author: JUSTICE HARRISON JUSTICE HOWERTON,

text:
    DAVID B. GARAVALIA, as Ex’r of the Estate of Arvo Lake, Deceased, Plaintiff-Appellant, v. HEAT CONTROLLER, INC., et al., Defendants-Appellees.
    Fifth District
    No. 5—89—0749
    Opinion filed April 19, 1991.

      HOWERTON, J., dissenting.
    Paula M. Newcomb, of Benton, for appellant.
    Brad K. Bleyer, of Bleyer & Bleyer, of Marion, for appellees.
   JUSTICE HARRISON

delivered the opinion of the court:

This is an appeal pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) from an order of the circuit court of Franklin County which granted the motion of defendants Addison Products Company, Inc., and Heat Controller, Inc., to dismiss counts I, II, III, V, VI, IX, and X of plaintiff’s second amended complaint for failure to state a cause of action. For the reasons which follow, we reverse and remand for further proceedings.

Although it did not so specify, defendants’ motion to dismiss was clearly brought pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—615). It is axiomatic that in ruling on a motion to dismiss under section 2 — 615 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), a court must accept as true all well-pleaded facts in the pleading attacked, as well as all reasonable inferences which can be drawn from those facts that are favorable to the pleader. (Bertetto v. Sparta Community Unit District No. 140 (1989), 188 Ill. App. 3d 954, 955, 544 N.E.2d 1140, 1141.) A cause should not be dismissed on the grounds that the pleadings fail to state a cause of action unless, clearly, no set of facts could be proved under the pleadings which would entitle the plaintiff to relief. (188 Ill. App. 3d at 955, 544 N.E.2d at 1141-42.) Plaintiff’s second amended complaint is not fatally deficient under this standard.

The complaint alleges that the decedent, Arvo Lake, purchased a window air conditioner from Odell Giles on or about May 1, 1986. The unit was manufactured by defendants Addison Products Company, Inc., and Heat Controller, Inc., and was delivered to and installed in the decedent’s residence by Giles.

At that time the decedent was 71 years old and retired. The decedent relied on Giles, who was in the business of selling air conditioners, to select and furnish a unit which was suitable for cooling his residence. The particular unit selected by Giles was, according to the manufacturers, suitable for use in a residence such as the decedent’s. The unit was installed in decedent’s residence in accordance with the instructions contained in the owner’s manual, the decedent made no modifications to the unit once it was installed, and the decedent attempted to operate the unit as directed in the owner’s manual.

Plaintiff’s second amended complaint indicates that the decedent relied upon the unit to cool his residence and that because he remained at home a good deal of the time, he used the unit for extended periods. At the time the decedent purchased the unit, however, it contained a hole in the sealed refrigerant system, which allowed the refrigerant to seep out. By the beginning of August 1986, the unit ceased cooling. The blower continued to operate, but the air conditioner would produce only warm air. As a result, the decedent’s residence reached a. temperature of at least 96 degrees Fahrenheit. This, in turn, caused the decedent to suffer from hyperthermia, which produced acute circulatory failure from which he died. When the decedent’s body was discovered, it registered a temperature of 108.4 degrees.

Plaintiff, David B. Garavalia, as executor of the decedent’s estate, subsequently commenced this action in the circuit court of Franklin County. Plaintiff’s complaint was in 10 counts. Of these, only counts I, II, III, V, VI, IX, and X were directed against the defendants involved in this appeal. Counts I and II alleged breach of an express warranty. Count III alleged breach of an implied warranty. Counts V and VI averred that defendants were guilty of negligence, while counts IX and X sought recovery based on strict products liability.

The circuit court dismissed counts I, II, and III of plaintiff’s second amended complaint, which alleged breach of warranty, because and only because those counts included a claim for consequential damages. This was error. Actions for breach of warranty are governed by the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1987, ch. 26, par. 1—101 et seq.). Although section 1 — 106(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 1—106(1)) states that “neither consequential or special nor penal damages may be had except as specifically provided in this Act or by other rule of law,” section 2—714(3) of the Code (Ill. Rev. Stat. 1987, ch. 26, par. 2— 714()) provides such a specific exception. That provision expressly authorizes the recovery of “incidental and consequential damages” in a proper case pursuant to the terms of section 2 — 715 of the Code (Ill. Rev. Stat. 1987, ch. 26, par. 2—715). Recoverable consequential damages under section 2 — 715 include “injury to person or property proximately resulting from any breach of warranty.” Ill. Rev. Stat. 1987, ch. 26, par. 2—715(2)(b).

That consequential damages are recoverable in actions for breach of warranty is an established proposition. (See, e.g., Burrus v. Itek Corp. (1977), 46 Ill. App. 3d 350, 358, 360 N.E.2d 1168, 1173.) Equally well established is the proposition that to be recoverable under section 2 — 715(2) (Ill. Rev. Stat. 1987, ch. 26, par. 2—715(2)), the consequential damages must have been reasonably foreseeable. (McGrady v. Chrysler Motors Corp. (1977), 46 Ill. App. 3d 136, 140, 360 N.E.2d 818, 821.) A question of foreseeability may sometimes be decided by the court as a matter of law. (See, e.g., Malorney v. B & L Motor Freight, Inc. (1986), 146 Ill. App. 3d 265, 269, 496 N.E.2d 1086, 1089.) As a general rule, however, questions of foreseeability are ordinarily for the jury to resolve. The courts of this State have so held in a variety of contexts (see, e.g., Falkenbury v. Elder Cadillac, Inc. (1982), 109 Ill. App. 3d 11, 18, 440 N.E.2d 180, 186; Medina v. Air-Mite Devices, Inc. (1987), 161 Ill. App. 3d 502, 507, 515 N.E.2d 770, 773), and this rule has been expressly applied in the context of claims for consequential damages based on breach of warranty under the Uniform Commercial Code (see Annot., Buyer’s Inci dental & Consequential Damages from Seller’s Breach under UCC §2—715, 96 A.L.R.3d 299, 329 (1980); 67A Am. Jur. 2d Sales §1314, at 739 (1985)). Foreseeability should be decided as a matter of law only where the facts demonstrate that plaintiff could never be entitled to recovery. (Medina v. Air-Mite Devices, Inc. (1987), 161 Ill. App. 3d 502, 507, 515 N.E.2d 770, 773.) This is not such a case.

The pleadings here show that Arvo Lake, the decedent in this case, lived in Benton, Illinois. Benton is located in a portion of this State where the summer heat and humidity are often intense. Heat-related fatalities in this climate are not uncommon. The risk of death appears to be particularly great for the aged and infirm. Because of physical limitations or fear of crime, or for economic reasons, such persons may have no option but to remain in their homes regardless of the heat. For them, air conditioning units are more than just another “benign” household appliance. They may, quite literally, be life-saving devices, as critical to health and safety as a dialysis machine is to a kidney patient.

When such a device fails, death is certainly reasonably foreseeable. Indeed, a defective air conditioner may be more life threatening than no air conditioner at all. If a person has no air conditioning, he will ordinarily open windows or doors to provide some natural ventilation. Where an air conditioning unit is installed, on the other hand, efficient operation of the unit requires that all doors and windows be tightly sealed. All natural ventilation is cut off, and the user typically relies exclusively on the unit to provide cooling and circulation. If the unit fails, the user may therefore be left to swelter in an environment far more stifling and oppressive than if the unit had never been installed and the house had never been sealed up.

The suggestion has been made that when faced with a failing air conditioner, a purchaser could reasonably be expected to simply flip the switch, unplug it and plug it back in, curse it, call a repairman, and, when all else fails, leave the house for a leisurely stroll to the nearest shade tree or lake. Such an assumption has no basis in the pleadings before us and seems to us to be completely unrealistic.

We do not profess to have any special knowledge of how air conditioners or any other mechanical devices operate. However, by virtue of the defect alleged here, a leak in the refrigerant system, we think it can be reasonably inferred that the unit did not fail all at once, but instead lost its cooling power gradually over the three-month period between when the decedent bought it and the time he died. This gradual loss of function, coupled with the fact that the blower on the unit continued to operate, may have prevented the decedent from comprehending that the unit was not acting properly and was in need of repair. Moreover, even if the decedent did realize that the unit was not operating as it should, he may have believed that the operation of the blower was adequate to ventilate his house and prevent it from becoming dangerously overheated.

In any case, senior citizens such as decedent often do not have the luxury of simply leaving their homes and seeking out the nearest shade tree or lake. As previously suggested, they may suffer from some disability that prevents them from going outdoors at all or even raising a window. They may live in an area where it is unsafe for old people to venture out or to leave their windows open. They may reside in neighborhoods where there are no shade trees or other sanctuaries from the heat, and they may not have the stamina or wherewithal to go elsewhere.

Taking all reasonable inferences in favor of plaintiff, as we must, we therefore do not believe that we can say as a matter of law that defendants could not reasonably have foreseen that the failure of their air conditioning unit would result in the death of a purchaser such as plaintiff. The circuit court’s dismissal of counts I, II, and III must therefore be reversed. We likewise believe that we must reverse the circuit court’s dismissal of counts V and VI, which alleged negligence.

A complaint for negligence, to be legaUy sufficient, must set out facts that establish the existence of a duty owed by the defendant, a breach of that duty, and an injury proximately caused by that breach. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 395-96, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077.) The defendants here do not dispute that the second and third of these elements were properly alleged. Their sole contention is that they cannot be said to have owed any duty to plaintiff’s decedent. In our view, this conclusion is wholly untenable.

The defendants found their argument that no duty existed upon the proposition that it was not reasonably foreseeable that the failure of an air conditioner would result in the actual death of the person who had purchased it. For the reasons stated above, we do not believe that this is so. Moreover, this argument overlooks that in determining whether an injury was reasonably foreseeable so as to warrant the imposition of a duty, it is not essential that the defendant should have foreseen the precise injury resulting from the defendant’s action or inaction. (See Carter v. Indiana Harbor Belt R.R. Co. (1989), 190 Ill. App. 3d 1052, 1061-62, 547 N.E.2d 488, 495.) Whether defendants could reasonably have foreseen that a purchaser would actually be killed as was the decedent is therefore not dispositive.

The defendants’ duty analysis is not only incorrect, it is also completely unnecessary. Our supreme court has recently recognized that “ ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 527, 513 N.E.2d 387, 396, cert. denied (1988), 485 U.S. 905, 99 L. Ed. 2d 236, 108 S. Ct. 1077.) In the case of product manufacturers such as defendants, these policy considerations have already been weighed and balanced by this court. We have specifically held that a manufacturer has a duty of care to design and manufacture a product that will be reasonably safe for its intended and any reasonably foreseeable uses. (Cornstubble v. Ford Motor Co. (1988), 178 Ill. App. 3d 20, 24, 532 N.E.2d 884, 886.) Given this, there can be no serious doubt that the defendants owed a duty to plaintiff’s decedent here. Whether that duty was breached and whether the decedent’s death was a proximate result of that breach are questions which should ultimately be decided by the jury, but the fact that a duty existed is thus clear and unequivocal as a matter of law.

Finally, we must reverse the dismissal of counts IX and X, which sought recovery based on strict products liability. Recovery from a manufacturer under the theory of strict products liability requires a plaintiff to prove that his injuries resulted from a condition of the product, that the condition was unreasonably dangerous, and that the condition existed at the time the product left the manufacturer’s control. (Medina v. Air-Mite Devices, Inc. (1987), 161 Ill. App. 3d 502, 505-06, 515 N.E.2d 770, 772.) Defendants here acknowledge this standard, but contend that the air conditioner was not unreasonably dangerous as a matter of law. We disagree. A product is considered to be unreasonably dangerous only when the product is dangerous to an extent beyond that which would be contemplated by the ordinary person with the ordinary knowledge common to the community as to its characteristics. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 155, 507 N.E.2d 1213, 1226.) We believe that an ordinary consumer would not contemplate being killed by an air conditioner which is defective in that it leaked itself dry of Freon and failed to cool, which is precisely what is alleged to have happened here; Accordingly, the complaint did adequately aver that the unit was unreasonably dangerous.

This conclusion is in no way inconsistent with our view that the death of a purchaser such as the decedent was a reasonably foreseeable consequence of the defect in the air conditioning unit. To the contrary, we think that the risk of death is particularly likely precisely because an ordinary consumer would not appreciate the risk to life posed by an air conditioning unit which had lost its Freon and blew only hot air.

In any case, the issue of whether a product is unreasonably dangerous is normally a question of fact for the jury. (Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 511, 373 N.E.2d 1354, 1367.) Based on the pleadings here, we can see no reason to prevent the jury from resolving that question.

For the foregoing reasons, we reverse the order of the circuit court of Franklin County dismissing counts I, II, III, V, VI, IX, and X, and remand for further proceedings.

Reversed and remanded.

RARICK, P.J., concurs.

JUSTICE HOWERTON,

dissenting:

I disagree with the proposition that on a hot day, anything is foreseeable, for I think that that is the upshot of the majority opinion. Therefore, I respectfully dissent.

I view the dispositive issue in this case to be whether it was reasonably foreseeable that Arvo Lake would become overheated and die because an air conditioner failed to blow cold air.

Counts I and II of plaintiff’s complaint assert that: (1) defendants, Addison and Heat Controllers, were in the business of manufacturing, distributing, and placing air conditioner units into the stream of commerce; (2) defendants manufactured the air conditioner in question; (3) Lake purchased the air conditioner; (4) at the time of the purchase, the air conditioner had an express warranty which guaranteed that the unit’s sealed refrigerant system would be free from defect for five years; (5) Lake relied on the express warranty; (6) defendants breached the express warranty because there was a leak in the sealed refrigerant system; (7) Lake was attempting to cool his house with the unit at a time within the warranty period; (8) as a direct result of defendants’ breach, Lake’s residence reached 96 degrees, his body 108.4 degrees, and he suffered hyperthermia and acute circulatory failure causing death; and (9) because of this breach of warranty, plaintiff sustained economic loss including the value of the air conditioner and funeral expenses, and “other consequential damages.”

Count III was much the same, but alleged that defendants breached an implied warranty of merchantability, and also sought consequential damages.

While the Uniform Commercial Code allows for the recovery of consequential damages in a breach of warranty action (Ill. Rev. Stat. 1987, ch. 26, par. 2—715(2)), such damages may be recovered only in a “proper case.” (Ill. Rev. Stat. 1987, ch. 26, par. 2—714(3).) A “proper case” means a case where consequential damages are “reasonably foreseeable.” (McGrady v. Chrysler Motors Corp. (1977), 46 Ill. App. 3d 136, 360 N.E.2d 818.) “Foreseeability means that which is objectively reasonable to expect, not merely what might conceivably occur.” (Emphasis in original.) Winnett v. Winnett (1974), 57 Ill. 2d 7, 12-13, 310 N.E.2d 1, 5.

In my judgment the majority has strained to supply inferences to support plaintiff’s cause of action, an exercise that carries the majority into the dark and forbidding realm of “what might conceivably occur.” The majority speaks of: (1) plaintiff’s limitations; (2) the heat of a southern Hlinois summer; (3) the potential for crime in plaintiff’s neighborhood; and (4) the gradual loss of coolant in the air conditioner. For example, the majority notes that Lake was 71 years old and retired. From that, the majority assumes physical limitations that will make a cause of action lie. But we cannot, we should not, make those assumptions: not every 71-year-old man is so infirm that he cannot recognize that heat in his house is rising to dangerous levels. It is, therefore, wrong to supply such an inference. It is the duty of the plaintiff to plead special circumstances, if they exist. If none are pled, judges do best to presume that none exist. In supplying inferences, the majority has relieved plaintiff from pleading the necessary information, the special circumstances, necessary to establish foreseeability.

Section 2—715(2)(b) of the Code specifically provides that consequential damages include “injury to person or property proximately resulting from any breach of warranty.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 26, par. 2—715(2)(b).) “Proximate result” means a result “ordinarily following from the negligence complained of, unbroken by any independent cause, which might have been reasonably foreseen.” (Black’s Law Dictionary 1391 (4th ed. 1957).) Although the definition of “proximate result” contains the word “negligence, that definition should not be viewed as engrafting general principles of negligence law on this provision of the Uniform Commercial Code. Our concern here is not negligence, but rather is with the meaning and effect of the term “proximately resulting” within the Uniform Commercial Code. In this regard, the definitions of the term, “a proper case,” and the term, “proximate result,” establish that “reasonable foreseeability” necessarily must be addressed when determining whether consequential damages are available in a breach of warranty action brought not for property damage but for personal injuries.

As a matter of law the manufacturer of an air conditioner, a rather benign machine, has no reason to reasonably foresee that an air conditioner’s failure to cool would kill a purchaser. This is but a lawyer’s way of stating the obvious. Air conditioner manufacturers reasonably would believe that if an air conditioner failed to blow cold air, the purchaser might flip the switch a time or two, or perhaps unplug it and plug it back in, maybe even curse it, or perhaps call a repairman; but, when all failed the purchaser could be expected to walk outside to the shade, or maybe even go to the lake, instead of remaining in a hot house until overcome and tilled by the escalating heat.

Had the complaint alleged special circumstances, the case might be different. Had the complaint, for example, alleged that leaking Freon caused plaintiff to pass out, rendering him powerless to do anything about his situation so that the rising heat overtook him and stole his life, then the foreseeability equation might look different.

Under the allegations of this complaint, however, there can be no “reasonable foreseeability,” and consequently, no “proximate result” within the meaning of the Uniform Commercial Code. Therefore, based on the pleadings, I believe that Lake’s death was not a proximate result of defendants’ breach of warranty, and I agree with the circuit court that this is not a “proper case” in which consequential damages can be sought.

Whether Lake’s injury was reasonably foreseeable is also the critical question concerning plaintiff’s negligence counts. To state a cause of action in negligence, the allegations of the complaint must establish the existence of a duty owed by the defendants to the plaintiff, a breach of that duty, and an injury proximately resulting from that breach. (Durr v. Stille (1985), 139 Ill. App. 3d 226, 487 N.E.2d 382.) The existence of a duty, the breach of which could have been a proximate cause of plaintiff’s claimed damages, first must be determined by the court as a matter of law. Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 462 N.E.2d 502.

