author: JUSTICE BOWMAN

text:
    RONALD HEIDER, Plaintiff-Appellant and Cross-Appellee, v. LEEWARDS CREATIVE CRAFTS, INC., Defendant-Appellee and Cross-Appellant.
    Second District
    Nos. 2 — 92—0812, 2 — 92—1002 cons.
    Opinion filed May 14, 1993.

      William R. Fahey, of Cooney & Conway, of Chicago, and J. Anderson Berly and Edward J. Westbrook, both of Ness, Motley, Loadhold, Richardson & Poole, of Charleston, South Carolina (Robert M. Turkewitz, of counsel), for appellant.
    Deborah G. Lava and Lawrence Oliver, both of Skadden, Arps, Slate, Meagher & Flom, of Chicago (John P. Buckley, of counsel), for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Both parties appeal from the trial court’s rulings on the sufficiency of the third amended complaint of plaintiff, Ronald Heider (Heider). Counts I, II, and III purport to allege common-law fraud, a Restatement (Second) of Torts §353 (1965) violation, and tortious interference, respectively, arising from plaintiff’s purchase of a warehouse that contains asbestos insulation from defendant, Leewards Creative Crafts, Inc. (Leewards). On June 16, 1992, the trial court dismissed counts I and III with prejudice and denied defendant’s motion to dismiss count II. This court consolidated defendant’s cross-appeal with respect to count II with plaintiff’s appeal of the dismissal of counts I and III. At issue is the sufficiency of all three counts of plaintiff’s third amended complaint. We affirm in part and reverse in part.

FACTS ALLEGING FRAUDULENT MISREPRESENTATION AND CONCEALMENT

We will first address the issues raised in this appeal. According to the record, defendant offered the warehouse at 840 North State Street, Elgin, for sale in 1984. Defendant maintained a store with parking near the warehouse on the same property. In December 1984, plaintiff and his real estate agent, Romeo E. Mura, toured the warehouse with Leewards’ real estate agents. Mura inquired about the condition of the building, including the overall condition of the roof, the age and condition of the boiler, and the amount of electrical power. Mura also inquired about the nature of the material on the columns and beams in the warehouse, because the material was somewhat unusual in appearance and appeared to be in a deteriorated condition. Defendant’s real estate agent told Mura that they would have to ask defendant for some of the information, including the nature of the material on the columns. During his inspection, plaintiff also asked defendant’s agents whether there was anything else about the condition of the building that he should know before deciding whether to make an offer. The real estate agents told him that they were not aware of anything. On March 6, 1985, plaintiff sent a letter of intent to purchase the warehouse to Mura.

In July 1985, a second meeting was held between plaintiff, Mura, and the defendant’s agents. At this meeting, one of defendant’s agents informed plaintiff and Mura that they had checked with defendant and that the material on the columns and beams was “not a problem.”

In August 1985, defendant was sold by General Mills, Inc., to Munford, Inc. (Munford). Munford’s administrative vice-president, Mr. Jay Rubel, took over the negotiations on behalf of defendant for the sale of the building. Rubel toured the warehouse. He asked if the material on the columns contained asbestos and was informed that it did. Rubel was then informed by defendant about an October 6, 1980, asbestos report, and shown a copy of the report. The report was an intracompany memo from General Mills to defendant which was based on an analysis by General Mills of the material on the columns and beams. The analysis of the material showed a content of 8% to 10% chrysotile asbestos. Additionally, air-monitoring analyses had been done inside the warehouse and the report revealed that the levels of airborne asbestos were very low compared to the Occupational Health and Safety Administration (OSHA) standard. According to the report, no significant adverse health effects would be expected among employees working in the warehouse. In that correspondence General Mills specifically recommended, in order to ensure that the airborne asbestos concentrations remained low, that all columns covered with asbestos-containing material be enclosed. In addition, General Mills recommended that employees working in the warehouse should be trained to prevent accidental dislodging of the insulation.

Upon learning of the existence of the asbestos report, Rubel inquired of an in-house lawyer whether defendant had a legal obligation to disclose the fact that asbestos was on the columns. He was told it had no such legal obligation. In addition, in his third amended complaint, plaintiff alleged that Rubel inquired of senior corporate officials whether the existence of the report should be revealed to plaintiff. Plaintiff alleged that Rubel was advised that neither the report nor the presence of asbestos should be made known to plaintiff.

The contract of sale was signed December 11, 1985. Before closing, plaintiff met with Rubel and asked if there was anything about the condition of the building that he should know before continuing with the process of the purchase of the building. Rubel did not inform plaintiff about the presence of asbestos on the columns and beams or about the existence of the General Mills report. He failed also to mention the recommendation of remedial measures and education of employees as to the treatment of the asbestos insulation. The closing was conducted on June 16,1986.

Plaintiff first learned of the presence of asbestos in April 1988, after scientific analysis was performed on the material. Shortly thereafter, plaintiff contacted Rubel and inquired about the problem. Rubel acknowledged the existence of the asbestos, informed plaintiff of the report, and indicated his impression that the asbestos, if left undisturbed, would cause no problem.

FACTS ALLEGING TORTIOUS INTERFERENCE

On September 11, 1985, in conjunction with plaintiff’s negotiations to buy the warehouse, Rubel wrote plaintiff affirming that defendant would “have no objection to additional retail space being developed within the property as long as it [was] non-competitive.”

In May 1990, plaintiff entered into a contract with Thornton Oil Corporation (Thornton) to sell it a parcel of the property on which plaintiff’s warehouse and the defendant’s store are located. After defendant sold the property to plaintiff, defendant continued to maintain its store by leasing the space back from plaintiff. The contract plaintiff and Thornton entered into was contingent on several conditions, one of which was that the buyer had to receive governmental authorization, permits, and/or approvals required for the buyer’s intended uses.

On November 5, 1990, the land use committee of the Planning and Land Use Commission of the City of Elgin unanimously approved a proposal presented by plaintiff and Thornton for plaintiff to sell the southern part of plaintiff’s property to Thornton for use as a gas station/convenience store. A zoning variance was necessary to permit the use of the land for this purpose. The matter then proceeded to the Elgin city council.

Defendant was not notified or consulted by plaintiff regarding the planned development. Defendant became aware of the petition for a zoning variance only after the land use committee had met. Defendant voiced its opposition to the variance in a letter from its president and chief executive officer, John Popple, to the City of Elgin. Defendant opposed the variance because the proposed use would (1) interfere with defendant’s store’s parking which was located on the property; (2) restrict visibility of defendant’s store; and (3) aggravate traffic patterns and make the entrance and exit to the parking lot more hazardous. Plaintiff alleges that defendant, through Popple, “wilfully and maliciously interfered with plaintiff’s contemplated transaction with Thornton Oil Company by utilizing the input and influence of Mr. Popple’s wife, Mrs. Cheryl Popple, an Elgin city council member, to generate opposition to plaintiff’s zoning request.”

After listening to argument in opposition, the Elgin city council denied the proposed variance. By the terms of plaintiff’s contract, the deal with Thornton fell through.

Plaintiff filed his third amended complaint. Defendant filed motions to dismiss counts I, II, and III of the plaintiff’s third amended complaint, pursuant to section 2 — 615 of the Code of Civil Procedure. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 615.) On June 16, 1992, the trial court granted defendant’s motions to dismiss counts I and III with prejudice and denied defendant’s motion to dismiss count II but certified the question under Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308). Plaintiff timely filed a notice of appeal regarding the trial court’s dismissal of counts I and III. This court granted defendant’s application for leave to appeal the ruling on count II and consolidated the appeal and the cross-appeal.

A complaint must be sufficient legally in order to state a cause of action. (Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, 160.) Upon a motion to dismiss, all facts properly pleaded in the complaint are taken as true and all reasonable inferences are drawn in favor of the nonmovant. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 438.) A pleading need not show a certainty of recovery, only a possibility of recovery, and it should not be dismissed unless it appears that the pleader in no event would be permitted to recover. Zimmerman, 156 Ill. App. 3d at 160-61.

COMMON-LAW FRAUD

Plaintiff’s first contention is that the trial court erred in dismissing count I, which purported to allege common-law fraud. In his third amended complaint, plaintiff asserted common-law fraud under two theories: fraudulent misrepresentation and fraudulent concealment. The rationale of the trial court was that the representations alleged were not “actionable.” We disagree. We determine that the complaint adequately alleges common-law fraud under both theories.

The facts which comprise an alleged fraud must be pleaded with sufficient specificity, particularity, and certainty to apprise the other party of how he is to defend himself. (Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 457.) The pleadings must contain specific allegations of facts from which fraud is the necessary or probable inference. (A, C & S, Inc., 131 Ill. 2d at 457.) The elements of a cause of action for fraudulent misrepresentation are: (1) false statement of material fact; (2) known or believed to be false by the party stating it; (3) intent to induce the other party to act; (4) action in reliance by the other party; and (5) damage to the other party resulting from such reliance. (Soules v. General Motors Corp. (1980), 79 Ill. 2d 282, 286.) In his third amended complaint, plaintiff alleged the following facts: his agent, Mura, inquired as to the nature of the material on the columns; the answer which was given by defendant’s real estate agents after checking with defendant was that the material was “not a problem”; defendant knew of the existence of the asbestos in the column material and also of the existence of the report recommending remedial actions; the intent of the false statement was to induce the plaintiff to enter into a contract to purchase the warehouse; plaintiff relied on the statement and purchased the property to his detriment; there are significant costs of remediation of asbestos-containing insulation and, thus, the value of the property is diminished.

