text:
    VINNIE F. ABDO et al., Plaintiffs-Appellants, v. TREK TRANSPORTATION COMPANY, INC., et al., Defendants (Forgings & Stampings, Inc., Defendant-Appellee).
    Second District
    Nos. 2 — 91—0009, 2 — 91—0306 cons.
    Opinion filed November 20, 1991.

      Robert H. Clark and Janet Clark Holmgren, both of Clark, McGreevy & Johnson, P.C., of Rockford, for appellant.
    Clayton L. Lindsey, of Thomas & Hinshaw, Culbertson, and Stephen E. Balogh and James P. Devine, both of Williams & McCarthy, P.C., both of Rockford, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Vinnie F. Abdo, individually, and as special administrator of the estate of her husband, Jamal A. Abdo, and for the use and benefit of both herself and their children, appeals the judgment of the circuit court dismissing with prejudice those counts of her amended complaint against defendant, Forgings & Stampings, Inc. (F&S), for failure to state a cause of action for negligence. Plaintiff alleged that F&S, as the owner of certain commercial property, had the duty to insure that deliveries to and pickups from its facility were made in a safe manner and had breached that duty, which re-suited in the death of plaintiffs husband. The circuit court found that F&S had no such duty and dismissed those counts of plaintiff’s complaint that related to F&S. We affirm.

Between 4:50 and 5 a.m. on May 22, 1990, plaintiff’s decedent was killed when his car struck and went under a semitractor and flatbed trailer (semitruck), which was stopped across 23d Avenue. Defendants, Trek Transportation Company, Inc., Charles H. Rex and Ronald Robnett were the owner, lessee, and operator of the semitruck, respectively, and are not concerned with this appeal. F&S’ property, which was a commercial facility, was located on the north side of 23d Avenue, across from the “T” intersection of Seventh Street with 23d Avenue. F&S’ sole driveway and dock were located to the east of its building, which was also just east of and across from Seventh Street. The semitruck carrying a delivery for F&S had traveled west on 23d Avenue and then, through a series of maneuvers, backed across 23d Avenue so that it was facing south with its trailer backed into F&S’ driveway and dock. Thus positioned, the semitruck then stopped and entirely blocked both the west and eastbound lanes of 23d Avenue. Plaintiff’s decedent was traveling east on 23d Avenue at the time of the collision with the stopped semitruck.

Plaintiff alleged that F&S routinely used 23d Avenue for the ingress and egress of trucks to F&S’ driveway and dock to make pickups and deliveries and that F&S had instructed trucks to use 23d Avenue for such purposes. Specifically, plaintiff alleged that F&S was negligent in failing to illuminate its loading dock, placing materials in its driveway that obstructed and impeded the driver’s attempts to enter the loading dock, failing to provide warning lights or signals for oncoming traffic when a truck blocked 23d Avenue, locating its driveway too close to the intersection with Seventh Street, failing to provide alternate means of ingress and egress for trucks to its property, causing and requiring trucks to violate State traffic statutes to gain entrance to its property, and failing to instruct its employees to stop traffic when 23d Avenue was blocked.

F&S moved for dismissal of the counts against it pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, eh. 110, par. 2 — 615) for failing to state a cause of action because F&S had no duty to plaintiff’s decedent. The circuit court granted F&S’ motion, but allowed plaintiff to amend her complaint. F&S again moved to dismiss the counts of plaintiff’s amended complaint that sought recovery from F&S based on its alleged duty as a landowner, which the circuit court again granted finding that there was “no just reason to delay enforcement or appeal” pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). Subsequent to plaintiff’s filing her notice of appeal, the other defendants moved to vacate the court’s order, which was denied. Plaintiff filed a second notice of appeal to insure our jurisdiction, which resulted in this consolidated appeal.

On a motion to dismiss, all well-pleaded facts must be regarded as true and all reasonable inferences drawn in favor of the plaintiff. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 505; Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 217.) However, conclusions contained in the challenged pleadings will not be taken as true unless supported by specific factual allegations. (Burdinie, 139 Ill. 2d at 504-05.) Only if it clearly appears that no set of facts can be proved that will entitle plaintiff to prevail should a complaint be dismissed. Anderson v. Marquette National Bank (1987), 164 Ill. App. 3d 626, 627-28.