In determining whether a duty exists, a court must apply a foreseeability test. That test makes defendant liable for any injury which is objectively reasonable to occur; however, it does not make defendant liable for anything which conceivably might occur. (Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 519 N.E.2d 10, appeal denied (1988), 119 Ill. 2d 576, 522 N.E.2d 1258.) Under these pleadings, Lake’s unfortunate death indeed is something which might conceivably occur. But, under the pleadings, it is not something objectively reasonable to occur. As a matter of law, under the circumstances pled, Addison and Heat Controllers had no duty to Lake; therefore, I believe that the circuit court was correct in dismissing counts V and VI of plaintiff’s second amended complaint.

The circuit court dismissed counts IX and X, which sought recovery upon strict products liability, on grounds that defendants owed no duty to Lake. Plaintiff complains that the dismissal was erroneous because strict liability in tort is based on the condition of the product, not the conduct of the defendant. Therefore, duty analysis has no place in strict liability theory. Plaintiff is correct. Stanfield v. Metalist Industries, Inc. (1975), 34 Ill. App. 3d 635, 340 N.E.2d 276.

Nevertheless, under the facts pled, the failure to blow cold air does not make an air conditioner unreasonably dangerous.

To state a cause of action in a strict products liability situation, plaintiff must allege: (1) that defendant placed a defective product into the stream of commerce; (2) that the defect made the product unreasonably dangerous; (3) that defect existed at the time the product left the manufacturer’s control; and (4) that the defect was a proximate cause of the injury. Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182.

The majority correctly relies upon the “consumer expectation” test of strict products liability. Under that test, a defective condition of a product will only be considered unreasonably dangerous when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Riordan v. International Armament Corp. (1985), 132 Ill. App. 3d 642, 650, 477 N.E.2d 1293, citing Restatement (Second) of Torts §402A, comment i, at 352-53 (1965).) The majority, however, misinterprets the test.

The majority correctly points out that Arvo Lake did not expect to be killed by his air conditioner. For that matter, neither did the manufacturer. However, whether Arvo Lake expected to be killed by his air conditioner is not the test. Rather, the test is whether Arvo Lake would expect to be killed (and this is where the majority errs) by his air conditioner given its intended function, namely that it provide cool comfort, not that it keep him alive. Considering the type of injury Lake sustained and considering the air conditioner’s intended function, this air conditioner was not unreasonably dangerous.

A manufacturer is not under a duty in strict liability to design a product which is totally incapable of injuring those who use it. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) The duty of a manufacturer is to make a product reasonably fit for its intended use. (Winnett v. Winnett (1974), 57 Ill. 2d 7, 310 N.E.2d 1.) The Illinois Supreme Court has noted that the concept of an unreasonably dangerous condition or defect is elusive. In Dunham v. Vaughn & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401, the court recounted a litany of authorities which attempted to define the scope of the concept. It concluded that each authority had a common premise: “those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.” (Emphasis added.) (Dunham, 42 Ill. 2d at 342, 247 N.E.2d at 403.) Though the language of the Restatement and the language from Dunham are different, and may appear to have different meanings, their meanings are, in fact, identical.

Another way of formulating this concept is to say that every time a product injures a consumer, that consumer is disappointed, i.e., the product has failed to live up to the consumer’s expectations, but that does not automatically impose liability upon the manufacturer. Though strict liability is focused on the product rather than the conduct of the consumer, elements of reasonableness are not factored out. Foreseeability factors reasonableness into the equation in this fashion: A consumer’s expectation must be reasonable; otherwise, consumer disappointment is unforeseeable.

The majority also ignores the phrase “as- to its characteristics” found in the Restatement’s comment i and fails to recognize that it means the same as “in light of their nature and intended function.” The manufacturer of the air conditioner did not intend for its product to be a life-support device. The question in this case is whether an air conditioner which fails to blow cold air is dangerous to an extent beyond that which would be contemplated by Lake, granting to him, as we must here, the ordinary knowledge common to the community as to the characteristics of hot air and a failed air conditioner. An ordinary consumer, in my estimation, would not expect to be killed by an air conditioner which is defective in that it leaked itself dry of Freon, failed to cool, and blew hot air. An air conditioner may indeed on occasion serve to prevent people from overheating and dying, but this purpose is incidental to their intended use. (See Lamkin v. Towner (1990), 138 Ill. 2d 510, 563 N.E.2d 449.) Without pleading special circumstances which set forth an intended purpose other than what is ordinarily expected of the product, plaintiff has not pled a cause of action. Cf. Williams v. RCA Corp. (1978), 59 Ill. App. 3d 229, 376 N.E.2d 37; Hollenbeck v. Selectone Corp. (1985), 131 Ill. App. 3d 969, 476 N.E.2d 746.

Therefore, I respectfully dissent, and would affirm the circuit court.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
      In re MARRIAGE OF CRAIG L. WRIGHT, Petitioner and Counterrespondent-Appellee and Cross-Appellant, and BRENDA L. WRIGHT, Respondent and Counterpetitioner-Appellant and Cross-Appellee.
    Fifth District
    No. 5—90—0332
    Opinion filed April 24, 1991.

      James F. Jarrett, of Schneiderjon, Weber & Jarrett, of Effingham, for appellant.
    Larry L. LeFevre, of LeFevre, Zeman, Oldfield & Schwarm, of Vandalia, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Petitioner-counterrespondent, Craig L. Wright, and respondentcounterpetitioner, Brenda L. Wright, were married December 24, 1986. The only child of the marriage, Tommy, was born July 18, 1987. The couple separated on November 3, 1989, and on November 6, 1989, Mr. Wright filed a petition for dissolution of marriage in the Fayette County circuit court. Mrs. Wright filed her counterpetition on November 21,1989, and a hearing was held on February 9, 1990.

The trial court’s final judgment of dissolution of marriage was entered on May 16, 1990, and, among other things, provided that it would be in Tommy’s best interest to place him in the permanent custody of Mr. Wright. The trial court did not order Mrs. Wright to pay child support.

On appeal Mrs. Wright contends only that the trial court’s award of permanent custody to Mr. Wright was against the manifest weight of the evidence. Mr. Wright has filed a cross-appeal alleging that the trial court erred in failing to order Mrs. Wright to pay child support. For the reasons which follow, we affirm in part and reverse in part.

We note at the outset that a motion filed by Mr. Wright to strike Mrs. Wright’s brief, or in the alternative, to strike portions of her brief, was taken with the case. Mr. Wright argues that Mrs. Wright’s entire brief should be stricken because her statement of facts does not comply with Supreme Court Rule 341(e)(6) (134 Ill. 2d R. 341(e)(6)).

Mrs. Wright’s statement of facts contains only the procedural history of the case. The testimony presented by the various witnesses is set out in the argument section of the brief. While this was clearly improper, we decline to strike Mrs. Wright’s entire brief. However, we do strike the following portion of the brief located on page 11:

“Yet, the trial court ignored the fact that just prior to its decision, the petitioner moved out of the marital residence. Where did the petitioner move to? It was not known for sure, but it was a good bet that he moved into his parents’ home.”

The basis of this argument is a letter filed April 26, 1990, by Mrs. Wright’s counsel. In the letter, Mr. Wright’s landlord states that Mr. Wright has moved out of the marital residence. This letter was not attached to a motion to reopen the proofs. Therefore, it is clearly not part of the record on appeal and any mention of it or its contents must be stricken from appellant’s brief. Sanni, Inc. v. Fiocchi (1982), 111 Ill. App. 3d 234, 443 N.E.2d 1108.

We next address Mrs. Wright’s contention that the trial court’s award of permanent custody to Mr. Wright was against the manifest weight of the evidence. One of the most difficult tasks of trial courts is determining which parent in a failed marriage will have custody of the children. (In re Marriage of Kennedy (1981), 94 Ill. App. 3d 537, 418 N.E.2d 947, 953.) “The primary consideration in determining custody is the best interest and welfare of the child” (In re Marriage of Stuart (1986), 141 Ill. App. 3d 314, 317-18, 490 N.E.2d 243, 246). The legislature has set forth some of the relevant factors to be considered by trial courts when determining the best interests of a child:

“(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved;
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person; and
(7) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.
(c) The court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child. However, such presumption shall not be construed as a presumption that an order awarding joint custody is in the best interests of the child.” Ill. Rev. Stat. 1989, ch. 40, par. 602.

There is a strong and compelling presumption that the trial court, the entity closest to the litigation and in the best position to observe the witnesses, has made the proper placement decision. (In re Marriage of Pool (1983), 118 Ill. App. 3d 1035, 1039, 455 N.E.2d 887, 890.) “The custodial decision rests on temperaments, personalities and capabilities” (In re Marriage of Kennedy, 94 Ill. App. 3d at 545, 418 N.E.2d at 953), and only where it is contrary to the manifest weight of the evidence will it be reversed. In re Marriage of Stuart, 141 Ill. App. 3d 314, 490 N.E.2d 243.

On the facts before us we cannot say that the trial court’s placement decision was against the manifest weight of the evidence. The parties were very bitter towards one another in this case. The separation came about when Mrs. Wright moved from the marital home on November 3, 1989, and took Tommy and most of the marital possessions with her. Both parties filed emergency orders of protection, and each party made allegations of child abuse against the other party. At the time of trial Mr. Wright had been employed at SherwinWilliams as- a warehouse technician for four years. He worked five days a week from 7 a.m. until 3 p.m. with occasional overtime. Mrs. Wright had worked at Fedder’s USA for approximately one year. She worked five days a week from 4 p.m. until 12:30 a.m. In addition, Mrs. Wright was required to work overtime. For three months in the summer of 1989 she worked 10-hour days, 8 p.m. to 6:30 a.m.

Mr. Wright testified that he was better suited to care for Tommy. He testified that whenever he was not working he was with Tommy, that he always played with Tommy, did house chores with him, taught him how to walk and say his ABC’s and weaned him from his bottle. He further testified that Mrs. Wright acted indifferently towards Tommy and was more interested in sleeping and doing her housework than in spending time with Tommy. He stated that Mrs. Wright’s job prevented her from being with Tommy. He also testified that Mrs. Wright repeatedly used foul language in front of Tommy and spanked him excessively. He described an occasion when Mrs. Wright was driving the family automobile with himself and Tommy present. Mrs. Wright saw a woman with whom she was angry and swerved over the center line towards the woman. She then “flipped the woman off.” Mr. Wright also described an incident where Mrs. Wright, after spanking Tommy, stated, “God that even hurt my hand.” The other witnesses called by Mr. Wright testified that Mr. Wright would be the better custodian of Tommy.

Mrs. Wright testified that she and Tommy “get along really good and try to do things.” She testified that Mr. Wright would pop wheelies on a three-wheeler with Tommy in his lap. She also stated that Mr. Wright taught Tommy how to start a car and would occasionally let Tommy sit on his lap and steer the car. Mrs. Wright also stated that. Tommy was very rarely in his car seat when Mr. Wright took him places. She also testified that Mr. Wright used foul language in front of Tommy. She described an incident when Mr. Wright and Tommy were washing dishes. Tommy put some soap suds in his mouth, and Mr. Wright called him a “dumb ass.” She also stated that in October of 1989 Mr. Wright tickled Tommy’s stomach to the point that Tommy vomited. She further testified that Mr. Wright drank excessively every Thursday, Friday, and Saturday nights. However, Mrs. Wright also stated that Mr. Wright and Tommy got along well together.

Other witnesses called by Mrs. Wright testified that on occasion Mr. Wright ignored Tommy. They also testified that Tommy would attempt to spit on his mother and hit her and was generally hard to control when he returned from visitations with Mr. Wright. Mrs. Wright testified that Tommy was told by Mr. Wright to do those things. Mr. Wright denied that allegation and argued that Tommy’s behavior is a sign of his unhappiness when he is with his mother.

While we have set forth only a brief summary of the evidence presented at trial, we feel that it is representative of the record as a whole. A careful review of the record reveals that this was a close case. A similar situation was presented in In re Marriage of Pool (1983), 118 Ill. App. 3d 1035, 455 N.E.2d 887:

“The lower court’s decision was based on the evidence which was close but nonetheless clearly favored neither party. As such, the decision to place the chüdren with the father should be upheld as not against the manifest weight of the evidence.” (In re Marriage of Pool, 118 Ill. App. 3d at 1039, 455 N.E.2d at 890-91.)

As in Pool, the evidence before the trial court did not clearly favor either party. Therefore, we cannot say that the trial court’s decision to place permanent custody of Tommy in Mr. Wright was against the manifest weight of the evidence.

We now address Mr. Wright’s cross-appeal. He contends that the trial court erred in failing to set forth in its order the reasons for deviating from the child support guidelines. While not raised by Mrs. Wright, we feel that the issue of waiver must be addressed before we reach the merits of Mr. Wright’s cross-appeal.

Our research has disclosed the case of In re Marriage of Harper (1989), 191 Ill. App. 3d 245, 547 N.E.2d 574. In Harper, the trial court deviated from the chUd support guidelines, and it failed to set forth in its order the reasons for the deviation. The appellant alleged that this was error, and the court held that the appellant had waived the issue on appeal:

“Rule 366(bX3)(ii) eliminates the requirement for a post-trial motion in nonjury civil cases, but does not eliminate the requirement for a timely objection to an alleged procedural error, especially where, as here, that error could have been easily corrected by the trial court.” In re Marriage of Harper, 191 Ill. App. 3d at 247, 547 N.E.2d at 575.

We agree with the majority in Harper that the preferable practice would be to raise possible errors for the trial court’s consideration. This procedure is both courteous and, hopefully, judicially efficient, since the trial court could easily make the necessary findings if their absence were promptly brought to its attention. We cannot agree, however, with the Harper majority’s conclusion that the failure to request the findings at the trial level precludes raising the issue on appeal. We agree instead with Justice Green’s analysis in his dissenting opinion. In re Marriage of Harper (1989), 191 Ill. App. 3d 245, 248-49, 547 N.E.2d 574, 576-77 (Green, J., dissenting).

Rule 366(b)(3)(ii) provides as follows:

“(3) Scope and Procedure on Review in Nonjury Cases. In nonjury cases the following rules govern:
* * *
(ii) Post-trial Motions. Neither the filing of nor the failure to file a post-trial motion limits the scope of review.” (134 Ill. 2d R. 366(b)(3)(ii).)

As Justice Green points out, Rule 366(b)(3Xii) clearly enables a party to raise certain issues for the first time on appeal. We are of the opinion that the Harper majority incorrectly read into Rule 366(bX3Xü) a distinction between procedural and substantive issues. Therefore, we hold that Mr. Wright has not waived the child support issue before us, and we turn to the merits of the issue.

Subsection (a) of section 505 provides in pertinent part:

“(2) The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines. ***
* * *
If the court orders a lower award, based on consideration of the factors in paragraphs (2)(a) through (2)(e) of subsection (a) of this Section, it shall make express findings as to its reason for doing so. The guidelines may be exceeded by the court without express findings, or by agreement of the parties.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).)

The language of the statute clearly indicates that the trial court must make express findings when it orders an award lower than the one set forth in the guidelines. The cases interpreting section 505 also indicate that the trial court must make express findings when ordering an award lower than the award set forth in the guidelines. See People ex rel. Browning v. Melton (1989), 180 Ill. App. 3d 519, 536 N.E.2d 133; In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 545 N.E.2d 459.

It is clear, therefore, that the trial court erred in failing to set forth in its order the reasons for deviating from the child support guidelines. We, therefore, reverse and remand the child support portion of the trial court’s order to enable the trial court to set forth its reasons for deviating from the guidelines.

Affirmed in part; reversed in part and remanded.

GOLDENHERSH and HOWERTON, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    MARION JOSEPH GALVIN, Plaintiff-Appellant, v. DAVID OLYSAV, Defendant-Appellee.
    Fifth District
    No. 5—88—0758
    Opinion filed April 25, 1991.

      Robert Beyers, of Champaign, and Francis Lynch, of Springfield, for appellant.
    Heyl, Royster, Voelker & Allen, of Peoria (Gary M. Peplow and Karen L. Kendall, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Marion Joseph Galvin, appeals the judgment of the circuit court of Christian County granting the motion for summary judgment of defendant, Dr. David Olysav. In this cause, plaintiff argues that summary judgment was improperly granted as there exists a genuine issue of material fact. We reverse and remand.

Plaintiff injured his right arm and the lower portion of his left leg in a traffic accident in December 1981. St. John’s Hospital in Springfield admitted him, and he was subsequently attended to by defendant. Medical personnel X-rayed the upper portion of his arm and lower portion of his leg. The X rays revealed fractures of his right humerus and left malleolus. Plaintiff was placed in a short leg cast and hanging arm cast.

Within three days after the injury, plaintiff complained to defendant of pain in his right wrist and hand. He repeated those complaints on various occasions. No X rays of the hand and wrist were taken, however, until nearly a year and a half later. At that time plaintiff was diagnosed as having right carpal instability. Plaintiff alleges that because of the delayed timing of defendant’s diagnosis, a surgical procedure called a carpal roll fusion of the carpas and scaphocapital lunate bones was necessary. Plaintiff now has a fused wrist with a decreased range of motion. He maintains that earlier diagnosis and treatment would have prevented the need for the surgery.

On April 6 and May 25, 1988, Dr. Forbes McMullin was deposed by attorneys for both parties. On June 2, 1988, defendant filed his motion for summary judgment, alleging that plaintiff’s use of expert testimony and Dr. McMullin’s evidence deposition fail to meet the burden of establishing a prima facie case against defendant. In particular, defendant argues that plaintiff failed to show that an act or failure to act was the proximate cause of plaintiff’s injury. On August 31, 1988, the circuit court granted defendant’s motion.

“A defendant may, at any time, move *** for a summary judgment in his or her favor as to all or any part of the relief sought against him or her.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(b).) However, as the supreme court noted in Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 870, although the use of summary judgment is to be encouraged as an aid to the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt.

“In determining the existence of a genuine issue of material fact, courts must consider the pleadings, depositions, admissions, exhibits, and affidavits on file in the case and must construe them strictly against the movant and liberally in favor of the opponent.” 111 Ill. 2d at 240, 489 N.E.2d at 870.

Our supreme court has clarified the appropriate standard to be applied in summary judgments in Gatlin v. Ruder (1990), 137 Ill. 2d 284, 560 N.E.2d 586. The court stated:

“Our first concern is with the standard the appellate court applied in reviewing the motion to vacate summary judgment. The appellate court, citing Russell [v. Subbiah (1986), 149 Ill. App. 3d 268, 500 N.E.2d 138], held: ‘[T]he plaintiff must prove that it is more probably true than not true that the defendant’s negligence was a proximate cause of the plaintiff’s injury.’ Although Russell concerned a summary judgment motion and thus appears to support the holding of the appellate court in the case at bar, we disagree with the standard employed by Russell and the appellate court. The Russell standard accurately reflects a plaintiff’s burden of proof at trial, but incorrectly sets forth a party’s burden on a summary judgment motion. A motion for summary judgment can only succeed ‘if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); see Purtill v. Hess (1986), 111 Ill. 2d 229, 240; see also Russell, 149 Ill. App. 3d at 272-73 (Barry, J., dissenting).) The court must construe the evidence ‘strictly against the movant and liberally in favor of the opponent.’ (Purtill, 111 Ill. 2d at 240.) Summary judgment ‘is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt.’ (Purtill, 111 Ill. 2d at 240.) ***
Applying the standard established by the statute and Purtill, we hold that an issue of material fact with regard to Ruder’s negligence arose as a result of Niswander’s [Kenneth Niswander, M.D., a professor at the University of California at Davis medical school] deposition. Our duty is not to judge the strength of Niswander’s deposition as evidence or to weigh the credentials, credibility and testimony of Niswander against those of Ruder and Raimondi [Anthony Raimondi, M.D., a pediatric neurosurgeon]. We must decide whether Niswander’s deposition presented evidence that Ruder may have proximately caused Gatlin’s injuries; we hold it did. Certainly proximate cause is an issue of material fact in a negligence suit. Niswander’s affidavit did not alter his deposition. The trier of fact should merely consider the affidavit with all of the other evidence in the case. When a circuit court, in considering a motion for summary judgment, weighs the deposition of a witness presented by the opponent to the motion with a subsequently obtained affidavit of that witness by the movant, the court, in effect, admits an issue of material fact exists. A court cannot decide factual disputes as a matter of law. (See Spidle v. Steward (1980), 79 Ill. 2d 1, 10.) For these reasons, Gatlin’s motion to vacate summary judgment should have been granted.” (137 Ill. 2d at 292-94, 560 N.E.2d at 589-90.)

For our review of the trial court’s judgment, we will use the standard in Gatlin.

In a medical malpractice action, the plaintiff has the burden of establishing the appropriate standard against which the defendant’s conduct is to be measured, a deviation from that standard, and that the deviation proximately caused the plaintiff’s injuries. (Purtill v. Hess, 111 Ill. 2d at 241-42, 489 N.E.2d at 872; Walski v. Tiesenga (1977), 53 Ill. App. 3d 57, 60, 368 N.E.2d 573, 576.) In this case, a question exists only as to the last element — proximate cause. In addition, the only evidence offered to meet the proximate cause burden is the evidence deposition of Dr. McMullin. We agree with the First District Appellate Court in Northern Trust Co. v. Louis A. Weiss Memorial Hospital (1986), 143 Ill. App. 3d 479, 487-88, 493 N.E.2d 6, 12, when it held, “ ‘[ejvidence which shows to a reasonable certainty that negligent delay in diagnosis or treatment *** lessened the effectiveness of treatment is sufficient to establish proximate cause.’ ” 143 Ill. App. 3d at 487-88, 493 N.E.2d at 12, quoting James v. United States (N.D. Cal. 1980), 483 F. Supp. 581, 585.

In reading Dr. McMullin’s deposition, we note but do not rule on the objections of defendant. We read the deposition as a whole as did the circuit court.

In the deposition, on direct examination by plaintiff’s attorney, Dr. McMullin was asked:

“Q. Doctor, in the course of your treatment of Marion Joseph Galvin, did you come to an opinion as to whether Dr. David Olysav’s treatment of Joe Galvin was in keeping with the standard of care required of an orthopedic surgeon in Springfield, Illinois at the time of his rendering such treatment?
* * *
A. It was based — it was my opinion that based on what the patient told me, he either may continue complaining of pain in his wrist over a period of time and no X-rays of that wrist that I could see were documented as being taken, that this was not in keeping with proper medical care.
Q. And your opinion was to a reasonable degree of medical certainty, is that right, Doctor?
A. Yes.
* * *
Q. Doctor, based on your training and experience and your treatment of Joe Galvin including your review of his medical records, do you have an opinion to a reasonable degree of medical certainty whether Joe Galvin’s chance for a better result would have been better if the diagnosis of carpal instability would have been made on or before January the 18th of 1982?
* * *
A. Yes, if he had had the diagnosis made earlier and if a repair and reconstruction had been performed and if it were suecessful, his wrist would be better than it would be had he had to have an arthrodesis.
Q. And the arthrodesis is what he ended up having, is that correct?
A. Yes.
* * *
Q. Doctor, do you have an opinion as to whether the chance for a better result would have been different depending on the time of diagnosis of such hypothetical injury [similar to plaintiff]?
* * *
A. If one can repair or reconstruct the ligaments more stable, the bones of the joint, the wrist joint stable, one will have a better functioning wrist than if one goes ahead and has to end up fusing certain various other bones.”

Reading the deposition in a light most favorable to the nonmoving party, it is clear that plaintiff met the burden of proof by the introduction of the above-quoted deposition. The expert/doctor testified to a reasonable degree of medical certainty that defendant proximately caused plaintiff’s injury. Plaintiff certainly introduced evidence sufficient to show, to a reasonable degree of medical certainty, that negligent delay in diagnosis or treatment lessened the effectiveness of treatment.

Defendant argues, based on the cross-examination, that the doctor could not or would not testify “to a reasonable degree of medical certainty.” It is apparent that Dr. McMullin was confused about the distinction between possibilities and a reasonable degree of medical certainty. For instance, the doctor was asked:

“Q. Okay. I understand you’ve talked about possibilities and likelihoods, Doctor, but my question is whether or not you can say to a reasonable degree of medical certainty that a wrist injury would have been diagnosed?
* * *
A. You’re asking me a question of — two questions, one, is it possible, and the other question you’re asking me, what is my reasonable degree of medical certainty, and my reasonable degree of medical certainty is that there would have been some abnormalities shown on those X-rays, had they been taken.”

Later, the following exchange occurred:

“A. He could have been one of those 40 or 50 percent that failed, and he would still end up having a fusion.
Q. Okay. Can you testify to a reasonable degree of medical certainty that a ligament reconstruction operation would have been successful on Marion Joseph Galvin?
A. You’re asking me a question, again, using medical certainty and then possibilities. I think the possibilities are 40 percent that it would be successful. I can’t say whether he would be one of those 40 percent that was successful or not.
Q. Okay. The standard that we’re dealing with here, by law, is testimony to a reasonable degree of medical certainty, and that is why I ask the question in that way, so let me reask it, if I may—
A. That’s a silly question, because I told you, the statistics are 40 percent, and whether or not you’re a medical doctor or giving medical certainty or not, the statistics are still going to change — not change. So it’s going to be 40 percent or so that he’s going to be successful and sixty percent that he’s not.
Q. Okay. My question is, Doctor, can you testify to a reasonable degree of medical certainty that a ligament reconstruction operation would have been successful on Marion Galvin?
A. I can testify that he had a 40 percent chance; that’s all I can testify. I can’t say that it would be a hundred percent successful.
* * *
A. Again I’ll say that I cannot be a hundred percent medically certain that this would not be the same wrist fusion had the diagnosis been made earlier.
Q. I’m not asking for a hundred percent certainty, Doctor, I’m asking for any degree of medical certainty. Can you testify with any degree of medical certainty that the treatment of or failure to treat Marion Joseph Galvin was the cause of his current condition?
* * *
A. Again, we’re getting into semantics; I know this is a way that the law likes to become involved in things.
The way you state your question, I have to answer it honestly, and I’d have to say that I can’t be a hundred percent medically certain, because that’s the way medicine is. I guess I just can’t say anything different.”

Defendant alleges that because the doctor testified in terms of percentages and did not repeat the magical incantation “reasonable degree of medical certainty,” his testimony is insufficient to show proximate cause. In Wise v. St. Mary’s Hospital (1978), 64 Ill. App. 3d 587, 381 N.E.2d 809, this court made clear:

“While medical testimony is usually couched in terms of art such as ‘based upon a reasonable degree of medical certainty,’ etc., it is not objectionable for the medical expert to testify in terms of percentages so long as it is clear that the opinion expressed is not the product of mere speculation or conjecture.” (64 Ill. App. 3d at 590, 381 N.E.2d at 812.)

In light of the fact that Dr. McMullin testified on direct examination that his opinion was based on a reasonable degree of medical certainty, and on cross-examination merely restated his testimony in terms of percentages, it is clear that his opinion is not the product of mere speculation or conjecture. Dr. McMullin’s testimony is sufficient to show proximate cause.

The cross-examination goes to the weight to be given the medical testimony. It does not, however, go to the reasonable degree of medical certainty standard. Although Dr. McMullin restated his prior direct examination testimony in terms of percentages, he never retracted his assertion that defendant failed to meet the appropriate standard of care or that defendant’s deviation from that standard proximately caused plaintiff’s injuries. Furthermore, he never retracted his statement that the delay in diagnosis or treatment lessened the effectiveness of treatment. Therefore, plaintiff made a prima facie case of medical malpractice. See Walski, 53 Ill. App. 3d at 60, 368 N.E.2d at 576; Northern Trust, 143 Ill. App. 3d at 487-88, 493 N.E.2d at 12.

The existence of proximate cause is a question for the jury. (Ney v. Yellow Cab Co. (1954), 2 Ill. 2d 74, 84, 117 N.E.2d 74, 80; Wise, 64 Ill. App. 3d at 590, 381 N.E.2d at 812.) Moreover, the amount of weight given to any testimony is within the province of the jury. Questions or issues which would cause reasonable men to arrive at different results are for the jury alone to decide. 2 Ill. 2d at 83, 117 N.E.2d at 80.

For the foregoing reasons, the judgment of the circuit court of Christian County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

RARICK, P.J., and CHAPMAN, J., concur.


author: JUSTICE HARRISON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES NASH, Defendant-Appellant.
    Fifth District
    No. 5—89—0730
    Opinion filed April 26, 1991.
    Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William R. Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Thomas R. Lamont, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

Following a jury trial in the circuit court of Madison County, defendant, Charles Nash, was found guilty of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1)). Defendant was sentenced to concurrent terms of 25 years’ imprisonment. On appeal, defendant argues that he was denied a fair trial by the improper conduct of the prosecuting attorney and that the trial court’s failure to further inquire into allegations of ineffective assistance of counsel presented in his post-trial motion was reversible error. We believe defendant’s latter contention is dispositive of this appeal.

Defendant was represented at his trial and sentencing hearing by private counsel, William Walker. On September 16, 1989, the day after defendant was sentenced, he wrote a letter to the trial court requesting that an attorney be appointed to handle his post-trial motion as he did not have sufficient assets to retain one. Thereafter, the court appointed Walker to handle defendant’s post-trial motion. On October 13, 1989, defendant, by appointed counsel Walker, filed a post-trial motion alleging, inter alia, “[t]hat he had ineffective assistance of counsel; that said counsel did not assert the important issues nor contradictions during the closing arguments nor throughout the trial; said counsel did not poll the jury; and said counsel did not obtain and call witnesses defendant wanted to call.”

At the hearing on the motion held October 26, 1989, Walker repeated defendant’s allegations of ineffectiveness, briefly explained his position on them, and asked that defendant be allowed to address the court regarding his claims. The court, stating that it was “highly unusual to have a defendant argue his Post-Trial Motion when he has counsel present,” denied defendant’s request to speak, and at the conclusion of argument by counsel, denied defendant’s post-trial motion.

Under the appropriate circumstances, a post-trial motion alleging ineffective assistance of trial counsel will mandate appointment of new counsel to assist in the motion. (People v. Bell (1990), 197 Ill. App. 3d 613, 617, 554 N.E.2d 1108, 1110.) If a defendant' presents a post-trial motion alleging ineffective assistance of counsel, the trial court should examine the factual matters underlying the claim, and if the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointed. (People v. Washington (1989), 184 Ill. App. 3d 703, 711, 540 N.E.2d 1014, 1019; People v. Jackson (1985), 131 Ill. App. 3d 128, 139, 474 N.E.2d 466, 474.) Only if the allegations show possible neglect of the case, for which counsel could undertake an independent evaluation of defendant’s complaint and present the matter to the court, should new counsel be appointed. Washington, 184 Ill. App. 3d at 711, 540 N.E.2d at 1019.

In People v. Davis (1991), 208 Ill. App. 3d 33, 566 N.E.2d 932, this court recently addressed the question of the proper procedure to be followed in evaluating defendant’s post-trial ineffective assistance claims. In Davis, the defendant spoke directly to the court at sentencing, indicating that he felt his attorney had not done an adequate job of challenging the credibüity of the State’s expert witnesses and that he did not caE two particular witnesses. As in the case at bar, counsel in Davis expressed his client’s desire to address the court and explained, in general terms, the ineffective assistance claims that the defendant wished to make and counsel’s responses to them.

This court held in Davis that the trial court had treated the defendant’s post-trial motion properly, because “[t]he court listened to what defendant had to say and characterized the complaints as relating to trial strategy.” (Davis, 208 Ill. App. 3d at 43, 566 N.E.2d at 938; see also People v. Levy (1989), 186 Ill. App. 3d 842, 542 N.E.2d 930 (proper procedure foEowed where court considered ineffective assistance allegations of post-trial motion and questioned defendant’s attorney and defendant); Bell, 197 Ill. App. 3d 613, 554 N.E.2d 1108 (error for trial court not to allow defendant to present his claims of ineffective assistance of counsel where trial counsel presented written post-trial motion which contained no such claims and which had already been denied).) It was therefore not “highly unusual,” as the trial court here believed, for defendant to speak in defense of his claims.

We believe that under the circumstances present here, it was error for the trial court not to aEow defendant to be heard. Defendant’s counsel stated that he and defendant had discussed the ineffective assistance of counsel claims and that he was representing defendant out of a “duty to the Court from the appointment that I have.” It is clear from the record that defendant’s counsel, in presenting these claims, believed that defendant would have an opportunity to further explain his position. Because defendant was prohibited from speaking, the court was denied a complete explanation of the facts underlying defendant’s claims. “Neither the trial court, nor this court, can give proper consideration to defendant’s claim absent the opportunity for defendant fully to present his claim.” Bell, 197 Ill. App. 3d at 618, 554 N.E.2d at 1111.

For the foregoing reasons, we reverse and remand this cause for a new hearing on defendant’s claims of ineffective assistance of counsel. If, upon further inquiry, defendant’s allegations show possible neglect of the case, counsel other than defendant’s original counsel should be appointed to undertake an independent evaluation of defendant’s complaint and present the matter to the court. In a new hearing, if the trial court finds that defendant did not, in fact, receive effective assistance of counsel, then it shall order a new trial. If, however, the court determines that defendant received the effective assistance of counsel, it shall deny a new trial and leave standing defendant’s conviction and sentence. If the trial court denies defendant a new trial, defendant may still appeal to this court his assertions of ineffective assistance of counsel and prosecutorial misconduct. See Bell, 197 Ill. App. 3d at 618-19, 554 N.E.2d at 1111-12.

Reversed and remanded with directions.

LEWIS and HOWERTON, JJ., concur.


author: PRESIDING JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VERNON WALKER et al., Defendants-Appellants.
    Fifth District
    No. 5—89—0595
    Opinion filed April 29, 1991.

      Daniel M. Kirwan and Lawrence J. O’Neill, both of State Appellate Defender’s Office, of Mt. Vernon, for appellants.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendants, Brian Matthews and Vernon Walker, were charged in the circuit court of St. Clair County with burglary and residential burglary. They were found guilty on both counts after a trial by jury, and both were sentenced to four years’ imprisonment. The only question raised on appeal is whether the house in question was a dwelling within the meaning of the residential burglary statute.

The evidence at trial revealed that the house had been unoccupied for approximately one year. Two years prior to the burglary, the owner, Orville Kolmeyer, had been hospitalized as a result of congestive heart failure and the onset of Alzheimer’s disease. Following his hospital stay, Kolmeyer returned to his home and lived there for 11 months. Because of continuing health problems, he subsequently moved to a nursing home. Kolmeyer testified at trial that he “hoped” to return to his home when and if his health permitted.

Amery Kolmeyer, Orville’s brother, testified that he kept the grass cut and periodically checked on the house, that locks had been installed on all the doors, and that the front door had been braced with a two by four. Officer Milton Jones, one of the investigating officers, testified that upon inspecting the house, he found everything in disarray. Appliances and cabinets had been pulled from the walls and some furniture had been thrown outside. The record further discloses that the premises had electrical service at the time of the break-in.

On appeal, the defendants argue that the premises in question do not meet the statutory definition of a dwelling and that they could not, therefore, be convicted of residential burglary. Section 19 — 3 of the Criminal Code of 1961 defines the offense of residential burglary as knowingly and without authority entering the dwelling of another with the intent to commit a felony or a theft. (Ill. Rev. Stat. 1987, ch. 38, par. 19—3.) Section 2—6(b) of the Code defines a dwelling as:

“a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 2—6(b).)

The defendants maintain that Orville Kolmeyer did not intend to return to the premises within a reasonable time. We must determine whether the evidence supports the jury’s implicit findings that Kolmeyer intended to return to the house, and that he intended to do so within a reasonable time.

This case presents us with an unusual situation where an absent owner-occupier intends to return to the premises, but does not know when this will be possible, and the duration of his absence is dependent upon circumstances largely beyond his control. Orville Kolmeyer testified that he “hoped” to return to the premises as soon as his health permitted. Clearly, Kolmeyer possessed the intent to return. The statute imposes no objective standard of reasonableness on that intent. If the evidence is sufficient for the finder of fact to determine that an owner or occupant genuinely possessed the subjective intent to reside on the premises in question within a reasonable period of time, the premises is a dwelling. The jury in this case so found, and the relevant evidence supports that finding. That Kolmeyer was in poor health, that he was living in a nursing home at the time of the burglary, the condition of the house, and the fact that he had not resided on the premises in the past 11 months are factors which the jury -had to consider in determining the genuineness of Kolmeyer’s intent to reside on the premises. That those factors may militate against the reasonableness of this intent is irrelevant. The statute does not require that the intent be reasonable or realistic. The term “reasonable” as it is used in the statute applies only to the period of time in which the owner-occupier intends to go and reside, not to the intent itself.

The next question is whether the time in which Kolmeyer intended to go and reside on the premises was reasonable. Now we are concerned with an objective element, i.e., whether the time in which Kolmeyer intended to return objectively was reasonable. Kolmeyer testified that he intended to return to his house when his health permitted. We find this to be objectively reasonable. Merely because an approximate date cannot be given for his return does not make the time per se unreasonable. There are many situations where an owner-occupier may be absent for an indefinite period of time. The purpose of the residential burglary statute is to impose a greater penalty for burglarizing places where there is a substantial likelihood that people might be present, as this presents a greater threat to public safety. As we noted in People v. Pearson (1989), 183 Ill. App. 3d 72, 538 N.E.2d 1202, the statute is not intended to cover structures such as vacant buildings or garages, but does cover vacation homes and the like. A review of the evidence leads us to conclude that the premises in question is of a type intended by the legislature to be protected by the statute and is a dwelling within the meaning of the statute.

The judgments of the circuit court of St. Clair County are affirmed.

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.


author: JUSTICE HOWERTON

text:
    CHARLES W. LAMPE et al., Plaintiffs-Appellants, v. SWAN CORPORATION, Defendant-Appellee (Ann Bevel, Plaintiff).
    Fifth District
    No. 5—89—0704
    Opinion filed May 1, 1991.
    Leahy Law Offices, of Springfield (Mary Lee Leahy, of counsel), for appellants.
    Eric M. Schmitz, of Armstrong, Teasdale, Schlafly, Davis & Dicus, of St. Louis, Missouri, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiffs sued Swan Corporation claiming that they were discharged in violation of a contract created by Swan’s employee handbook. The circuit court dismissed plaintiffs’ complaint, ruling: (1) plaintiffs were employees-at-will; and (2) the employee handbook was not a contract. Plaintiffs appeal. We affirm.

The fundamental question in this case is whether the employee handbook created a contract.

The Illinois Supreme Court has held that employee handbooks, under some circumstances, can create contractual rights. (Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314.) In Duldulao, the court stated:

“[W]e hold that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.)

The Duldulao test determines if an implied-in-fact contract exists. This determination is a threshold question of law. Harrell v. Montgomery Ward & Co. (1989), 189 Ill. App. 3d 516, 521, 545 N.E.2d 373, 376, citing Hunt v. IBM Mid America Employees Federal Credit Union (Minn. 1986), 384 N.W.2d 853, 856; see also Pundt v. Millikin University (1986), 145 Ill. App. 3d 990, 496 N.E.2d 291.

Implied-in-fact contracts are different from express contracts. Express contracts are those in which terms of the contract or agreement are openly and fully uttered and avowed at the time of the making. (Bull v. Mitchell (1983), 114 Ill. App. 3d 177, 448 N.E.2d 1016.) Implied-in-fact contracts are those whereby a contractual duty is imposed by reason of a promissory expression which may be inferred from the facts and circumstances and the expressions on the part of the promisor. Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 400 N.E.2d 614.

In Duldulao, the defendant hospital stated in its handbook that permanent employees would receive three warning notices prior to discharge. When the hospital failed to follow the procedure, Duldulao sued. The court found an implied-in-fact contract existed because the handbook contained a promissory expression, and Duldulao had alleged facts from which her reliance upon these promises could be inferred.

When addressing plaintiffs’ claims, all well-pleaded allegations are required to be taken as true. (Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 440 N.E.2d 942.) Plaintiffs claim they were discharged or, in the alternative, laid off in contravention to the employment contract as created by the Swan Employee Handbook. Under an implied-in-fact analysis, therefore, only the portions of the handbook dealing with discharge and layoffs are relevant.

To determine whether a contractual obligation arises out of Swan’s employee handbook, we must examine the language of the employment handbook and determine whether that language amounts to a promise that has been clearly expressed so that an employee would reasonably believe that an offer has been made. (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.) Because the complaint in this case was dismissed with prejudice, we examine plaintiffs’ allegations and the language of the handbook.

The following section of the handbook addresses discharge of employees:

‘ ‘Termination-Involuntary
An employee’s failure to follow Swan policies and procedures can lead to involuntary termination of employment. *** Occasionally an employee fails to consider the company and his fellow workers in matters which are sufficiently serious to warrant discharge for cause. Cause for dismissal includes but is not limited to:
1. Unsatisfactory work.
2. Excessive absence or tardiness.
3. Dishonesty
4. Discourtesy.
5. Insubordination.
6. Falsification of employment or personal status records.
7. Revealing confidential information pertaining to the Swan Corporation or to an employee.
8. Conduct which reflects unfavorably on Swan.
9. Any fraudulent act.
10. Harassment, fighting, horseplay, scuffling or other disorderly, disruptive or unruly conduct.
11. Possession of firearms, explosives or weapons of any kind.
12. Actual or attempted theft, fraud or misappropriation of property including the aiding or abetting of the same.
13. Gambling, conducting games of chance or possessing gambling equipment on Company premises.
14. Disregard of General Safety Rules and Procedures, creating or contributing to unsafe, unsanitary or poor housekeeping conditions.
If any problem is serious enough, any employment maybe terminated without previous formal counseling. *** THE SWAN CORPORATION RESERVES THE RIGHT TO DISCIPLINE ANY EMPLOYEE FOR ANY OFFENSE NOT SPECIFICALLY MENTIONED IN THESE RULES.”

The circuit court found nothing in this language which amounted to an offer. We agree. This language merely gives examples of the kinds of conduct which will subject plaintiffs to discharge. It does not, as plaintiffs suggest, promise: (1) that plaintiffs will only be discharged for cause; (2) that reasons for discharge will be given; or (3) that disciplinary procedures are required prior to discharge.

As for the language, “fi]f any problem is serious enough, any employment may be terminated without previous formal counseling,” we hold that no reasonable employee, without more, would construe this to be a promise to provide formal counseling prior to termination.

Plaintiffs claim in the alternative that they were laid off and that the layoffs did not follow employee handbook procedures. The portion of the handbook on which plaintiffs rely reads:

“All Salary [sic] receive special consideration when, and if, a salaried lay-off is deemed necessary. Efforts would be made to retain all, but if a salary lay-off should develop, a combination of knowledge, experience, talent and seniority would dictate the order by which the lay-off would take place in the salaried ranks.”

Here too, the circuit court found nothing in this language which amounted to an offer. Plaintiffs contend that the words “deemed necessary” contemplate that a hearing was required before determining if layoffs were necessary. Nothing in the language of the handbook even remotely suggests such a result. As to layoff procedures, the language of this section does not contain a promise to follow strict guidelines in determining whom to lay off. Rather, it states that purely subjective standards such as knowledge, experience, and talent would be coupled with seniority in determining whom to retain and whom to lay off. We agree with the circuit court that this language also does not amount to an offer.

Plaintiffs allege that other portions of the handbook create contractual rights. We cannot agree.

One section upon which plaintiffs rely states in pertinent part:

“Promotions/Transfers/Demotions/New Hires The Company adheres to the policy of promotion from -within wherever possible. The Company does, however, reserve the right to go outside the present work force to fill salaried personnel positions. *** When an individual is promoted, transferred, demoted, or hired in from outside, the trial period is three (3) months. *** At the end of the trial period, job performance is evaluated. If the performance is judged acceptable, the position then becomes permanent.”

Plaintiffs pled that they were discharged, or, in the alternative, laid off. Plaintiffs did not plead that they were promoted; transferred, demoted or newly hired. Therefore, even if this language were construed to be a promissory expression, no implied-in-fact contract can exist under the facts pled. Had the plaintiffs claimed that after' being hired and after working three months, management said the trial period is now one year, then the conclusion might be different; but here, plaintiffs’ pleadings have nothing to do with this section of the handbook.

Another allegation plaintiffs make is that Swan breached the employment contract created by the handbook by not allowing plaintiffs to “bump down” or “bid” into positions for which plaintiffs were qualified. The section of the handbook on which they rely states:

“When an hourly paid (excluding Lead) job vacancy occurs in any department, on any shift, the system for filling that job is as follows:
* * *
1. The vacancy is first offered to each person in the department in order of seniority. This policy gives the already trained people presently in the department the first opportunity to change shifts or jobs.
* * *
15. Any Supervisor, Lead, Fork Truck, or Group Lead employee moved down by job elimination to a level lower than their existing position will automatically assume initial top seniority within the department. After the initial choice or job preference, normal seniority prevails.”

Plaintiffs argue that this language places upon Swan a contractual duty to move an employee to a lower position when the employee’s job is eliminated; that it had been Swan’s policy and practice to allow group leaders, lead workers, supervisors and managers to bid or bump downward if their positions were eliminated; and, that in the four years prior to plaintiffs’ discharge, as many as seven employees were allowed to bid or bump down because of job elimination.

Again, this section does not apply because plaintiffs were discharged; they were not moved down due to job elimination. The words “job elimination” and “discharge” have different meanings. Whereas “job elimination” means that a position is no longer needed, “discharge” means that a person is no longer needed.

Plaintiffs do not plead that they were demoted due to jobs being eliminated; rather, plaintiffs pled that they were discharged. It is clear that this section does not contemplate termination, but rather deals specifically with demotions due to job elimination. The clearest indication that this is true is that Swan deals with termination and layoffs in separate sections of the handbook.

Plaintiffs also contend that the prior practice of bidding or bumping down is relevant to determining the intent of the language within the handbook. However, plaintiffs are placing the proverbial cart before the horse, for courts use extrinsic evidence only after determining that a contract ambiguity exists. (See, e.g., Fox v. Inter-State Assurance Co. (1980), 84 Ill. App. 3d 512, 405 N.E.2d 873.) In order for there to be a contract ambiguity, there must first be a contract. Whether there is a contract is the sole issue before us, and we find, as the circuit court did, that no implied-in-fact contract exists.

The circuit court is affirmed.

Affirmed.

GOLDENHERSH and CHAPMAN, JJ., concur.


text:
    THE FEDERAL LAND BANK OF ST. LOUIS, Plaintiff-Appellee, v. DONALD E. WALKER et al., Defendants-Appellants.
    Fifth District
    No. 5—90—0514
    Opinion filed May 1, 1991.

      Jerold W. Barringer, P.C., of Carlinville (Jerold W. Barringer, of counsel), for appellants.
    Tietz & Richardson, of Decatur (Jeffrey D. Richardson, of counsel), for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Defendants borrowed money from the Federal Land Bank of St. Louis and defaulted on the loan. Plaintiff, the Federal Land Bank of St. Louis, sued to foreclose on the mortgage securing the debt and petitioned to be placed in possession. The circuit court granted the petition. Defendants appealed. We affirm.

The sole issue on appeal is whether the circuit court erred in placing plaintiff in possession of defendants’ land. To be placed in possession, the petitioner must show a reasonable likelihood of success on the merits, which ordinarily is established by showing a default. Brown County State Bank v. Kendrick (1986), 140 Ill. App. 3d 538, 488 N.E.2d 1079.

Defendants claim that the circuit court erred because the loan contract was unenforceable, and therefore, there can be no default. According to defendants: (1) Plaintiff did not follow the loan procedures set forth in the Farm Credit Act (12 U.S.C. §2011 et seq. (Supp. 1971)) when it loaned defendants money; (2) failure to follow these procedures amounted to a violation of law; (3) contracts entered in violation of statutory or regulatory law are unenforceable; and (4) since the contract is unenforceable, there can be no default or possibility of success on the merits.

Section 2034 of the Farm Credit Act requires persons interested in borrowing money from a Federal bank to first purchase stock in the Farm Credit Association and states further that “stock shall be paid for in cash by the time the loan is closed.” 12 U.S.C. §2034 (Supp. 1971).

Defendants did not pay for the stock in cash; instead, the bank loaned them the money to buy the stock as well as to buy the land.

Defendants make three arguments.

Firstly, defendants argue that the Farm Credit Act prohibits the bank from lending them money to buy the stock in the Farm Credit Association that in turn allows them to borrow money to buy land, and in consequence, the loan violated the law and is unenforceable.

Secondly, defendants argue that the second part of the sentence, “by the time the loan is closed,” means that the money for the stock must have been delivered before closing. Since they never paid for the stock from their own funds, they did not deliver cash before the loan was closed, and therefore, the Federal Land Bank again violated the law, making the contract unenforceable.

Thirdly, defendants argue that section 2033(8) of the Farm Credit Act states that stock shall be “issued” and that the term “issued” means that the stock must actually be delivered. Since plaintiff merely credited defendants with stock instead of actually delivering to them the stock certificates, defendants argue that the bank violated the statute thereby rendering the contract unenforceable.

Defendants’ tridentate argument appears to boil down to this: the bank loaned money that was necessary to buy the stock which allowed defendants to borrow more money from the bank to buy land, and although neither loan was repaid, defendants can now keep the land, and the bank cannot collect by legal process, because the initial loan violated the law.

Merely because a contract may violate some law or some regulation does not necessarily make that contract unenforceable. Contracts are unenforceable when the subject matter of the contract or the purpose of the contract violates the law. (Nutri-Pro, Inc. v. Phelps (1988), 172 Ill. App. 3d 505, 526 N. E.2d 891; Schniederjon v. Krupa (1985), 130 Ill. App. 3d 656, 474 N.E.2d 805; Klubeck v. Division Medical X-Ray, Inc. (1982), 108 Ill. App. 3d 630, 439 N.E.2d 506; see also Comdisco, Inc. v. United States (7th Cir. 1985), 756 F.2d 569.) The question in this type of case is whether the subject matter of the contract violates a law, not whether there is a deviation from some legal technical requirement that does not concern the subject matter of the contract. Failure to strictly follow guidelines in lending money, therefore, does not necessarily cause the contract to violate the law and become unenforceable.

The power to declare a contract illegal and unenforceable comes from two sources: (1) the common law, declared by courts; and (2) the legislative branch of government. An example of a contract that has been judicially declared illegal and unenforceable is a contract that is in restraint of trade. (The Dyer’s Case (1414), 2 Hen. V PI. 26; see also House of Vision Inc. v. Hiyane (1967), 37 Ill. 2d 32, 225 N.E.2d 21.) Examples of contracts that have been legislatively declared illegal and unenforceable are gambling contracts and contracts for prostitution. Ill. Rev. Stat. 1989, ch. 38, pars. 28—7,11—19.

Contracts declared illegal and unenforceable thus run the gamut from those that restrain economic freedom to those that are nefarious and immoral. From this, it is deduced that a declaration of illegality and unenforceability is principled upon a finding that the contract has a deleterious effect upon society as a whole.

We refuse to exercise our common law power to declare this contract illegal and unenforceable, for it appears to us that neither the buying of land nor the lending of money to buy land nor the lending of money to buy stock is nefarious, immoral, or deleterious to society as a whole, nor has it been shown in this case that the contract restrains an economic freedom or has a deleterious effect upon society as a whole.

The one question remaining is the major question, and it is one of statutory construction. Did Congress, by phrasing the Farm Credit Act as it did, intend to outlaw notes and mortgages when the lender also advances funds to buy stock as was done in this case? Both the statute and the legislative history are silent on the issue.

In oral argument, defendants contended that Congress implicitly intended to discourage lending money to marginal buyers by requiring the buyer first to have funds sufficient to buy stock in the Farm Credit Association. As salutary as that might be, we can find no such intent because: (1) Congress did not express it; (2) an inference that Congress intended to preserve family-operated farms by making it easy to extend credit to buyers of limited funds is just as likely as the one advanced by defendants, and this latter inference would legitimize a bank’s practice of loaning money to buy the predicate stock; and (3) defendants’ interpretation would impute to Congress an intention to outlaw a contract that is neither nefarious nor immoral.

In the face of congressional silence, and taking into account all other reliable techniques of statutory construction, we impute to Congress no implicit intent to declare outlawed the kind of contract presented in this case.

Even if we were to agree with defendants that Congress intended, albeit implicitly, to require borrowers to purchase stock from their own funds, we cannot agree that plaintiff’s failure to secure defendants’ own funds for the stock renders the contract illegal and unenforceable. We hold this to be true for the same reason that an otherwise unenforceable contract under the Statute of Frauds is rendered enforceable by partial performance (Anastaplo v. Radford (1958), 14 Ill. 2d 526, 153 N.E.2d 37), namely, that defendants received the benefit of their bargain; for it is said that “unless a bargain necessarily contemplates an illegal act, it is not unenforceable, and if it is later performed in a way that involves some slight violation of law, not seriously injurious to the public order, the person performing may recover on his bargain.” (Meissner v. Caravello (1955), 4 Ill. App. 2d 428, 431, 124 N.E.2d 615, 616, citing VI S. Williston, Contracts, §1767, at 5018-19 (rev. ed. 1938).) This language is eminently applicable to this case.

To be placed in possession, the petitioner must show a reasonable likelihood of success on the merits, which ordinarily is established by showing a default. (Brown County, 140 Ill. App. 3d 538, 488 N.E.2d 1079.) Plaintiff showed the existence of a default, and the circuit court granted plaintiff’s petition. Having found that the contract was enforceable, we find no error in placing plaintiff in possession. The circuit court is affirmed.

Affirmed.

HARRISON and WELCH, JJ., concur.