Defendant contends that the statement that the material was “not a problem” was true and that this is supported by the asbestos report which revealed that the airborne asbestos levels were well below the allowable OSHA standard. Defendant further contends that the report concluded that no significant adverse health effects would be expected among people working in the warehouse. A statement which is technically true as far as it goes may nonetheless be fraudulent if it is misleading because it does not state matters which materially qualify that statement. (St. Joseph Hospital v. Corbetta Construction Co. (1974) 21 Ill. App. 3d 925, 952-53.) Moreover, “half the truth may obviously amount to a lie, if it is understood to be the whole.” (W. Prosser, Law of Torts §106, at 696 (4th ed. 1971).) Here, although it is true that there was no immediate “problem” with respect to airborne asbestos contamination, there was the problem of potential release of asbestos into the warehouse environment. This issue was one of which defendant was well aware, since there were recommendations included in the report to enclose the material on the columns and educate employees about working in the vicinity of the material. We determine that plaintiff sufficiently alleged that defendant made a false statement.

Defendant posits that the statement was opinion, not fact, and thus is not actionable. It is the rule in Illinois that statements of opinion, as opposed to fact, do not give rise to an action for fraud. (Marino v. United Bank of Illinois, N.A. (1985), 137 Ill. App. 3d 523, 527.) However, whether a statement is one of fact or opinion depends upon the circumstances of each case.

“ ‘Wherever a party states a matter which might otherwise be only an opinion but does not state it as the expression of the opinion of his own but as an affirmative fact material to the transaction, *** the statement clearly becomes an affirmation of the fact within the meaning of the rule against fraudulent misrepresentation.’ ” (Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 197, quoting Buttitta v. Lawrence (1931), 346 Ill. 164, 173.)

Furthermore, Professors Prosser and Keeton point out that it has been recognized that the expression of an opinion may carry with it an implied assertion that the speaker knows facts which would justify the opinion. He states:

“[T]he ordinary man is free to deal in reliance upon the opinion of an expert jeweler as to the value of a diamond, of an attorney upon a point of law, of a physician upon a matter of health, of a banker upon the validity of a signature, or the owner of land at a distance as to its worth, even though the opinion is that of his antagonist in a bargaining transaction. On the same basis it has been held that statements by a seller as to the capacity of the thing sold, or the condition of land, or other matters, which on the part of one without special knowledge would be regarded as mere opinion, may be relied on as statements of fact.” (W. Keeton, Prosser & Keeton Torts §109, at 761 (5th ed. 1984).)

Here, defendant’s realtor sought out information from defendant and communicated that information to plaintiff on a matter concerning the condition of defendant’s property. It was on a matter peculiarly within the realm of knowledge of defendant, as owner of the property. We determine that, in the instant case, sufficient facts are alleged to support the notion that even if the statement was an opinion, it carried with it an implied assertion that the speaker knew facts which would justify the opinion, and thus could be taken as a statement of fact.

Defendant asserts that the statements were not material and thus no fraudulent misrepresentation occurred. A misrepresentation is “material” if it is such that, had the other party been aware of the statement, he would have conducted himself differently. (Brown v. Broadway Perryville Lumber Co. (1987), 156 Ill. App. 3d 16, 24.) Plaintiff alleges in his third amended complaint that he would not have closed or completed the purchase of the warehouse had he known of the existence of asbestos in that building. It is noted that the response to plaintiff’s agent’s inquiry came before the contract of sale was signed. Thus, taken in the light most favorable to plaintiff, the evidence supports the fact that plaintiff relied on the statement. Thus, materiality is sufficiently alleged.

Next, defendant argues that plaintiff did not allege facts to establish a knowledge of the falsity of the statement. First, plaintiff alleged that defendant knew of the contents of the report and the existence of the asbestos in the warehouse insulation. Defendant’s knowledge of the contents of the report means that defendant had knowledge of the health hazard that asbestos can pose, since the report referred to “significant adverse health effects” and remedial measures to avoid them. It is also alleged that the purpose of concealing the existence of the report and the existence of the asbestos on the columns was to deceive plaintiff and to encourage plaintiff to purchase the building.

Furthermore, it is clear that plaintiff’s allegations are sufficient to support the requirement of knowledge of falsity by defendant, whether defendant’s agents knew of the asbestos or not. We acknowledge the purported false statements were made by defendant’s agent(s), not by defendant itself. If the defendant’s agents knew of the existence of the report and the asbestos, then their principal, defendant, would be liable for the representations and concealment by the agents. A principal may be liable to third parties for wrongful or tortious acts committed by his agent at his direction or while acting within the scope of his authority. (City of Chicago v. Roppolo (1983), 113 Ill. App. 3d 602, 614.) Nevertheless, if the defendant’s agents did not know of the existence of the report and the asbestos, then their principal, defendant, is still liable for the misrepresentation. Where a principal is selling property with a hidden defect, or where an agent is employed to conduct a single transaction and the matter is not readily discoverable, the principal has the duty to inform a selling agent of the defect. In such cases, the failure to inform the agent may be the basis of liability. (Restatement (Second) of Agency §256, Comment d, at 557 (1958).) Thus, it is sufficiently alleged that defendant knew of the falsity of the statement.

In addition, plaintiff also adequately adduced an intent to induce the plaintiff to act. Plaintiff alleged that defendant was at all times prior to the closing aware that plaintiff and his agent had inquired about the nature of the material on the columns and, with full knowledge and intent to deceive, concealed and fraudulently misrepresented the condition of the building, and failed to deliver the asbestos report to the plaintiff. Furthermore, plaintiff alleged that the purpose of concealing the existence of asbestos on the columns was to deceive plaintiff and to encourage plaintiff to consummate the transaction to purchase the building.

Next, defendant disputes plaintiff’s reliance. Defendant argues that plaintiff did not rely on the statement “it’s not a problem” because he had previously made an offer to buy the building. We do not agree. Plaintiff has sufficiently alleged that he relied on the misrepresentation by alleging that he would not have completed the purchase of the warehouse had he known of the existence of asbestos in the building.

Next, defendant contends that plaintiff’s reliance on defendant’s agent’s statement was not justified as a matter of law. Defendant relies on Smith v. Ethell (1986), 144 Ill. App. 3d 171, to stand for the proposition that reliance on another’s statements is not justified where the plaintiff-purchaser noticed a possible defect, had an opportunity to inspect before signing the contract, and planned a substantial investment. (Ethell, 144 Ill. App. 3d at 175.) However, that case is distinguishable. In Ethell, the plaintiff-purchasers of a tavern noticed that the ceiling was sagging and had water stains. Upon inquiry, plaintiffs were informed by defendants-vendors that the roof was in good condition, that it did not leak, and that the water stains were caused by an air conditioner located above the ceiling. Further, the defendant repeatedly discouraged the plaintiffs from going into the attic to inspect. After purchasing the building, plaintiffs discovered holes in the roof and sought to rescind the contract. The court held that the plaintiffs were on notice of a potential defect and were not justified in their reliance on defendants’ statements. Ethell, 144 Ill. App. 3d at 175.

That case is distinguishable on the basis that in Ethell at issue was a patent defect, whereas in the instant .case at issue is a latent defect, that is, one which is hidden or concealed. (Munjal v. Baird & Warner, Inc. (1985), 138 Ill. App. 3d 172, 179.) In the instant case, although plaintiff noticed the deteriorated nature of the material on the columns, the presence of asbestos fibers is not detectable by the naked eye. The material must be subjected to microscopic analysis to detect the presence of asbestos, and thus is a latent defect.

We considered a case in which a latent defect existed in Munjal v. Baird & Warner, Inc. (1988), 138 Ill. App. 3d 172. In that case, the foundation of the home for sale was improperly built below the level of groundwater. Defendant-seller had been notified by the village that a significant portion of his property was on a floodplain. When plaintiff-purchaser asked about water seepage on one of the basement walls, defendant-seller said he had noticed leaking there one other time, two years before, but that it had dried up. Plaintiff purchased the house. Within the first six months that plaintiff lived in the house, the basement flooded five to six times. Plaintiff brought suit, charging common-law fraud, alleging that defendant misrepresented that the water in the basement was a temporary situation. Expert testimony established that the house with the defect was worth significantly less than plaintiff paid for it. Other expert testimony established that there was a hidden defect: the foundation was built lower than the level of groundwater. The court ruled that the seller’s failure to disclose the full extent of the problem was an attempt to induce purchaser to buy the house for a value that did not reflect the existence of the defect. (Munjal, 138 Ill. App. 3d at 180-81.) We affirmed the jury’s verdict of fraud. Munjal, 138 Ill. App. 3d at 181.

Like the latent defect in Munjal, the defect in the instant case was not detectable without expert analysis. As in Munjal, the seller in the instant case was aware of the defect. In both cases, the purchaser inquired about the nature of the symptoms of the defect, i.e., in Munjal, inquiry was made as to the water on the walls and floor, and in the instant case inquiry was made as to the nature of the fluffy material on the columns. Because a latent defect is at issue, we determine that plaintiff’s reliance on defendant’s agent’s representations was justified in the instant case. We conclude that plaintiff has adequately alleged the elements of fraudulent misrepresentation.

In addition, we determine that the plaintiff adequately alleged common-law fraud on the basis of fraudulent concealment. Mere silence in a business transaction does not amount to fraud. (Russow v. Bobola (1972), 2 Ill. App. 3d 837, 841.) Yet, silence accompanied by deceptive conduct or suppression of material facts gives rise to active concealment; it is then the duty of the party which has concealed information to speak. Russow, 2 Ill. App. 3d at 841.

In the instant case, plaintiff alleged the following facts: the presence of asbestos fibers in the insulating material on the columns was a latent defect not discoverable without the use of sophisticated scientific testing; the defendant knew of the defect by way of the asbestos report in its possession; the defendant had a duty to reveal the existence of the report and the asbestos in the building upon inquiry from plaintiff; Rubel was advised by senior corporate officials not to reveal the existence of the report; plaintiff’s agent inquired of defendant about the nature of the material on the columns; despite the knowledge of the existence of the report and the presence of asbestos, defendant and its agents did not reveal to plaintiff the material facts regarding this issue; and plaintiff would not have bought the warehouse if he had known of the latent defect. Thus, in the instant case, defendant had knowledge of a material fact: the existence of asbestos in the warehouse insulation. Plaintiff alleges defendant suppressed that material fact, which gave rise to active concealment. (Russow, 2 Ill. App. 3d at 841.) On this basis, we find that sufficient facts asserting fraudulent concealment were alleged.

Defendant argues that the theory of fraudulent concealment fails, as there can be no duty to disclose absent a fraudulent misrepresentation and defendant contends no fraudulent misrepresentation occurred. We determine that defendant is mistaken in this belief. As we have already discussed, Illinois law supports the notion that" fraudulent concealment may be found in the absence of an affirmative misrepresentation. That is, silence accompanied by deceptive conduct results in an act of concealment, and at that point a duty to disclose arises. (Russow, 2 Ill. App. 3d at 841; see also Posner v. Davis (1979), 76 Ill. App. 3d 638, 643.) The cases cited by defendant, Zanbetiz v. Trans World Airlines, Inc. (1966), 72 Ill. App. 2d 192, and Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, can be distinguished. In Zanbetiz, the plaintiff was injured at Chicago O’Hare International Airport, after arriving there upon one of defendant’s flights. She notified defendant of her injury, but did not know that the airport was owned by the City of Chicago, so did not notify it of her injury. Plaintiff was visited by an insurance adjuster or investigator on behalf of the City of Chicago, but was not informed by such agent of the identity of his principal, nor the fact that defendant was not the owner of the airport. At issue was the expiration of a statutory six-month notice period in which plaintiff was required to make her claim known to the City of Chicago. Plaintiff alleged fraud on the basis that the insurance investigator should have made known to her who owned the airport so that she could notify the appropriate party within the statutory period. The court held that the mere silence by the investigator as to this information was not a fraudulent misrepresentation. (Zanbetiz, 72 Ill. App. 2d at 201.) The court reasoned that plaintiff had access to public records to ascertain the ownership of the airport. (Zanbetiz, 72 Ill. App. 2d at 202.) Thus, Zanbetiz may be distinguished from the instant case because it involved facts accessible via public record and the instant case involves a latent defect which is not discoverable absent scientific analysis.

In Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, plaintiff-purchaser alleged fraud in defendant’s construction and sale of a new home which had defects. The court determined that no fraud by concealment or misrepresentation occurred. (Naiditch, 160 Ill. App. 3d at 261.) What was lacking in Naiditch were allegations by-plaintiff that defendant made misrepresentations to induce plaintiff to buy the house. Thus, there was no allegation by plaintiff of defendant’s deceit. Indeed, the evidence merely established that the house was not built in accordance with the plans and thereby was defective. (Naiditch, 160 Ill. App. 3d at 261.) Naiditch can be distinguished from the instant case on the basis that such allegations were clearly made by plaintiff in the instant case. Plaintiff adduced that defendant had in its possession the written report which revealed the existence of asbestos in the material covering the columns in the warehouse and did not reveal its existence to plaintiff. Plaintiff further alleged that the purpose of concealing the existence of the asbestos report and the existence of asbestos on the columns was to deceive plaintiff and to encourage plaintiff to consummate the transaction to purchase the building. Thus, allegations of defendant’s deceit were made in the third amended complaint. In conclusion, we determine that plaintiff has adequately pleaded fraudulent concealment in his third amended complaint.

Defendant argues that the trial court’s dismissal of count I is supported further on the ground that plaintiff is bound by the judicial admissions contained in his original, verified complaint. Defendant asserts that the original, verified complaint did not allege any statements made by defendant about asbestos or the material on the columns; therefore, plaintiff’s failure to allege a discussion regarding those issues is binding upon him.

In general, the trial judge should concern himself only with the contents of the amended complaint when determining its sufficiency. This is because an amendment which is complete in itself and does not refer to a prior, unverified pleading will ordinarily supersede the prior pleading. It is thus that a prior, unverified pleading ceases to be part of the record since it is, in effect, abandoned or withdrawn. (Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App. 3d 667, 670.) However, where the original pleading is verified, it remains as part of the record upon the filing of the amended pleading. (Yarc, 17 Ill. App. 3d at 670.) Furthermore, the admissions of a party contained in an original, verified pleading are judicial admissions. Such judicial admissions bind the pleader despite the filing of an amended pleading which supersedes the original. (Yarc, 17 Ill. App. 3d at 670.) Admissions are not binding if the amended pleading asserts that the allegations in the original pleading were the product of mistake or inadvertence. Rynn v. Owens (1989), 181 Ill. App. 3d 232, 235-36.

In the instant case, at issue are the allegations only of the original, verified complaint and the third amended complaint, as the first amended and second amended complaints were not verified and therefore were not at issue. In the original, verified complaint, plaintiff alleged that he or his agent asked and received responses from defendant’s real estate agents about the condition of the building, including the condition of the roof, the boiler, and the sprinkler system. In the third amended complaint, plaintiff alleged that he or his agent asked and received responses about the condition of the building, including the condition of the roof, the boiler, and the amount of electrical power, as well as the nature of the material on the columns and beams in the warehouse. Defendant asserts that these omissions from the original, verified complaint constitute judicial admissions that the plaintiff’s inquiry and defendant’s response as to the nature of the material on the columns never occurred. We do not agree.

The Code of Civil Procedure permits an amendment to pleadings “in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought.” (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 616(a).) To further the process in which litigants fully present their causes of action and settle their controversies on the merits, the greatest liberality should be provided in allowing amendments to the pleadings. Calumet Construction Corp. v. Metropolitan Sanitary District (1991), 222 Ill. App. 3d 374, 381.

The cases cited by defendant may be distinguished from the instant case. (See Yarc, 17 Ill. App. 3d 667 (where the incorporation by reference of evidence of lease negotiation such as unexecuted leases into a prior, verified complaint precluded plaintiff from later alleging that a hold-over tenancy was created between himself and defendants); Schmahl v. A.V.C. Enterprises, Inc. (1986), 148 Ill. App. 3d 324 (where defendant was not permitted to assert in a later-submitted affidavit that he had the ability to satisfy the debt owed plaintiff after testifying in a prior deposition that he did not have the ability to pay the debt at the time in question); Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475 (where plaintiff’s deposition testimony that he tripped over rubber bumpers just prior to a loading dock accident was held to be a judicial admission when other evidence demonstrated that no rubber bumpers were present on that loading dock at the time of the accident).) In those cases, a judicial admission was determined to have occurred as there were conflicts between a prior admission and a later pleading, and thus the prior admission precluded the later allegation. In the present case, plaintiff argues that he has merely made the allegations more specific in order to conform with investigations and discovery he has performed. We determine that the fact that facts were omitted from the original, verified complaint does not constitute an admission arising from a conflict between the facts pleaded in the original, verified complaint and the facts pleaded in the third amended complaint. Therefore, the omission of allegations from the original, verified complaint does not constitute a judicial admission. In conclusion, the allegations of count I of the third amended complaint are sufficient to warrant a reversal of dismissal of that count.

TORTIOUS INTERFERENCE

Plaintiff argues that the trial court erred in dismissing count III of the third amended complaint which alleged tortious interference with plaintiff’s prospective economic advantage. The trial court’s rationale in dismissing count III relied on Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, to support the proposition that there is a constitutional right for a citizen to appear in front of a legislative body to try to induce them to perform a specified act or redress a grievance.

To prevail on a claim for tortious interference with plaintiff’s prospective economic advantage, plaintiff must prove: (1) his reasonable expectation of entering into a cogent business relationship; (2) the defendant’s knowledge of the plaintiff’s expectancy to enter into a business relationship; (3) purposeful interference by the defendant that prevents the plaintiff’s legitimate expectancy from developing into a valid business relationship; and (4) damages to the plaintiff resulting from the interference. (Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 511.) The constitutional right to petition the government for redress of grievances justifies interference and bars a claim for tortious interference. (Arlington Heights, 37 Ill. 2d at 549-50.) However, such privilege is not absolute. Where such a privilege exists, an action for tortious interference will prevail where plaintiff can plead malice. (Arlington Heights, 37 Ill. 2d at 551.) Thus, to succeed, it is plaintiff’s burden to plead, through setting forth specific facts, that defendant’s actions were unjustified or malicious. Fellhauer, 142 Ill. 2d at 512-13.

In the instant case, we determine that plaintiff does not sufficiently adduce malice to overcome the privilege. According to the record, in count III plaintiff alleged that “defendant interfered in a direct and wilful effort to gain leverage over plaintiff in his asbestos lawsuit.” The count went on to adduce that “[defendant, through its President and Chief Executive Officer, John Popple, wilfully and maliciously interfered with plaintiff’s contemplated transaction with Thornton Oil Company by utilizing the input and influence of Mr. Popple’s wife, Mrs. Cheryl Popple, an Elgin City Council member, to generate opposition to plaintiff’s zoning request.” We determine that such aHegations are conclusory and do not sufficiently allege facts to support a finding of malice. Since the privilege is not overcome by adequately pleading malice, the count fails to plead sufficiently tortious interference with prospective business advantage. We affirm the trial court’s dismissal of count III with prejudice.

SECTION 353 CLAIM

In count II of plaintiff’s third amended complaint, plaintiff sought relief under the theory of tort liability which comes under section 353 of Restatement (Second) of Torts, “Undisclosed Dangerous Conditions Known to Vendor.” (Restatement (Second) of Torts §353 (1965).) To state a claim under section 353, plaintiff-purchaser must sufficiently allege that (1) defendant-vendor concealed or failed to disclose a condition which, prior to the sale, created an unreasonable risk to persons on the land; (2) the defendant knew or had reason to know of the condition and realized or should have realized the risk involved; (3) that defendant had reason to believe that plaintiff would not discover the condition; (4) that the condition caused physical harm, after plaintiff took possession but before plaintiff knew or had reason to know of the condition and the risk involved; and (5) before plaintiff had an opportunity to take precautions to prevent the injury. Restatement (Second) of Torts §353 (1965.)

In denying defendant’s motion to dismiss count II, the trial court relied exclusively on the decision in Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428. The trial court stated that under A, C & S “whenever you are dealing with something like asbestos, you have to extend the relief beyond the limits that are suggested.” According to the trial court, the “underlying philosophy” that is expressed in A, C & S dictates that “the mere fact of [the asbestos’] existence creates the potential for liability.” Although the trial court indicated that it knew that A, C & S should be limited to the facts of that case, it ruled that “underlying that whole decision *** is a suggestion that asbestos is so onerous as to be a separate, independent condition which the courts are going to have to deal with.” We do not agree with the trial court’s analysis. We find the A, C & S case distinguishable from the instant case and on the basis of the following analysis reverse the trial court’s ruling on count II.

It is well established that vendors of real estate are generally not liable for damages due to a condition existing on the property at the time of sale. (See Restatement (Second) of Torts §352 (1965); Anderson v. Cosmopolitan National Bank (1973), 54 Ill. 2d 504, 507.) This reflects the doctrine of caveat emptor. The deed of conveyance represents the full agreement of the parties and excludes all other terms and liabilities. (Restatement (Second) of Torts §352, Comment a, at 234-35 (1965).) Furthermore, public policy supports the free and unhindered sale of real estate, which would be undermined if vendors were to be held liable for injuries which occurred after they sold their interest to another party. Maisenbach v. Buckner (1971), 133 Ill. App. 2d 53, 56.

The policies governing real estate transactions differ significantly from the policies applied to other commercial transactions. This is reflected in the distinctions between product liability law, under which a seller’s liability continues beyond the sale, and real estate law, under which the seller’s liability is determined at the time of transfer of property. In the instant case, plaintiff does not have the same recourse against defendant-seller as he would against the manufacturer of the asbestos-containing insulation. It is on this basis that we find that the trial court erred in relying on the A, C &S case. In relying on A, C & S, the trial court in this case relied on a product liability action against manufacturers of asbestos where the plaintiff was required by law to remove all asbestos that constituted a health hazard. In contrast, Weyerhaeuser Co. v. Edward Hines Lumber Co. (N.D. Ill. 1991),_F. Supp._, was a section 353 claim against a seller of property, which is more like the instant case. In Weyerhaeuser, plaintiff-purchaser bought land from defendant-seller which had been used in defendant’s lumber business. On that land there were underground storage tanks for chemical wastes installed and maintained. After execution of the sales contract, plaintiff wrote defendant requesting disclosure of hazardous substances on the land. No response was made, so plaintiff relied on the silent representation that there were no known environmental problems on the land. The Weyerhaeuser court recognized that A, C & S did not apply in the context of a real estate transaction because of “a key factual distinction” between the cases. “[A, C & S] was a products liability action brought not against the former owner and vendor of land but against the manufacturers of asbestos material ***. Thus the Illinois Supreme Court did not have to contend with the traditional] rule of non-tort liability of real estate vendors.” {Weyerhaeuser, _ F. Supp. at__) Thus, despite the fact that A, C & S dealt with asbestos, as the instant case does, the long-standing policy against real estate vendors’ liability precludes application of A, C & S to this case.

Moreover, plaintiff seeks damages which constitute economic losses — diminished property value, cost of removing contaminants, and consequential loss of income (analysis costs, lost rent, disruption, and time). In Moorman, the supreme court defined damages for inadequate value, costs of repair and replacement of the defective product, and consequential loss of profits — without claim for personal injury or damage to other property — as “economic losses.” (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 82.) In this context, this case can again be distinguished from A, C & S. In that case, the plaintiffs had alleged the requisite “damage to other property” because what was bought from defendant was asbestos-containing material which damaged “other” property — the buildings in which it was applied. (A, C & S, 131 Ill. 2d at 446.) Thus, the damage went beyond the product sold by the defendants. Here, the sale included more than asbestos insulation; it included the warehouse and all the fixtures in it. Although plaintiff alleges that “other property” located on the second floor was contaminated with asbestos, plaintiff does not sufficiently allege that “other property” outside the context of the real estate sale was contaminated by the asbestos insulation materials. Therefore, the damages plaintiff seeks constitute “economic losses” according to Moorman. Thus, on this basis, this court reverses the trial court’s order denying defendant’s motion to dismiss count II and remands to the trial court to dismiss count II with prejudice.

For the foregoing reasons, in the appeal by plaintiff, the judgment of the circuit court of Kane County is affirmed in part, reversed in part, and the cause is remanded. In the cross-appeal by defendant, the judgment of the trial court is reversed and the cause is remanded.

Affirmed in part; reversed in part and remanded.

UNVERZAGT and WOODWARD, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re ADOPTION OF S.J.M., a Minor (J.P.C. et al., Petitioners-Appellees, v. C.D.M., Respondent-Appellant).
    Second District
    No. 2 — 92—0292
    Opinion filed May 5, 1993.
    Rehearing denied June 14, 1993.
   The above-captioned opinion was withdrawn from publication November 9, 1993, and a Rule 23 was filed in lieu thereof.


author: JUSTICE QUETSCH

text:
    BEN C. SCHWEICKART et al., on Behalf of Themselves, the Woodhaven Association and its Members, Plaintiffs-Appellees, v. RUTH POWERS et al., Defendants-Appellants.
    Second District
    No. 2 — 92—1065
    Opinion filed May 11, 1993.

      Steven P. Bloomberg and George A. Marchetti, both of Moss & Bloomberg, Ltd., of Bolingbrook, and George H. Litow, of Paw Paw, for appellants.
    Patrick J. Liston, of Pignatelli & Pignatelli, of Rock Falls, and Robert J. Lepri, of Trizna, Lepri, Rogers & Munden, of Chicago, for appellees.
   JUSTICE QUETSCH

delivered the opinion of the court:

Plaintiffs, Ben Schweickart, Frank O’Shea, Richard Doran, Jr., and James Barthel et al., filed a five-count complaint against defendants, Ruth Powers, Donald Hartman, Charles Lehman, Mary Mot-singer, Sorrell Pischke and John Smith, requesting declaratory and injunctive relief. Plaintiffs alleged defendants breached their fiduciary duties to the Woodhaven Association, a common-interest community, and its members by disqualifying plaintiffs from running for election to Woodhaven’s board of directors. The trial court granted plaintiffs’ request for a preliminary injunction permitting plaintiffs to resume campaigning and prohibiting defendants from opening ballots already collected until a hearing could be held on the merits of plaintiffs’ claim. Defendants appeal, contending the trial court erred in granting the injunction because plaintiffs had alternate relief available to them, the court failed properly to balance the equities, and the court failed to find that the plaintiffs have a substantial likelihood of success on the merits. We affirm.

The Woodhaven Association (Woodhaven) is a not-for-profit corporation established to promote the common interests of its members. All members are owners of campsites in the Woodhaven Lakes development. Woodhaven is managed by an elected board of directors (board). According to Woodhaven bylaws, to qualify as a director one must be a member of the association in good standing, 21 years of age and fiscally responsible. A member in good standing is defined as a member current in the payment of assessments and not in violation of any provision in the declaration of covenants, bylaws, or rules and regulations as adopted by the board of directors.

The board has established extensive rules and regulations designed to enforce restrictive covenants, regulate the types of structures in the development, and regulate the transaction of business in the development. Candidates for the board must sign an oath attesting to their qualifications as defined by the rules and regulations before he or she receives a petition for nomination for candidacy. The testimony at the hearing on the preliminary injunction revealed the following.

Plaintiff Ben Schweickart testified that he has been a member of the Woodhaven Association since August 1982. He was elected to the the board of directors in 1985 and in 1988. He filed the necessary documents to run for election again late in May 1992. Schweickart received a letter dated June 9, 1992, from Robert Mahnke, general manager of the Woodhaven Association whose duty it is to oversee the election process, commending Schweickart’s commitment to Woodhaven and notifying Schweickart of certain campaign deadlines. On June 12, 1992, Mahnke notified Schweickart that he was in violation of certain regulations and that, as a potential candidate, he had until 12 p.m. on July 20,1992, to correct the areas of noncompliance.

Schweickart stated the rules provide a property owner in violation of the covenants or rules and regulations be given approximately 30 days to correct the problem. If the problem is not corrected, a citation is issued. Once a citation is issued, a property owner may request a hearing before the appeals board. He had not received a citation.

The alleged violations dealt with certain lights which hung on trees on his campsite which Schweickart subsequently removed, electric and television antenna permits, the placement of his trailer on the property, and an alleged outstanding citation which subsequently proved to be a mistake. Schweickart corrected the alleged violations. However, the board informed him that he needed to obtain a plot survey in order to get a variance for his trailer.

Schweickart’s trailer had been placed on the lot in 1984. The alleged violation had not been raised in either of the other two board elections in which Schweickart participated. The board’s letter alleged the tip of the trailer was 18 inches into the easement along Schweickart’s property. Schweickart testified that he was under the impression that at the time he placed his trailer on the property it was permissible to have a “tip out” or a “slide out” into the easement area up to two feet. This fact was later verified by Scott Schulz, a member of Woodhaven’s staff, at the hearing on the variance for Schweickart’s property.

After Schweickart corrected all the alleged violations and received the variance he was told that he still did not qualify to run for election to the board because he was a permanent resident in violation of the covenants and restrictions. However, in a separate action brought previously by other members of the association, the circuit court of Lee County found that Woodhaven was estopped from enforcing the permanent residence restriction.

Frank O’Shea testified that he received a letter from Woodhaven dated June 12, 1992, informing him that he was not qualified to run for election to the board because he did not have permits on file for his television antenna and electrical services. After the permits were submitted, O’Shea received a letter dated June 26, 1992, informing him that he was no longer in violation of any rules, regulations, bylaws, covenants or restrictions.

O’Shea subsequently received a letter dated July 1, 1992, informing him that his lot was missing a pin which was crucial in determining whether he was in violation of setback requirements. As a result, he was told to obtain a plot survey by a licensed surveyor which would be used to determine if any variances were needed. The deadline for all of the information was July 11,1992.

Robert Mahnke testified that there is no rule or regulation requiring a property owner to submit a survey unless that property owner is requesting a variance. In addition, no regulation required candidates for the board of directors to submit such surveys. Mahnke also admitted that O’Shea was probably not in violation of any rules and regulations. Because O’Shea did not submit a survey, he was disqualified.

Richard Doran and James Barthel were notified of certain violations. After correcting the violations, they were disqualified for reasons similar to Schweickart and O’Shea. Mahnke testified that at the time they were disqualified neither had been issued a citation of any kind or provided a hearing.

Plaintiffs were not allowed on the election ballot. On July 31, 1992, plaintiffs’ attorneys requested the board delay mailing the ballots until September 1, 1992. The request was denied August 3, 1992. The published election schedule called for the ballots to be mailed on August 13, 1992. Robert Mahnke mailed the ballots on August 8, 1992, on his own initiative.

Plaintiffs filed a five-count verified complaint on August 10, 1992, requesting declaratory and injunctive relief. Defendants filed a motion to dismiss upon which a hearing was held on August 14, 1992. The motion was denied as to four of the counts and the court reserved ruling on the fifth count. The hearing on the preliminary injunction was held on August 21, 1992. The court granted plaintiffs’ request for a preliminary injunction on August 28, 1992. Plaintiffs were permitted to resume campaigning and defendants were enjoined from interfering with plaintiffs’ campaign effort. Defendants were also enjoined from opening any of the ballots returned until a hearing on the merits could be held. The hearing was set originally for September 28, 1992.

Defendants filed this appeal pursuant to Supreme Court Rule 307(a). (134 Ill. 2d R. 307(a).) On appeal, defendants contend the trial court erred in permitting plaintiffs to resume campaigning while enjoining defendants from interfering with plaintiffs’ campaign efforts and enjoining defendants from opening the ballots already received in the election. Plaintiffs filed a motion to dismiss defendants’ interlocutory appeal, asserting the appeal is moot as to the issue of campaigning and not yet ripe as to the propriety of holding the ballots until a full hearing on the merits. We ordered this motion taken with the case.

Plaintiffs contend that the portion of this interlocutory appeal regarding the right of the plaintiffs to continue campaigning is moot because the evidence below reveals that their ability to campaign for all intents and purposes effectively ceased after Labor Day 1992. We agree.

It is well established that a reviewing court will dismiss a pending appeal where the court has notice of facts which show that only a moot question is involved. (Harris v. Education Officers Electoral Board of Community Consolidated School District 110 (1990), 203 Ill. App. 3d 917, 919-20; see also George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 76.) A question is moot when no actual rights or interests of the parties remain or when events occur which render it impossible for the reviewing court to grant effective relief to either party. Harris v. Education Officers Electoral Board, 203 Ill. App. 3d at 920; In re Marriage of Holem (1987), 153 Ill. App. 3d 1095,1098.

The record below consists of plaintiffs’ verified pleadings and the testimony presented at the hearing on the preliminary injunction, including exhibits. In their amended motion for a restraining order, plaintiffs alleged that the elections for vacancies on the board of directors historically take place during the summer season because the majority of residents are not present on the grounds of Woodhaven after Labor Day. Candidates have traditionally campaigned by way of personal appearances at combined section meetings of members of the association and paid political advertisements placed in Woodhaven’s weekly news publication. The combined section meetings allow large groups of members to meet with the candidates face-to-face. Plaintiffs testified that such meetings only take place during the summer months and the regular section meetings “taper off” after August. Moreover, the weekly news publication is distributed only to members at their campsites or is left at the entry gate for members to pick up.

In its order granting plaintiffs’ request for a preliminary injunction prohibiting defendants from interfering with plaintiffs’ attempts to campaign, the trial court held that the plaintiffs would suffer irreparable harm, because most of the members

“cease staying at Woodhaven, and stop visiting at [sic] Woodhaven after Labor Day. Effective campaigning requires reaching these people while they are at Woodhaven. Attempts to campaign after Labor Day would be expensive and ineffective, as the bulk of the owners would no longer be present.”

Defendants did not file an answer to plaintiffs’ verified complaint, nor did they present evidence at the preliminary hearing disputing plaintiffs’ contention that campaigning effectively ceases after Labor Day.

Accordingly, the evidence reveals campaigning effectively stopped after Labor Day, 1992. A reviewing court may take judicial notice of events which reveal that an actual controversy no longer exists between the parties. (Bundy v. Church League of America (1984), 125 Ill. App. 3d 800, 803.) When reversal of the order can have no practical effect on the controversy because of developments following the issuance of that order, questions arising from the order are moot. (Harris v. Education Officers Electoral Board, 203 Ill. App. 3d at 920.) The preliminary injunction was entered on August 28, 1992. In 1992, Labor Day was observed on September 7. Defendants’ notice of appeal was filed on September 21, 1992. Thus, we conclude the issue on appeal as to the propriety of the portion of the trial court’s order permitting plaintiffs to resume campaigning is moot and must be dismissed.

Defendants contend the issue is not moot and argue that a live controversy still exists pursuant to this court’s opinion in Bundy v. Church League of America (1984), 125 Ill. App. 3d 800. However, defendants’ reliance on our decision in Bundy is misplaced.

In that case, plaintiff Bundy appealed contending the trial court lacked jurisdiction to dissolve the injunction blocking certain actions of the defendants. (Bundy v. Church League of America, 125 Ill. App. 3d at 802.) Defendants argued the issue was moot because the actions Bundy sought to prevent had already taken place upon the dissolution of the injunction. (Bundy v. Church League of America, 125 Ill. App. 3d at 803.) After concluding the trial court lacked the jurisdiction to dissolve the injunction, we found the controversy was justiciable because every act of the court beyond its jurisdiction is void; thus, the injunction was still in effect and the actions of defendants were in violation of the injunction. Bundy v. Church League of America, 125 Ill. App. 3d at 807.

In their response to plaintiffs’ motion to dismiss the appeal, defendants in this case argue the issue is not moot because they are attacking the jurisdiction of the trial court to enter the injunction. This reasoning is defective for two reasons. First, defendants do not contend on appeal that the trial court lacked jurisdiction to enter the injunction. Rather, they question the propriety of the trial court’s decision to do so. Second, the issue remains moot even if we were to find the trial court lacked jurisdiction to enter the injunction in the first instance, which we do not, because vacating the injunction would have no practical effect.

Campaigning effectively ceased after Labor Day, September 7, 1992. Any action taken by this court with regard to that portion of the injunction would have no practical effect on the controversy. Where a decision reached on the merits would render wholly ineffective relief to the prevailing party, the court, in effect, has rendered an advisory opinion. (Harris v. Education Officers Electoral Board, 203 Ill. App. 3d at 920.) Illinois courts do not issue advisory opinions to guide future litigation. (George W. Kennedy Construction Co. v. City of Chicago (1986), 112 Ill. 2d 70, 76.) Accordingly, this portion of the appeal is dismissed.

In their motion to dismiss, plaintiffs also contend the portion of the trial court’s order enjoining defendants from opening the ballots already collected is not ripe for appeal until a full hearing on the merits is held. We disagree.

A controversy is ripe when it has reached the point where the facts permit an intelligent and useful decision to be made. (People v. Ziltz (1983), 98 Ill. 2d 38.) Plaintiffs argue that the propriety of the injunction relies on the decision ultimately reached on the merits of the case. To the contrary, the propriety of a preliminary injunction does not anticipate or depend upon the ultimate conclusion of a cause. Vasquez v. City of Woodstock (1993), 242 Ill. App. 3d 766, 773.

The purpose of Supreme Court Rule 307(a), providing for interlocutory review of an injunction, is to provide review of a trial court’s decision granting or denying a preliminary injunction before a decision on the merits is held. (134 Ill. 2d R. 307(a).) Clearly, the propriety of the trial court’s order enjoining defendants from opening the ballots is ripe for interlocutory appeal. We turn now to the issues raised by defendants on appeal.

To establish entitlement to a preliminary injunction, plaintiffs must demonstrate that: (1) they possess a certain and clearly ascertainable right which needs protection; (2) they will suffer irreparable harm without the protection of the injunction; (3) there is no adequate remedy at law for their injuries; (4) there is a substantial likelihood of success on the merits; and (5) in the absence of preliminary relief, they will suffer greater harm without the injunction than defendants will suffer if it is issued. (Vasquez v. City of Woodstock, 242 Ill. App. 3d at 770; Hough v. Weber (1990), 202 Ill. App. 3d 674, 684.) The decision whether to grant a preliminary injunction rests within the trial court’s broad discretionary powers, and appellate review of the court’s order is limited to a determination of whether the trial court has abused that, discretion. Vasquez v. City of Woodstock, 242 Ill. App. 3d at 771; Hough v. Weber, 202 Ill. App. 3d at 688; Mister v. A.R.K. Partnership (1990), 197 Ill. App. 3d 105, Ill.

On appeal, defendants first contend the trial court erred in granting injunctive relief because alternative relief was available. In particular, defendants argue that because declaratory relief was available to plaintiffs injunctive relief was not appropriate in this case.

However, defendants mischaracterize this portion of the test for whether the issuance of a preliminary injunction is appropriate. The standard is not whether alternative relief is available. Rather, the standard is whether an adequate remedy at law exists for plaintiffs’ injuries. (Vasquez v. City of Woodstock, 242 Ill. App. 3d at 771.) If an adequate legal or equitable remedy exists which will make the plaintiff whole after trial, a preliminary injunction will not issue. (Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 510-11.) In determining whether an adequate remedy at law or in equity exists which would make plaintiffs whole, the court must examine whether plaintiffs will suffer irreparable harm by waiting for a decision on the merits. See Kanter & Eisenberg v. Madison Associates, 116 Ill. 2d at 510.

Defendants’ argument that the availability of a declaratory judgment somehow precludes the issuance of a preliminary injunction is without merit. Plaintiffs’ complaint requested declaratory and injunctive relief. The appropriate inquiry is whether there existed a remedy which could make plaintiffs whole after a hearing on the merits.

Plaintiffs alleged in their pleadings and testified at the hearing that they would suffer irreparable harm without the injunction. Specifically, plaintiffs alleged they would lose the ability to campaign for the board vacancies after Labor Day, 1992. Moreover, if the election were held before a trial could take place, plaintiffs contend they would lose the opportunity to obtain effectual relief. We find support for plaintiffs’ contention in Harris v. Education Officers Electoral Board (203 Ill. App. 3d 917).

In that case, plaintiff challenged the nominating petition of a candidate for the school board contending it failed to comply with the law governing such petitions. (Harris, 203 Ill. App. 3d at 918.) Plaintiff requested that the nominating petition be stricken and that the candidate be declared ineligible for the election. The cause reached the appellate court eight months after the election in which the candidate won a seat on the board. (203 Ill. App. 3d at 920.) The court found that such relief would have no actual effect on the case because the candidate had already taken office. (203 Ill. App. 3d at 920.) Thus, the appeal was dismissed as moot. (203 Ill. App. 3d at 920.) Plaintiffs in the case at bar sought the injunction to prevent the loss of an effective remedy. They presented sufficient evidence to show they would be irreparably harmed without the injunction. Therefore, we conclude the trial court did not abuse its discretion in so finding.

Defendants also contend the trial court erred by failing to consider whether plaintiffs had a substantial likelihood of success on the merits and to rule accordingly. Our review of the record reveals the contrary. In its order granting plaintiffs’ request for the injunction, the trial court specifically noted that each plaintiff was likely to succeed on the merits. Thus, our examination of this issue must focus on whether the trial court properly reached this conclusion.

A preliminary injunction does not anticipate or depend upon the ultimate conclusion of a cause; rather, the granting of a preliminary injunction shows only that a sufficient case has been presented to preserve the property or rights in issue until a final hearing on the merits can be held. (Hough v. Weber, 202 Ill. App. 3d at 688.) Plaintiffs’ complaint alleged defendants violated their fiduciary duties to plaintiffs and other members of Woodhaven by preventing plaintiffs from running for election to the board of directors.

A fiduciary relationship exists where there is a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith with due regard to the interests of the other. (Wolinsky v. Kadison (1983), 114 Ill. App. 3d 527, 533.) We believe the Woodhaven Association is similar to a condominium association in that the association’s officers and board members serve the members of the Woodhaven Lakes community. Association officers and board members owe a fiduciary or quasi-fiduciary duty to the members of the association in that they must act in a manner reasonably related to the exercise of that duty, and failure to do so will result in liability not only for the association but also for the individuals themselves. (Wolinsky, 114 Ill. App. 3d at 533-34.) A board’s proper exercise of its fiduciary or quasi-fiduciary duty requires strict compliance with the association declaration and bylaws. Wolinsky, 114 Ill. App. 3d at 534.

The evidence presented at the preliminary hearing reveals that nowhere do rules and regulations of the association provide that candidates must obtain plot surveys before running for election to prove they are in compliance with all association rules and regulations. Plaintiffs were disqualified despite the fact they had not received citations for any violations pertaining to property setback requirements, etc. The purpose of a preliminary injunction is not to determine controverted rights or to decide controverted facts of the merits of the case. Vasquez v. City of Woodstock, 242 Ill. App. 3d at 773; Bryant v. Village of Sherman (1990), 204 Ill. App. 3d 583, 588.

Plaintiffs only need show they raised a “fair question” about the existence of their right and that the court should preserve the status quo until the cause can be decided on the merits. (Vasquez v. City of Woodstock, 242 Ill. App. 3d at 773-74; Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 386.) After a review of the record, we conclude the evidence presented below supports the trial court’s determination that plaintiffs raised a “fair question” as to whether defendants violated the association’s rules, regulations and/or bylaws and, thus, breached the fiduciary duties owed to plaintiffs and other association members, and that the trial court should preserve the status quo by enjoining the opening of the ballots.

Defendants next assert that the court failed properly to balance the equities in reaching its decision. In balancing the equities, the court must weigh the benefits of granting the injunction against the possible injury to the opposing party from the injunction. Mustacci v. Austin Bank (1992), 227 Ill. App. 3d 457, 459.

Defendants claim the court’s decision to grant the injunction causes a greater harm to them than a decision denying the injunction would cause plaintiffs. Defendants assert the injunction harms the approved candidates who spent money on election materials and the association which mailed the printed ballots, as well as the members who had already cast their ballots. We disagree.

The injunction in this case merely delays the counting of ballots until a decision can be determined on the merits. The purpose of an injunction is to preserve the status quo pending a decision on the merits of the cause in order to maintain the last uncontested status which preceded the controversy. (Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 674.) Injunctions that preserve the status quo are within the trial court’s discretion. (Mustacci v. Austin Bank, 227 Ill. App. 3d at 459.) Here, the court’s decision to grant the injunction was within its discretion because the injunction preserves the last uncontested status of the election by halting the counting of ballots until a final determination can be made. Without the injunction, the election would proceed and, as previously discussed, plaintiffs would be deprived of an effective remedy.

Lastly, defendants argue the rights at issue were political in nature and, therefore, the courts have no jurisdiction to enjoin those rights. In support of their argument defendants cite Fletcher v. City of Paris (1941), 377 Ill. 89. In that case, our supreme court held that the courts have no jurisdiction to enjoin the holding of an election because an election is a political matter. (Fletcher, 377 Ill. at 92.) However, this case is clearly distinguishable for the obvious reason that it pertains to governmental elections.

The election at issue in the present case is civil rather than political in nature. (See Levin v. Hunter (1955), 6 Ill. App. 2d 461.) The Woodhaven Association is a non-profit corporation. Accordingly, the election of its board of directors is not a “political matter” as discussed in Fletcher.

For the reasons set forth herein, the judgment of the circuit court of Lee County is affirmed.

Affirmed.

UNVERZAGT and WOODWARD, JJ., concur.


author: JUSTICE GEIGER

text:
    BRUCE GRATZLE, Plaintiff-Appellee, v. SEARS, ROEBUCK AND COMPANY, Defendant (Emerson Electric Company, Defendant-Appellant).
    Second District
    No. 2 — 92—1022
    Opinion filed May 14, 1993.

      Lenard C. Swanson, of Swanson, Martin & Bell, of Wheaton (Bruce S. Terlep, of counsel), for appellant.
    Thomas J. Stiberth, of Howard S. Miller & Associates, of Elgin (Howard S. Miller, of counsel), for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Emerson Electric Company, appeals from a judgment entered for the plaintiff, Bruce Gratzle, pursuant to a jury trial in a product liability action. On appeal, the defendant argues that the trial court erred in (1) denying its motion for judgment non obstante veredicto (n.o.v.), where the jury found that the plaintiff’s “contributory fault accounted for 60% of the proximate cause of his injury”; (2) failing to instruct the jury on the effect of a contributory fault verdict as mandated by section 2 — 1107.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2— 1107.1); (3) denying the defendant’s motion for a mistrial after the jury was granted access to examine and manipulate a table saw during a recess; (4) denying the defendant’s motion to strike the testimony of the plaintiff’s expert; and (5) allowing the jury to consider damages for future medical expenses.

The plaintiff filed his complaint on September 14, 1990, against Emerson Electric Company, and Sears, Roebuck and Company, alleging product liability, negligence, and breach of implied warranties for injuries sustained to the plaintiff’s hand while he was using a table saw. The saw was manufactured by Emerson Electric Company, and the plaintiff purchased it from Sears, Roebuck and Company on November 15, 1989.

The defendants were granted leave to file affirmative defenses. They alleged therein assumption of risk and misuse of the product. Specifically, the defendants alleged that the plaintiff’s assumption of risk and/or misuse of the product accounted for more than 50% of the proximate cause of his injuries, thereby barring the plaintiff from recovery.

The matter proceeded to jury trial on April 24, 1992. By the time of commencement of trial, the plaintiff had dismissed the negligence allegations. There remained only a product liability action against Emerson Electric Company, and an action against Sears, Roebuck and Company under an implied warranty theory.

After closing arguments, the trial court instructed the jury. Two of the jury instructions dealt with assumption of risk; these were plaintiff’s instructions numbered 20 and 21. Instruction No. 20 provided, in part, as follows:

“Plaintiff’s assumption of the risk, if any, does not bar his recovery. However, the total amount of damages to which he would otherwise be entitled is reduced in proportion to the amount of his fault in assuming the risk. This is known as comparative fault.”

Plaintiff’s instruction No. 21 provided the method by which the jury was to reduce a verdict in the event it found that the plaintiff assumed the risk of his injuries. The jury was instructed as follows:

“Second, determine what portion of [sic] percentage is attributable solely to the plaintiff’s conduct in assuming the risk, considering the extent to which plaintiff’s assumption of the risk and the unreasonably dangerous condition of the table saw each proximately contributed to the plaintiff’s injury.
Third, reduce the total amount of plaintiff’s damages by the proportion or percentage of plaintiff’s assumption of the risk. The resulting amount, after making such reduction, will be the amount of your verdict.”

The jury was also provided with two verdict forms prepared by the plaintiff. Verdict form A was to be used in the event of a verdict in favor of the plaintiff and against any of the defendants. Verdict form A provided a formula by which the jury was to calculate a verdict and any reduction in the verdict for the plaintiff’s assumption of risk. Form A allowed the jury to reduce the total award by the “percentage attributable solely to the plaintiff’s assumption of the risk that was the proximate cause of the plaintiff’s injury.”

The jury returned a verdict in favor of the plaintiff and against Emerson Electric Company. The jury found the plaintiff’s damages were $200,000. Also the jury found that the plaintiff’s assumption of risk constituted 60% of the proximate cause of his injuries. Using form A, the jury reduced the verdict by 60% to $80,000. The jury found Sears, Roebuck and Company not liable, and there is no appeal taken from that verdict.

The defendant, Emerson Electric Company, filed a post-trial motion arguing, in part, that it was entitled to a judgment n.o.v. pursuant to section 2 — 1116 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1116), since the jury had found that the plaintiff’s assumption of risk accounted for 60% of the proximate cause of his injuries. -In the alternative, the defendant asserted that the jury’s verdict should be set aside and a new trial granted because the trial court had failed to instruct the jury about contributory fault, as mandated by section 2 — 1107.1 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1107.1). The court refused to grant these portions of the defendant’s post-trial motion. The defendant timely appealed.

Section 2 — 1116 abolished the pure comparative negligence system adopted by the Illinois Supreme Court in Alvis v. Ribar (1981), 85 Ill. 2d 1, 27, and replaced it with a modified comparative negligence regime. (Ill. Ann. Stat., ch. 110, par. 2 — 1116, Historical & Practice Notes, at 120 (Smith-Hurd Supp. 1992).) Under section 2 — 1116, the plaintiff is barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury. (See Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1116.) However, if the contributory fault of the plaintiff is not more than 50% of the proximate cause of the injury, any damages allowed are diminished in the proportion to the amount of fault attributable to the plaintiff. (See Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1116.) Neither section 2 — 1116 nor any other relevant section defines the meaning of “contributory fault,” and there is no case law directly addressing whether the concept of “contributory fault” as used in section 2 — 1116 applies equally for findings that a plaintiff assumed the risk of his injury.

In a case decided under the pure comparative negligence system, before the adoption of our present modified comparative negligence system, the court in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 119, held that assumption of risk would not bar recovery in a strict liability case, but that a recovery would be merely reduced by the amount that the trier of fact finds the plaintiff to be at fault. Thus there, under the pure comparative negligence system, assumption of risk was treated as contributory fault.

In determining if the legislature intended to treat assumption of risk the same as contributory fault under section 2 — 1116, we note that the senator offering the modified comparative negligence amendment to fellow legislators described section 2 — 1116 as the same kind of law that was in effect in Wisconsin. (See Comment, Modified Contributory Fault & Strict Products Liability: Illinois’ Silent Disposal of Misuse & Assumption of Risk Turns Back the Evolution, 23 J. Marshall L. Rev. 247, 265 nn.119 & 120 (1990).) The Wisconsin Supreme Court interpreted their comparable statute to include assumption of risk, and other similar modified comparative negligence statutes and court decisions from other States indicate a trend toward abolishing the distinctions between different types of fault in the context of negligence verdict setoffs. Comment, 23 J. Marshall L. Rev., at 265 n.122, 268, citing Powers v. Hunt-Wesson Foods, Inc. (1974), 64 Wis. 2d 532, 535-36, 219 N.W.2d 393, 395.

We find that in enacting section 2 — 1116 it was the intent of the legislature to include findings of assumption of risk as a type of contributory fault. Accordingly, we must determine if the court erred in failing to grant the motion for a judgment n.o.v. after the jury found that the plaintiff was 60% at fault due to his assumption of risk.

Section 2 — 1107.1 states in pertinent part:

“In all actions on account of bodily injury *** based on *** product liability *** the court shall instruct the jury in writing that the defendant shall be found not liable if the jury finds that the contributory fault of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 110, par. 2-1107.1.

Unless the context of a statute or the intent of the legislature indicates to the contrary, the word “shall” in a statutory provision is to be considered mandatory. (See People v. Youngbey (1980), 82 Ill. 2d 556, 562.) Here, we find no such contrary intent or context indicating that the word “shall” has a discretionary meaning in section 2 — 1107.1. See also Ill. Ann. Stat., ch. 110, par. 2 — 1107.1, Historical & Practice Notes, at 106 (Smith-Hurd Supp. 1992) (“this section puts the onus of giving the instruction on the court”).

We find that the clear legislative intent of section 2 — 1107.1 is to notify the jury of the effect of its determination of apportionment of contributory fault, notwithstanding the failure of the parties to request that the jury be so instructed. The legislation demonstrated its intent that the giving of that instruction was necessary for the receipt of a proper verdict. Here, neither party submitted to the court the instruction contained in section 2— 1107.1. Nor did the defendant object to its absence. While we do not condone the defendant’s failure to object to the absence of the instruction, we find that in the absence of the section 2 — 1107.1 instruction, the verdict cannot stand.

For the above reasons, we need not address the other issues raised by the parties on appeal. We reverse judgment of the circuit court of Kane County and remand the cause for a new trial.

Reversed and remanded.

INGLIS, P.J., and DOYLE, J., concur.


author: JUSTICE DOYLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. RENATO TORRES, Defendant-Appellee.
    Second District
    No. 2 — 91—1342
    Opinion filed May 5, 1993.

      David R. Akemann, State’s Attorney, of Geneva (William L. Browers and Lisa Anne Hoffman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Fred M. Morelli, Jr., of Law Offices of Morelli & Cook, of Aurora, and Vincent C. Argento, of Law Offices of Vincent C. Argento, of Elgin, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Renato Torres, was indicted by the Kane County grand jury on charges of unlawful possession of a controlled substance and unlawful possession of a controlled substance with intent to deliver, in violation of sections 401 and 402(c) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. SGVa, pars. 1401, 1402(c)), respectively. Defendant was also charged with unlawful use of weapons, in violation of section 24 — 1(a)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 24 — 1(a)(4)), and armed violence, in violation of section 33A — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 33A — 2).

Defendant filed a motion to dismiss the indictment based upon the trial court’s inherent authority to dismiss an indictment in a criminal case where there has been a clear denial of due process. (See People v. Lawson (1977), 67 Ill. 2d 449, 455.) The trial court dismissed the indictment based upon the State’s failure to present exculpatory information to the grand jury. The State filed a timely appeal from the order of dismissal pursuant to Supreme Court Rule 604(aXl) (134 Ill. 2d R. 604(aXl)). (See also People v. Marbly (1980), 85 Ill. App. 3d 935, 937.) The sole issue is whether the trial court erred in dismissing the indictment based on the State’s failure to present exculpatory evidence to the grand jury.

On April 27, 1991, defendant was the passenger in a vehicle driven by Ruben B. Fonseca. The police stopped this vehicle and recovered from its interior several items, including a .357 Magnum handgun, another pistol and approximately eight grams of cocaine. Both defendant and Fonseca were arrested. At the time of his arrest Fonseca told police that the drugs and guns were his and that defendant was unaware of the presence of these items in the car. Fonseca also told police that he had picked up defendant five minutes before their car was stopped.

On April 29, 1991, Fonseca gave a taped statement to defense counsel in which he stated that he had truthfully told police that the guns and drugs were his and that defendant had no knowledge that they were in the car. Fonseca’s statements regarding defendant were not presented to the grand jury which indicted both Fonseca and defendant on May 14, 1991. Defendant moved to dismiss the indictment because of the State’s failure to present Fonseca’s statements to the grand jury.

The trial court granted defendant’s motion to dismiss holding:

“It is clear that the [Sjtate has an ongoing obligation to present exculpatory information to the [gjrand [jjury or [sic] that the [Sjtate has knowledge of that information at the time the indictment is sought.
The State failed to do so in this case.”

The State contends that the trial court erred in dismissing the indictment, admitting that although a court can dismiss an indictment in some cases based upon prosecutorial misconduct, there was no such misconduct in this case. Defendant responds that the trial court’s dismissal of the indictment was proper and that requiring the State to present exculpatory evidence to the grand jury will prevent “egregious prosecutorial misconduct” while providing a check on the prosecutor’s control over grand jury proceedings.

A defendant may not challenge the adequacy and sufficiency of the evidence underlying an indictment (People v. Creque (1978), 72 Ill. 2d 515, 527), except where there is absolutely no evidence connecting the accused to the offense charged. (See People v. Rodgers (1982), 92 Ill. 2d 283, 290; People v. Young (1991), 220 Ill. App. 3d 488, 493; People v. Wolfe (1983), 114 Ill. App. 3d 841, 845 (it is unnecessary to present the grand jury with evidence as to each element of the offense charged as long as there is some evidence relative to that charge).) An indictment returned by a legally constituted grand jury is presumed valid and is sufficient to justify trial of the charges on the merits. (People v. Hirsch (1991), 221 Ill. App. 3d 772, 779.) Guilt or innocence is to be determined at trial. Creque, 72 Ill. 2d at 527.

Although, as a general rule, a defendant may not challenge the validity of an indictment returned by a legally constituted grand jury, courts in Illinois have recognized certain exceptions. (Rodgers, 92 Ill. 2d at 287; Wolfe, 114 Ill. App. 3d at 844.) In particular, the Illinois Supreme Court has recognized “that a trial court [has] *** inherent authority to dismiss an indictment in a criminal case where there has been a clear denial of due process.” (Lawson, 67 Ill. 2d at 455.) However, this power should be used with great restraint and only exercised when a violation is clear and can be ascertained with certainty. (People v. Barton (1989), 190 Ill. App. 3d 701, 708.) The mere possibility of injustice is not enough. {People v. Consago (1988), 170 Ill. App. 3d 982, 989.) “To support a claim of denial of due process to sustain a dismissal of a grand jury indictment, a defendant must show both actual and substantial prejudice.” (Consago, 170 Ill. App. 3d at 989.) The burden of proving such prejudice is on the defendant. See People v. DeSavieu (1983), 120 Ill. App. 3d 420, 432.

Prosecutorial misconduct may warrant dismissal of an indictment where a defendant’s due process rights are violated such that his right to a fair trial is prejudiced or where the prosecutor’s conduct in some way undermines the integrity of the judicial process as manifested in grand jury proceedings. (People v. J.H. (1990), 136 Ill. 2d 1, 12-13.) “Some cases suggest the latter may occur where a prosecutor deliberately or intentionally misleads the grand jury to the prejudice of the defendant.” (Emphasis in original.) J.H., 136 Ill. 2d at 13, discussing Bank of Nova Scotia v. United States (1988), 487 U.S. 250, 261, 101 L. Ed. 2d 228, 241, 108 S. Ct. 2369, 2377; Creque, 72 Ill. 2d at 523-24; Barton, 190 Ill. App. 3d at 709.

We find no Illinois case which supports the position of the trial court by recognizing “that the [S]tate has an ongoing obligation to present exculpatory information to the [g]rand Q]ury.” Rather, quite the opposite appears to be the case. (See Consago, 170 Ill. App. 3d at 989 (“There is no burden on the State to present all available evidence to the grand jury”); People v. Boyle (1987), 161 Ill. App. 3d 1054, 1063-64; Wolfe, 114 Ill. App. 3d at 846 (“[T]he prosecutor is under no duty to inform the grand jurors of the existence of additional or more direct evidence”).) In rejecting the argument that district courts are empowered to impose a rule requiring Federal prosecutors to present to the grand jury “substantial exculpatory evidence” in the prosecutor’s possession, the United States Supreme Court has commented: “requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury’s historical role, transforming it from an accusatory to an adjudicatory body.” United States v. Williams (1992), 504 U.S. 36, 51, 118 L. Ed. 2d 352, 368, 112 S. Ct. 1735, 1744.

Although the State has no general duty to present exculpatory evidence to the grand jury, we recognize the possibility that, under certain circumstances, a prosecutor’s intentional withholding of such evidence could result in a denial of a defendant’s right to due process. For example, Illinois has recognized that a defendant’s right to due process is violated where he or she is forced to stand trial on an indictment which the government knows is based on material, perjured testimony (Creque, 72 Ill. 2d at 524, citing United States v. Basurto (9th Cir. 1974), 497 F.2d 781, 785-86; Wolfe, 114 Ill. App. 3d at 845), or if the grand jury is deliberately or intentionally misled by the prosecution (Barton, 190 Ill. App. 3d at 709). We believe that the factual scenario in which a failure to present exculpatory evidence to the grand jury results in “a clear denial of due process,” and “causes actual and substantial prejudice to the defendant,” can be appropriately remedied through the existing protections from prosecutorial misconduct, and we see no compelling reason to create a separate duty requiring the State to present exculpatory evidence during the grand jury proceedings.

We conclude that defendant has made no showing of any deliberate deception of the grand jury or other evidence of bad faith on the part of the prosecutor in this case. It would be mere speculation to assume that the alleged exculpatory evidence would necessarily have been admissible at trial. In any event, Fonseca’s statements were not evidence of such a degree or character as would have absolutely prevented defendant’s indictment. The fact that the grand jury might have chosen not to indict defendant if Fonseca’s statements had been presented is not enough. Defendant does not satisfy his burden to establish clearly “actual and substantial prejudice” merely by demonstrating the possibility of avoiding indictment. See Consago, 170 Ill. App. 3d at 989.

To require the State to present all exculpatory evidence it possesses to the grand jury when seeking an indictment might, as a practical matter, make it necessary for the State to counter with all available inculpatory evidence. Illinois has clearly rejected such rules which could transform the grand jury proceeding into a kind of preliminary trial. (See Creque, 72 Ill. 2d at 527-28, citing Costello v. United States (1956), 350 U.S. 359, 363, 100 L. Ed. 397, 402, 76 S. Ct. 406, 408; United States v. Dionisio (1973), 410 U.S. 1, 17, 35 L. Ed. 2d 67, 81, 93 S. Ct. 764, 773.) Moreover, the inevitable expansion of the grand jury proceeding which would result by adopting the rule the trial court applied in its order would frustrate the grand jury’s desired and critical purpose of promptly determining probable cause. See People v. Franklin (1979), 80 Ill. App. 3d 128,131.

For the foregoing reasons, we reverse the order of the circuit court of Kane County dismissing the indictment and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

INGLIS, P.J., and GEIGER, J., concur.