The principles that guide our consideration of this appeal have been often stated. Common-law negligence consists of a duty flowing from the defendant to the plaintiff, breach of that duty, and proximate cause of an injury to the plaintiff. (Gouge v. Central Illinois Public Service Co. (1991), 14.4 Ill. 2d 535, 542; Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 45; Simmons v. Aldi-Brenner Co. (1987), 162 Ill. App. 3d 238, 241.) The question of whether a legal duty exists is a question of law to be decided by the court. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525; Beal v. Kuptchian (1987), 164 Ill. App. 3d 191, 193.) If no duty exists, no recovery is possible as a matter of law. (Ziemba, 142 Ill. 2d at 45; Beal, 164 Ill. App. 3d at 193.) Both legal and social policies, including the foreseeability and likelihood of the injury and the magnitude and consequence of the burden to protect against such injury, must be weighed in determining if a legal duty exists. Kirk, 117 Ill. 2d 507; Lance v. Senior (1967), 36 Ill. 2d 516, 518; Erne v. Peace (1987), 164 Ill. App. 3d 420, 423.

Our supreme court has very recently twice addressed the question of the duty of a property owner to those using an adjacent highway. (See Gouge, 144 Ill. 2d at 540-41 (defendant owner of utility pole located on land adjacent to roadway); Ziemba, 142 Ill. 2d at 45.) In each instance, the court first focused on the reasonable foreseeability of the injury in determining whether to impose a duty upon the property owner. (See Gouge, 144 Ill. 2d at 544; Ziemba, 142 Ill. 2d at 49.) Thus, our inquiry as well first focuses on whether it was reasonably foreseeable that the defendant truck driver would stop his vehicle entirely blocking both lanes of traffic without lights or other warnings.

Our discussion of a landowner’s duty toward travelers on adjacent roadways must begin with section 368 of the Restatement (Second) of Torts (Restatement (Second) of Torts §368 (1965)), which has guided Illinois courts considering such issues. (Ziemba, 142 Ill. 2d at 48.) Section 368 provides:

“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who
(a) are traveling on the highway, or
(b) fórese eably deviate from it in the ordinary course of travel.” (Restatement (Second) of Torts §368, at 268 (1965).)

Two corollaries to this rule are urged by plaintiff as important to our consideration of the issue herein raised. The first is that an owner of a premises owes a duty to an invitee to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the invitation. (Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 87; Altepeter v. Virgil State Bank (1952), 345 Ill. App. 585, 598.) Second, such owner further has a duty to provide an invitee with a reasonably safe means of ingress and egress within and, depending on the particular facts of the case, beyond the precise boundaries of such premises. Swett, 169 Ill. App. 3d at 87; McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App. 3d 345, 351; Cooley v. Makse (1964), 46 Ill. App. 2d 25, 30-31.

However, plaintiff’s decedent was not injured as a result of contact with an artificial condition on F&S property near the highway so as to fall within the landowner’s duty imposed by the Restatement (Second) of Torts. Nor was he an invitee of F&S so as to benefit from a duty imposed on F&S to provide safe means of ingress and egress. Thus, we find these cases urged by plaintiff inapposite.

Rather, plaintiff seeks to impose on F&S a duty to insure that F&S’ invitees utilize the provided means of ingress and egress in a reasonably safe manner. But this addresses not the foreseeability of an injury resulting from a condition of a landowner’s property, but rather resulting from the alleged negligent actions of another.

Thus, defendant owed plaintiff’s decedent a duty only if it was reasonably foreseeable that a truck driver would violate his statutory duties when backing into defendant’s driveway and dock. (See Ziemba, 142 Ill. 2d at 49.) Plaintiff urges us to follow the 32-year-old decision of the Appellate Court, Third District, in Kubala v. Dudlow (1958), 17 Ill. App. 2d 463. However, the supreme court in Ziemba expressly distinguished Kubala. (Ziemba, 142 Ill. 2d at 49-50.) Kubala concerned the duty of the defendant landowner to the plaintiff driver, who was injured when his car left the roadway and struck unmarked concrete posts placed by the defendant on his property near a curve in the road. (Kubala, 17 Ill. App. 2d at 465.) In distinguishing Kubala, the supreme court noted that the unmarked concrete posts alone in Kubala were dangerous to the plaintiff driver. (Ziemba, 142 Ill. 2d at 49-50.) However, in Ziemba, the condition of the driveway became “dangerous, if at all, only by the addition of a vehicle.” Ziemba, 142 Ill. 2d at 49-50.

In Ziemba, the plaintiff, who was riding a bicycle on a roadway adjacent to the defendant landowner’s property, was injured when a dump truck exited the defendant landowner’s driveway without warning and failed to yield the right of way to traffic on the roadway. (Ziemba, 142 Ill. 2d at 49-50.) The plaintiff alleged that the defendant landowner owed the plaintiff a duty to exercise “reasonable care in the conduct of activities on his property, so as not to cause damage or injury to persons on the adjacent roadway” and that the landowner had breached such duty by permitting vehicles to use his driveway without warning to those using the adjacent roadway and by allowing foliage to obscure the visibility of his driveway from the roadway. (Ziemba, 142 Ill. 2d at 46.) However, the plaintiff did not allege that the foliage obstructed the truck driver’s ability to see oncoming traffic. Ziemba, 142 Ill. 2d at 50.

Our supreme court found that the condition of the plaintiff landowner’s property was not dangerous absent the intervening negligence of the truck driver. (Ziemba, 142 Ill. 2d at 50.) In rejecting the reasoning of the appellate court finding a duty owed by the defendant landowner to the injured plaintiff, our supreme court found that the question of foreseeability pertained not to the foreseeability of the plaintiff’s injury, but rather to the foreseeability of the codefendant truck driver’s alleged negligence. (Ziemba, 142 Ill. 2d at 49, 50.) Such negligence was not reasonably foreseeable because property owners have the right to expect that drivers will not violate their statutory duties, and “ ‘[property] owner[s] cannot control and [have] no right to control the drivers of *** vehicles’ ” entering and leaving their property. Ziemba, 142 Ill. 2d at 52, quoting Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1054.

However, plaintiff alleges that F&S caused and required the truck driver to violate his statutory duties to gain entrance to F&S’ facility. Most of such statutory violations are alleged by plaintiff in conclusory fashion, which we do not consider. (Burdinie, 139 Ill. 2d at 504-05.) We further note that plaintiff has failed to quote fully many of those provisions that form the basis of such conclusions and, further, that a complete reading of the provisions indicates that many are inapplicable to the truck driver’s conduct in this instance. See, e.g., Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 1301 (“Stopping, standing or parking outside of a business or residence district”).

Notwithstanding such omissions, however, certain facts alleged support an inference that the driver’s breach of his statutory duties was a foreseeable result of the alleged condition of F&S’ property. Specifically, plaintiff alleges that the truck driver backed the semi-truck in a manner that was unsafe and that interfered with other traffic in violation of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 1402(a)). Further, plaintiff alleged that the location and narrow width of F&S’ driveway and F&S’ placement of materials in its loading dock both impeded and lengthened the driver’s attempts to back into F&S’ loading dock, thereby resulting in the truck driver’s obstruction of traffic. Construing such allegations most strongly in favor of plaintiff, the driver’s alleged violation of his statutory duty not to obstruct traffic was a reasonably foreseeable consequence of the configuration of F&S’ driveway and the materials there placed.

However, our inquiry is not ended because we must still weigh the foreseeability that a condition of F&S’ property would result in plaintiff’s decedent’s injury against the additional factors of the likelihood of such result, as well as the burden and consequence of imposing a duty upon F&S to guard against the intervening negligence of a truck driver. A landowner’s duty to those using an adjacent highway arises only by virtue of his status as a landowner and the underlying rationale that a landowner is in the best position to prevent the injury. (Ziemba, 142 Ill. 2d at 53.) However, when a third party is in the best position to prevent a plaintiff’s injury, there is no justification for imposing liability upon a landowner. (Ziemba, 142 Ill. 2d at 53.) Further, as the court recognized in Ziemba, “[ejven if [it] were to find it was reasonably foreseeable that the condition on defendant’s land would result in this type of accident, *** ‘[the] imposition of a general duty to anticipate and guard against the negligence of others would place an intolerable burden on society.’ ” (Ziemba, 142 Ill. 2d at 52, quoting Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 366.) Thus, we must consider both whether F&S was in the best position to prevent plaintiff’s decedent’s injury and whether imposition of such duty upon F&S would place “an intolerable burden on society.” See Ziemba, 142 Ill. 2d at 52.

In both this instance and Ziemba, the complained-of injuries were the result of the alleged negligence of an intervening third party in the form of a truck driver. So, too, in this instance, just as in Ziemba, F&S had neither the right nor ability to control the truck driver’s conduct. The truck driver’s ability and experience were traits particular to the individual driver, which affected not only the duration of his efforts to back the semitruck into F&S’ driveway and dock but also his eventual accomplishment or failure of such task. Such individual traits were clearly not within F&S’ control. The truck driver’s decision to stop the truck across the road as alleged by plaintiff, rather than either completely backing into the dock or terminating the delivery, was not within F&S’ control. F&S did not control the decision as to the type or length of the truck to be used to make the delivery, nor the use and/or maintenance of its reflective markings. The trucking company and truck driver, rather than F&S, were in the best position to prevent plaintiff’s decedent’s injury.

Finally, the instant facts confirm the soundness of the policy of not imposing a general duty to guard against the negligence of others. Plaintiff alleged that F&S directed and required deliveries to be made at its driveway and dock and essentially alleged that the mere provision of a driveway creates a duty to insure that it is used in a manner that will not cause injury to others. Almost all commercial facilities receive and/or ship deliveries, and further such deliveries are frequently made by a truck that must be backed into or out of a driveway or dock. Such maneuvers frequently “obstruct” traffic, although in varying degrees and durations. However, such maneuvers are further “a matter of common knowledge” and over which the property owner has little control and for which the property owner should not be liable. See Ziemba, 142 Ill. 2d at 52; Zimmermann, 122 Ill. App. 3d at 1054.

Thus, although the truck driver’s alleged intervening negligence was a reasonably foreseeable consequence of the condition of F&S’ property, F&S owed no duty to plaintiff’s decedent to guard against such alleged negligence, and, therefore, plaintiff failed as a matter of law to state a cause of action sounding in negligence against F&S.

We affirm the trial court’s dismissal of those counts of plaintiff’s complaint that alleged negligence against F&S.

Affirmed.

REINHARD, P.J., and BOWMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    ALL STEEL, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Lloyd Daniels, Appellee).
    Second District (Industrial Commission Division)
    No. 2 — 90—1360WC
    Opinion filed November 20, 1991.

      Francis M. Discipio, of Chicago, for appellant.
    John J. Castaneda and Kim Edward Presbrey, both of Presbrey/Presbrey & Swearingen, Ltd., of Aurora, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The petitioner, Lloyd Daniels, filed a workers’ compensation claim against the respondent, All Steel, Inc. The arbitrator ruled that the petitioner had failed to prove that his injuries arose out of and in the course of his employment and denied the claim. On review, the Industrial Commission (Commission) affirmed the decision. The circuit court held that the decision of the Commission was contrary to law and reversed and remanded the cause to the Commission with directions to determine and award benefits. The Commission subsequently determined the amount of benefits due. On review, the circuit court confirmed its original decision. The respondent appeals.

The relevant facts of this case are not in dispute. The record shows that on January 17, 1983, the petitioner was working as a grinder-sander for the respondent. The petitioner was working the second shift from 4 p.m. to 3 a.m. Since it was a cold day, during his lunch break he went to the parking lot to warm his car so he would not have trouble starting it when his shift ended. When he tried to start the car, he saw smoke escaping from the hood. Opening it and discovering flames, he then ran to the respondent’s building, entered it, and retrieved a fire extinguisher from inside. On his way back to the car, while still in the building, he slipped on melting snow near the doorway and fell on the concrete floor, injuring his knee. After falling, the petitioner continued to his car and extinguished the fire. He then returned to the building, reported the incident to his foreman, and worked the remainder of his shift. The next day he contacted his doctor and took the next available appointment, which was three days later. The petitioner underwent surgery on his knee approximately three weeks later.

The respondent argues on appeal that the circuit court erred in finding that the petitioner’s injury arose out of and in the course of his employment. Specifically, it contends that the petitioner was acting for his personal benefit when he attempted to start his car and was not furthering the respondent’s interests when the injury occurred.

An injury is compensable under the Workers’ Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) only if it arises out of and in the course of employment. (Panagos v. Industrial Comm’n (1988), 171 Ill. App. 3d 12, 524 N.E.2d 1018.) For an injury to arise out of one’s employment, it must have an origin in some risk connected with or incidental to the employment so there is a causal connection between the employment and the injury. (Fire King Oil Co. v. Industrial Comm’n (1976), 62 Ill. 2d 293, 342 N.E.2d 1.) An injury is in the course of employment when it occurs within the period of employment at a place where the employee can reasonably be expected to be in the performance of his duties and while he is performing those duties or something incidental thereto. (Panagos, 171 Ill. App. 3d at 15, 524 N.E.2d at 1020.) Injuries sustained by an employee while in the performance of reasonably necessary acts of personal comfort may be found to have occurred “in the course of” his employment. Chicago Extruded Metals v. Industrial Comm’n (1979), 77 Ill. 2d 81, 395 N.E.2d 569.

Initially, we find that the petitioner’s act of going to the parking lot to warm his car during his lunch break should be viewed as a reasonably necessary act of personal comfort which occurred “in the course of” his employment. In Material Service Corp. v. Industrial Comm’n (1973), 53 Ill. 2d 429, 292 N.E.2d 367, the supreme court found that it was clearly contemplated by the respondent corporation that its employees would venture to the parking lot to start and warm their cars during the lunch break when to do so would presumably serve to facilitate their departure from the premises at the end of the workday. That is also the case here.

The instant respondent nonetheless argues that once the petitioner’s car caught on fire and he attempted to put it out, his mission became purely personal. We find, however, that it was foreseeable that some employees attempting to start their cars might encounter problems necessitating their return to the respondent’s building. For example, if a car simply did not start, it would be reasonably foreseeable that the employee would return to the building to telephone a towing service or to ask someone to help jump start the car. Thus, this changed circumstance did not transform the petitioner’s mission into an entirely personal one outside the course of his employment. Instead, the mission was still related to facilitating his departure from the premises at the end of the workday.

Additionally, it is important to note that the petitioner was not injured as the result of the fire, but rather as the result of a fall at least facilitated by the presence of snow inside the respondent’s doorway. The respondent’s argument that the petitioner sustained his injury because he was in a hurry, even if true, ignores the presence of the snow on the cement floor inside the doorway. To prove causation, it is not incumbent upon the claimant to prove that the hazard to which he was exposed in the employment environment was the sole cause of the injury, or even the principal cause, only that it was “a” causative factor in the resulting injury. (Material Service Corp. v. Industrial Comm’n (1973), 53 Ill. 2d 429, 292 N.E.2d 367.) The uncontradicted testimony of the petitioner was that he fell on snow inside the respondent’s doorway. Thus, this condition was a causative factor in the petitioner’s injury.

Finally, the respondent relies on Fisher Body Division, General Motors Corp. v. Industrial Comm’n (1968), 40 Ill. 2d 514, 240 N.E.2d 694, in support of its argument that the instant petitioner’s actions were outside the course of his employment.

In Fisher, an employee was injured when, while using a company truck in an attempt to jump start his car, the car battery exploded. The supreme court found that the injury had not arisen out of and in the course of his employment. We find that Fisher is distinguishable from the instant case since in Fisher the employee was injured as the result of working on his car, not due to a condition of the employer’s premises as in the instant case.

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

Affirmed.

McCULLOUGH, P.J., and LEWIS, WOODWARD and RAKOWSKI, JJ., concur.


author: JUSTICE INGLIS

text:
    ROCKFORD DROP FORGE COMPANY, Appellant, v. THE POLLUTION CONTROL BOARD et al., Appellees.
    Second District
    No. 2 — 91—0342
    Opinion filed November 20, 1991.

      John W. France, Stephen E. Balogh, and Carl A. Ecklund, all of Williams & McCarthy, P.C., of Rockford, for petitioner.
    Roland W. Burris, Attorney General, and Ronald L. Schallawitz, of Environmental Protection Agency, both of Springfield, and Marvin I. Medintz, of Pollution Control Board, of Chicago (Carol J. Ludwig, Assistant Attorney General, of Chicago, of counsel), for respondents.
   JUSTICE INGLIS

delivered the opinion of the court:

Appellant, Rockford Drop Forge Company (Rockford), appeals from a final order of the Illinois Pollution Control Board (Board) denying Rockford reimbursement from the Underground Storage Tank Fund (Fund) (Ill. Rev. Stat. 1989, ch. ll11/2, par. 1022.13) for certain cleanup costs associated with an underground storage tank leak. The Board affirmed an earlier decision by the Illinois Environmental Protection Agency (IEPA). We have jurisdiction pursuant to section 41(a) of the Environmental Protection Act (Act) (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1041(a)). The sole issue for our review is which of two conflicting definitions for “underground storage tanks” (UST), both of which were in effect at the time, applied when the IEPA processed Rockford’s application for cleanup cost reimbursement from the Fund. For reasons set forth below, we affirm the Board’s decision denying Rockford reimbursement from the Fund.

Rockford owns two parcels of property which are separated by 9th Street, a public road owned by the City of Rockford. The west parcel contained 10 underground tanks installed sometime between 1925 and 1949. The tanks ranged in capacity from 20,500 to 22,000 gallons each. Rockford kept fuel oil in the tanks, using 85% to 90% of the oil to heat forge furnaces located in the forge shop on the east parcel. That oil was pumped through pipes underneath 9th Street to the forge shop. Rockford used 10% to 15% of the stored fuel for the operation of forklift trucks and other equipment.

Rockford registered the tanks with the Office of the State Fire Marshall (OSFM) on February 4, 1986, paying a $100 registration fee for each tank. Rockford was told by the OSFM representative that if the tanks were registered they would be covered by the UST Fund, which at the time was yet to be established. The OSFM representative said that Rockford’s tanks were UST’s as defined by the OSFM regulations and, therefore, within the meaning of the statutory UST program. Rockford was also informed that failure to register the tanks could subject the company to penalties.

In 1989 Rockford converted its forging operation from oil to natural gas. Rockford removed five of the oil tanks in October 1989 and then removed the remaining five tanks in November 1989. On October 3, 1989, Rockford discovered that one of the tanks had leaked. Rockford spent approximately $49,000 to clean up the area around the leak.

On January 3, 1990, Rockford filed an application with IEPA for cleanup cost reimbursement from the UST Fund. On January 12, 1990, IEPA denied Rockford’s application, stating:

“The definition of underground storage tank does not include any tank used for storing heating oil for consumptive use on the premises where stored. *** Since your tank held fuel oil that was consumed for process heating, your tank is exempt from the underground storage tank (UST) regulations according to the definition of an UST.”

Rockford requested reconsideration of IEPA’s decision. In a three-page letter to Rockford dated March 9, 1990, IEPA again stated that the 10 tanks were excluded from the UST Fund because the oil from the tanks was used for “consumptive use on the premises where stored.”

Rockford appealed IEPA’s decision to the Pollution Control Board. On December 20, 1990, the Board issued a written order upholding the reimbursement denial. Two of the Board’s seven members dissented.

The Board stated that the issue was whether Rockford’s tanks fell within the exclusion to the UST definition set forth in section 22.18(e)(1)(A) of the Act. At the time Rockford filed its application and the agency rendered its decision, section 22.18(e)(l)(A) provided that for purposes of the Act:

“The terms ‘petroleum’ and ‘underground storage tank’ shall have the meanings ascribed to them in Subtitle I of the Hazardous and Solid Waste Amendments of 1984 (P.L. 98 — 616), as amended, of the Resource Conservation and Recovery Act of 1976 [RCRA] (P.L. 94 — 580), as amended.” (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1022.18(e)(1)(A).)

RCRA defines the term “UST” as excluding any “tank used for storing heating oil for consumptive use on the premises where stored.” (42 U.S.C.A. §6991(l)(b) (West Supp. 1991).) Board regulations in effect at the time defined UST’s using identical language to that of section 6991(l)(b) of RCRA. (35 Ill. Adm. Code §731.112 (1989).) The Board stated that Rockford’s claim for reimbursement would turn on interpretation of the phrases “consumptive use” and “on the premises where stored.” Relying on explanations and definitions in the preamble to the relevant section of the Code of Federal Regulations (ERA Requirements for Owners and Operators of Underground Storage Tanks, 40 C.F.R. §280.12 (1989)), the Board found that the tanks fell within the explanation of “consumptive use” since the heating oil was consumed on site and not sold. The Board treated the 10% to 15% used to fuel forklifts as a de minimis amount which did not alter its conclusion.

The Board next determined whether the facts that the tanks were located on the west parcel and that the forging furnaces were located across 9th Street on the east parcel meant that the tanks were not used “on the premises where stored.” The Board invoked Eureka Co. v. Environmental Protection Agency (1979), PCB 98 — 117, where the Board was called upon to interpret the term “on-site.” In Eureka, the Board held that two or more pieces of property which are geographically contiguous and are divided by a public or private right-of-way are considered a single site. (Eureka (1979), PCB 98 — 117, at 2.) Similarly here, the Board concluded that the oil in Rockford’s tanks on the west parcel was for use “on the premises where stored,” even though the use occurred across 9th Street on the east parcel.

The Board was sympathetic to Rockford’s argument that it had in good faith registered the tanks with the OSFM and in fact had been assured by the OSFM that the tanks were UST’s as defined by OSFM regulations and therefore would be covered by the UST Fund. The Board recognized “the confusion encountered by Rockford as a result of the dual-implemented UST system.” The Board also recognized that section 22.18(e)(1)(A) of the Act now defines UST’s to include tanks such as Rockford’s because of a statutory amendment (Pub. Act 86 — 1050, eff. July 11, 1990). Public Act 86 — 1050 added the following language to section 22.18(e)(1)(A): “except that ‘underground storage tank’ shall include heating oil tanks greater than 1,100 gallons in capacity serving other than residential units.” Public Act 86 — 1050 also added identical language to the applicable OSFM statute (Ill. Rev. Stat. 1989, eh. 1271/2, par. 156(e)(1)). At the time of Rockford's application for reimbursement, however, an OSFM regulation provided that the definition for UST’s included all heating oil tanks greater than 1,100 gallons. (41 Ill. Adm. Code §170.400(jj)(l)(B) (1989).) So, while at the time of Rockford’s application for reimbursement the tanks were UST’s under OSFM regulations but not under IEPA statute, the tanks would now be considered UST’s under either OSFM or IEPA statute. While sympathetic to Rockford’s predicament, the Board concluded that Rockford’s tanks were exempt from UST Fund coverage because the IEPA statute and regulations in effect at the time excluded Rockford’s tanks from the definition of UST’s.

Two members of the Board filed a dissenting opinion which argued that Rockford should be granted reimbursement from the UST Fund because Rockford had in good faith complied with OSFM regulations and because of the conflicting UST definitions. The dissenting opinion concluded:

“We in government need to make every effort to avoid a situation such as this, where persons place reliance on a system that borders on the irrational. It does not serve the purposes of achieving a clean environment that persons who voluntarily comply are ‘led down the garden path’ in this manner.”

On January 29, 1991, Rockford filed a motion for reconsideration with the Board. In a written opinion issued on February 28, 1991, the Board briefly reiterated the reasons for the reimbursement denial. The Board also reviewed the division of authority between IEPA and the OSFM regarding the UST statutory scheme, stating that OSFM’s role is limited to the precorrective stage after which IEPA becomes the lead State agency. The Board concluded that while the OSFM may adopt a regulation defining UST for UST registration purposes, the IEPA is not bound by the definition. Instead, IEPA must adhere to the Environmental Protection Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1001 et seq.) and regulations adopted thereunder when processing an application for reimbursement from the UST Fund. Rockford made a timely appeal.

We begin our analysis by noting that this court will uphold a quasi-judicial act of the Board unless it is contrary to the manifest weight of the evidence. (Environmental Protection Agency v. Pollution Control Board (1981), 86 Ill. 2d 390, 402; see Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 1030.) However, our deference to the Board is muted somewhat since this case will turn on statutory interpretation. “[T]he interpretation placed on a statute by the agency charged with its administration and enforcement, while not binding [citation], is generally accorded deference by the courts.” City of Burbank v. Illinois State Labor Relations Board (1989), 128 Ill. 2d 335, 345.

Rockford first contends that the plain language of section 22.18b of the Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1022.18b), which governs disbursements from the UST Fund, compels reversal of the reimbursement denial. Alternatively, Rockford argues that if there is a true conflict between the OSFM and IEPA definitions of a UST, then the company should be reimbursed from the UST Fund under principles of fundamental fairness. The State argues that the Board and IEPA properly denied Rockford reimbursement because, at the time of Rockford’s application, the tanks did not fall within the Act’s definition of a UST.

At the outset, we take notice of the complexity of the UST statutory scheme and are reminded of the words of Judge Learned Hand, written over 40 years ago:

“Much of the law is now *** difficult to fathom, and more and more of it is likely to be so; for there is little doubt that we are entering a period of increasingly detailed regulation, and it will be the duty of judges to tread the path — for path there is — through these fantastic labyrinths.” Hand, “Thomas Walter Swan,” 57 Yale L.J. 167, 169 (1947).

Rockford contends that the starting point for analysis of this appeal is section 22.18b(a) of the Act, which states:

“(a) An owner or operator is eligible to receive money from the Underground Storage Tank Fund for costs of corrective action or indemnification only if all of the following requirements are satisfied:
(1) Neither the owner nor operator of the underground storage tank is the United States Government;
(2) The underground storage tank does not contain fuel which is exempt from the provisions of Section 2a of The Motor Fuel Tax Law [Ill. Rev. Stat. 1989, ch. 120, par. 418a];
(3) The costs of corrective action or indemnification were incurred by an owner or operator as a result of a release of petroleum, but not including any hazardous substance, from an underground storage tank;
(4) The owner or operator has registered the tank in accordance with Section 4 of ‘An Act to regulate the storage, transportation, sale and use of gasoline, volatile oils and other regulated substances’, approved June 28, 1919 [Ill. Rev. Stat. 1989, ch. 1271/2, par. 156], and paid into the Underground Storage Tank Fund all fees required for the tank in accordance with Sections 4 and 5 of such Act [Ill. Rev. Stat. 1989, ch. 1271/2, par. 157] and regulations adopted by the Office of State Fire Marshal;
(5) For costs of indemnification, in addition to items (1) through (4), the provisions of subsection (e) have been met.” (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1022.18b(a).)

Rockford argues that it satisfied all the requirements listed in section 22.18b(a) and is thus “eligible to receive money” from the UST Fund. We, however, believe the proper starting point for analysis is to determine which definition applies to the phrase “underground storage tank” as it is used in that section, that of the OSFM or IEPA. This is the crucial inquiry because Rockford has conceded that its tanks would not fall within the IEPA definition of a UST that was in effect at the time of Rockford’s application for reimbursement.

Saving equity considerations for later, we note that section 22.12(a) of the Act provides that “[t]he [IEPA] shall act as the lead agency in the formulation of regulations and policies” concerning the UST program. (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1022.12(a).) As we noted earlier, section 22.18(e)(l)(A) defines UST by referencing RCRA (42 U.S.C.A. §6901 et seq. (West Supp. 1983)). RCRA in turn defines UST as excluding any “tank used for storing heating oil for consumptive use on the premises where stored.” (42 U.S.C.A. §6991(l)(b) (West Supp. 1991).) We believe that it would be illogical for IEPA to apply a UST definition drawn from OSFM regulations, when the phrase is plainly defined by statute in section 22.18(e)(l)(A.) of the Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1022.18(e)(1)(A)), two sections prior to the reimbursement section. We are equally puzzled by the fact that section 4(e)(1) of the OSFM statute (Ill. Rev. Stat. 1989, ch. 1271/2, par. 156(e)(l)) is identical to that of section 22.18(e)(1)(A) of the Act, which we believe draws into serious question the validity of the contrary OSFM regulations (41 Ill. Adm. Code §§170.400(jj)(l)(B), 171.71(d) (1989)). We hold that the phrase “UST” in section 22.18b of the Act is defined by section 22.18(e)(1)(A) of the Act and that IEPA and the Board properly interpreted the statute to deny Rockford reimbursement from the Fund.

Rockford argues in the alternative that this court should reverse the Board under equitable principles of fundamental fairness. We sympathize with the labyrinth of UST rules and regulations that Rockford faced. We note the promises of UST Fund coverage by the OSFM in 1986. We further note that Rockford would, most likely, have received reimbursement had Rockford filed its application with IEPA on or after July 11, 1990, when the amendments to the Act and the OSFM statutes took effect, rather than in October 1989.

However, we find no compelling reason for this court to invoke its equitable powers and order that Rockford be reimbursed from the UST Fund. A court may not simply dispense with the plain requirements of a statute by drawing on its equitable powers. (First Federal Savings & Loan Association v. Walker (1982), 91 Ill. 2d 218, 227.) We believe that the statutory definition of UST in effect when Rockford applied for reimbursement is clear and unambiguous, notwithstanding the affirmations made to Rockford in 1986 by the OSFM which were based on OSFM regulations. Sections in both the Act (Ill. Rev. Stat. 1989, ch. 1111/2, par. 1022.18(e)(1)(A)) and the OSFM statute (Ill. Rev. Stat. 1989, ch. 1271/2, par. 156(e)(1)) define UST by referencing RCRA (42 U.S.C.A. §6901 et seq. (West 1983)). We find no fundamental unfairness in the fact that Rockford’s tanks, along with similarly situated tanks, fell within the exclusion in the RCRA definition. 42 U.S.C.A. §6991(l)(b) (West Supp. 1991).

We further note that the legislature chose not to make the amendments that took effect July 11, 1990, retroactive in nature. A statutory amendment cannot be given retroactive effect in the absence of a clear expression of legislative intent to do so. (Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 309.) In addition, a material change in the language of the statute creates a presumption that the amendment was intended to change the law. (State of Illinois v. Mikusch (1990), 138 Ill. 2d 242, 252; see 1A N. Singer, Sutherland on Statutory Construction §22.30, at 265 (Sands 4th ed. 1985).) Therefore, we agree with the State’s argument that the amendments show a legislative intent to change the statutory definition of UST to include tanks such as Rockford’s effective July 11, 1990.

Within its request for equitable relief, Rockford contends that it has been the “victim of a taking.” Rockford argues that it paid a UST registration fee, $100 for each of 10 tanks, into the UST Fund in 1986 and is now being denied coverage from the Fund. Rockford’s argument is based on the “takings” clause of the Illinois Constitution, which provides:

“Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law.” (Ill. Const. 1970, art. I, §15.)

Rockford cites Citizens Utility Co. v. Metropolitan Sanitary District of Greater Chicago (1974), 25 Ill. App. 3d 252, as its only authority in support of its takings argument. We fail to see how Citizens Utility supports Rockford’s argument since the court there reversed a finding by the trial court that a private utility company had been the victim of a taking by the government. Citizens Utility, 25 Ill. App. 3d at 259.

Furthermore, we believe that the UST statutory scheme indicates that the OSFM is responsible for collecting registration fees and that the fees are deposited into the UST Fund (Ill. Rev. Stat. 1989, ch. 1271/2, par. 157(a)). While the primary intended use of the Fund is to provide money for the cleanup of UST leaks, money from the Fund may also be used by IE PA, the OSFM and the Department of Revenue for administrative costs associated with the UST program. (Ill. Rev. Stat. 1989, ch. lll1/2, par. 1022.13.) In this particular case, we therefore view the registration fee that Rockford paid into the UST Fund as being similar to an automobile owner paying a fee to register his car with the State or his locality, rather than being an insurance premium entitling the payor to coverage as Rockford argues. We therefore conclude that Rockford has not been the victim of a taking by the government.

For the above reasons, we affirm the decision of the Pollution Control Board.

Affirmed.

GEIGER and BOWMAN, JJ., concur.


text:
    GALVIN KENNEDY, Plaintiff-Appellant and Cross-Appellee, v. BARBARA MILLER et al., Defendants-Appellees and Cross-Appellants.
    Second District
    No. 2 — 90—0959
    Opinion filed November 7, 1991.
    — Rehearing denied December 26, 1991.

      William E. Jegen, P.C., of Glen Ellyn (William E. Jegen, of counsel), for appellant.
    Douglas Drenk and Nancy J. Smith, both of Drenk & