’s right to use the roadway. Plaintiff then concluded that the use has been adverse, exclusive, continuous and under claim of right.

First, there are no facts pleaded wherein plaintiff alleges that it claimed title as against the true owner for the 20-year period. “Hostility of possession requires an intent to claim the fee as against the true owner and all others, and one’s claim to the fee is demonstrated by using and controlling the land as an owner.” (Morris v. Humphrey (1986), 146 Ill. App. 3d 612, 616, 496 N.E.2d 1209.) The claim must be hostile from its inception and continue for the statutory period. Wiedrich v. Howard (1956), 7 Ill. 2d 589, 593, 131 N.E.2d 508.

Here, the fact in the pleadings, which alleged that in 1970, someone, not plaintiff, paved the roadway, is evidence that the true owner had control and dominion over the roadway, and this conduct should have put plaintiff on notice of such. Further, there are no allegations in the pleadings that plaintiff made any protests or complaints that the pavers were trespassing or interfering with plaintiff’s use of the roadway. Nor is there any allegation that plaintiff bore the costs of paving the roadway or in any way contributed to its maintenance. We believe that these facts are inconsistent with a claim of ownership.

Secondly, plaintiff’s statement that its use was not based on any other party’s right is not sufficient to demonstrate the exclusivity element. To establish exclusivity, it is unnecessary to show that only the claimant has made use of the way, because exclusive use means that the claimant’s right to use the lane does not depend upon a like right in others. (Light v. Steward (1984), 128 Ill. App. 3d 587, 594, 470 N.E.2d 1180.) However, exclusivity does require that the rightful owner be altogether deprived of possession. (Morris, 146 Ill. App. 3d at 612.) “A joint possession by two, even though the claim of each is adverse to the other, -will not be a disseizin *** unless the rightful owner is altogether deprived of possession.” (Towle v. Quante (1910), 246 Ill. 568, 576, 92 N.E. 967.) Here, there is no allegation that the true owners were deprived of use or possession of the roadway.

Moreover, plaintiff’s allegations do not support a conclusion that its use was continuous. For a use to be continuous it is imperative that there be no break in the claimant’s attitude of mind which would amount to a recognition of subordination to the servient owner’s consent. (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 1052, 307 N.E.2d 424.) In this case, when the road was paved, we believe that plaintiff was alerted of its subordinate right, thus defeating any claim of continuous use.

Finally, there was no allegation that plaintiff ever used the roadway under a claim of right inconsistent with that of defendants. The pleadings do not evidence any conversation or conduct which occurred when plaintiff began using the roadway in the 1960’s which disclaimed the true owner’s title. Absent any facts which would demonstrate that plaintiff claimed such a right, this element was not sufficiently pleaded.

Plaintiff’s allegations that defendants acquiesced in plaintiff’s use and never gave express permission are insufficient to defeat a finding of permissive use. Every presumption is in favor of the record titleholder (Perivoliotis v. Pierson (1988), 167 Ill. App. 3d 259, 263, 521 N.E.2d 254), and the use of vacant and unenclosed land is presumed to be permissive and not adverse. (Light, 128 Ill. App. 3d 587, 470 N.E.2d 1180.) Mere permission to use the property cannot ripen into a prescriptive or adverse possessory right regardless of the time such permissive use is enjoyed. (Morris v. Humphrey (1986), 146 Ill. App. 3d 612, 615-16, 496 N.E.2d 1209.) As was stated in Waller v. Hildebrecht (1920), 295 Ill. 116, 124, 128 N.E. 807:

“The use of a way without objection or hindrance is not inconsistent with use by permission. [Citations.] It is a matter of common observation that the public makes use of any open, uninclosed space which affords a more convenient way of reaching any given place than the regular way would, and it would be contrary to established legal principles, and to natural justice as well, to allow the public, under such circumstances and by the mere acquiescence of the owner, to acquire the permanent right of way.”

We find that the amended complaint as a whole fails to allege sufficient facts to state a cause of action for the declaration of a prescriptive easement. Accordingly, we conclude that the trial court did not err in dismissing it. Moreover, even had the complaint not been dismissed under section 2 — 615, it could not have survived defendants’ section 2 — 619 motion.

The purpose of a section 2 — 619 motion is to provide a mechanism to dispose of issues of law or easily proved issues of fact. (Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 703, 501 N.E.2d 156.) It may be granted where the claim asserted against the defendant is barred by other affirmative matter defeating the claim. However, if it cannot be determined with reasonable certainty that the alleged defense exists, the motion should be disallowed. (Dangeles v. Marcus (1978), 57 Ill. App. 3d 662, 667, 373 N.E.2d 645.) The court may, in its discretion, decide questions of fact “upon the hearing of the motion.” (North Park Bus Service, Inc. v. Pastor (1976), 39 Ill. App. 3d 406, 349 N.E.2d 664.) However, in deciding the merits of the motion, a trial court cannot determine disputed factual issues solely upon affidavits and counteraffidavits. Premier Electrical Construction Co. v. La Salle National Bank (1984), 132 Ill. App. 3d 485, 477 N.E.2d 1249.

Plaintiff contends that its complaint should not have been dismissed on defendants’ section 2 — 619 motion, and it urges three arguments in support thereof.

First, plaintiff argues that its complaint was not barred by the condemnation judgments because it was not a party to the proceeding. Plaintiff argues that even though the city served notice on “unknown owners” (Ill. Rev. Stat. 1987, ch. 110, par. 2—413), since plaintiff was a known owner, it should have been personally served as a defendant in the case. Plaintiff concludes that since it was not served, the court lacked jurisdiction to adjudicate its interest in the property.

In its pleadings plaintiff alleged, generally, that use of the road commenced in the 1960’s, and specifically, that use occurred before and after 1965. At oral argument, plaintiff stated that at the time of the city’s condemnation action, plaintiff had been using the roadway for 17 years. The condemnation proceeding occurred in 1982.

As additional support for its argument, plaintiff directs our attention to an affidavit submitted by Gerald Guanci. According to Guanci, in 1982 many of plaintiff’s employees traveled on the roadway and anyone viewing the property in the morning or afternoon would have seen about 50 cars. Based on this fact, plaintiff argues that defendants were required to inquire of plaintiff’s interest in the property. Plaintiff then asserts, quoting Dana Point Condominium Association, Inc. v. Keystone Service Co. (1986), 141 Ill. App. 3d 916, 922, 491 N.E.2d 63, that a “prospective purchaser is charged with constructive notice of all facts which a reasonable inquiry would have disclosed.”

Proof of adverse possession must be strict, clear, positive and unequivocal, and cannot be made by implication or inference. (Cagle v. Valter (1960), 20 Ill. 2d 589, 592, 170 N.E.2d 593; Tapley v. Peterson (1986), 141 Ill. App. 3d 401, 405, 489 N.E.2d 1170.) In order to have acquired a prescriptive easement, and be entitled to notice of the condemnation proceedings as a known owner, plaintiff needed to have been in possession of the easement since 1962. Plaintiff’s allegation of use in the 1960’s, and more specifically for 17 years, is insufficient to establish the 20-year statutory requirement.

Based on the undisputed allegations in plaintiff’s complaint the court could determine that plaintiff had not acquired an interest in the property by the time of the 1982 condemnation proceeding. Having acquired no interest, plaintiff was neither a known nor an unknown owner. Thus, it was not entitled to notice. Further, rehearing of the condemnation proceeding is barred by the doctrine of res judicata.

Plaintiff next argues that even though it had only used the roadway for 17 years by the time of the condemnation proceeding, the prescriptive period continued to run. According to plaintiff, the city’s acquisition of the property after the condemnation proceeding did not toll the running of the statute for the 20-year period. Plaintiff does concede the established rule that the statute of limitations does not run against a municipal corporation in respect to property held for a public use. (See Zemple v. Butler (1959), 17 Ill. 2d 434, 438, 161 N.E.2d 818; Phillips v. Leininger (1917), 280 Ill. 132, 117 N.E. 497; People ex rel. Kenney v. City of Goreville (1987), 154 Ill. App. 3d 1091, 507 N.E.2d 1247.) Notwithstanding that, plaintiff maintains, since this property was held for a private shopping center, the rule does not apply, and the period continued to run.

Plaintiff cannot prevail on this argument. True, the acquisition of land by eminent domain proceedings must be for a public purpose, and land cannot be condemned for private use. However, it does not follow that because the land may subsequently be sold to a private developer its taking and clearance cannot have been for a public purpose. (City of Chicago v. Barnes (1964), 30 Ill. 2d 255, 257, 195 N.E.2d 629.) Moreover, condemnation powers are properly exercised if the express use is for a public purpose even though the ultimate use has not as yet been determined at the time of condemnation. Barnes, 30 Ill. 2d at 257.

In City of Chicago v. American National Bank & Trust Co. (1986), 146 Ill. App. 3d 784, 786, 497 N.E.2d 413, the city, as part of the South Loop Redevelopment Project, began condemnation proceedings and acquired title to the block that included property owned by the defendant. The complaint alleged that the property was being condemned as part of the South Loop Redevelopment Project, an endeavor necessitated by the public interest. The defendant argued that the condemnation proceeding was void because the city failed to make a prima facie case that the public necessity required that it take the defendant’s property. (146 Ill. App. 3d at 787.) The reviewing court held that, in the absence of a traverse, the city was not obligated to show that it was acquiring the defendant’s property for a valid public purpose; however, it had done so. (146 Ill. App. 3d at 788.) The court held that the taking for redevelopment purposes was not an abuse of the city’s power. 146 Ill. App. 3d at 789.

We have reviewed a copy of the city’s condemnation petition, included as part of defendants’ brief. Therein, the city alleged that the Commercial District Development Commission designated the subject property as a “blighted commercial area,” which because of, inter alia, dilapidation, failure to produce a proper share of tax revenues, or provide employment commensurate with the capacity of the area, was detrimental to the public safety, health, morals, welfare, and economic stability. We believe that the city properly exercised its right to take the property to serve the public interest, and any rights to the easement were interrupted by the condemnation proceedings. Further, where the continuity of adverse use is interrupted before the elapse of the statutory period, the benefit of the prior adverse use is lost and the adverse claimant must commence again. Yunkes v. Webb (1930), 339 Ill. 22, 26, 170 N.E. 709.

Plaintiff cites to Phillips v. Leininger (1917), 280 Ill. 132, 117 N.E.2d 497, as support for the proposition that where the public has no interest in the land in question the period of time necessary to acquire a prescriptive easement continues to run during the time the property is held by the county. Plaintiff’s reliance is misplaced.

In Phillips, the commissioners of highways in Norwood Park claimed a prescriptive easement in a highway which had been laid out across hospital grounds. (280 Ill. at 133-34.) The highway had always been maintained, graded, improved, managed and controlled by the highway commissioners of the town of Norwood Park, and any work done or improvements made had been paid for with the funds of Nor-wood Park. (280 Ill. at 134.) The State Board of Administration, which was in charge of the hospital, obstructed use of the highway by placing gates across it. 280 Ill. at 134.

The Board argued that the public could not acquire a prescriptive right to the highway because the limitations statute did not run against the State, which acquired ownership from the county. (280 Ill. at 134-35.) The court distinguished this case from those wherein the property involved is held in trust for a particular use for the benefit of the general public. The court stated that where the property is held by a municipality for the special benefit of the inhabitants of that particular municipality, the rule has no applicability. Since the public in general had no interest in common with the people of Norwood Park, the county was subject to the limitations laws. (280 Ill. at 136.) The statute of limitations extends only to matters affecting public rights as distinguished from private and local rights. 280 Ill. at 135.

Here, there is no evidence that the city took the property for the special benefits of its inhabitants in particular. Rather, the public in general has an interest in common with the people of the city concerning this property. Thus, having held the property for the benefit of the public in general, the city was not subject to the limitation laws.

Plaintiff’s third argument is that neither the city nor the present owners acquired title to the property clear of plaintiff’s right. Defendants respond that any prescriptive interest which plaintiff might have had was terminated by the city's taking of the servient tenement. Defendants rely on section 507 of the Restatement of Property, which provides:

“An easement is extinguished by a taking of eminent domain of the servient tenement, or of an interest therein, to the extent to which the taking permits a use inconsistent with the continuance of the use authorized by the easement.” Restatement of Property §507, at 3092 (1944).

Defendants have cited to no Illinois cases on this issue, and our research has revealed none. However, we note that other jurisdictions have adopted the restatement approach. See Hartford National Bank & Trust Co. v. Redevelopment Agency of City of Bristol (1973), 164 Conn. 337, 321 A.2d 469; Burnquist v. Cook (1945), 220 Minn. 48, 19 N.W.2d 394; Curtis v. Redevelopment Authority of City of Philadelphia (1978), 482 Pa. 58, 393 A.2d 377; Houston v. McCarthy (Tex. Civ. App. 1971), 464 S.W.2d 381.

Here, the city acquired the servient estate and, according to plaintiff, there is now construction of a shopping center on the property. Plaintiff’s continued use of the roadway is inconsistent with the defendants’ planned use for the property. Thus, under the Restatement approach, which we adopt, the easement is extinguished.

Plaintiff’s third and final contention on appeal is that the section 2 — 619 motion should have been denied because there was a disputed question of fact as to whether the city conducted a diligent inquiry before utilizing service by publication. Plaintiff maintains that an evidentiary hearing was required. Since we have determined that plaintiff acquired no interest in the property by the time of the condemnation proceeding, and that it was not entitled to notice as a known owner, it is irrelevant whether the city exercised diligence in inquiry before utilizing service by publication.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

CERDA, P.J., and WHITE, J., concur.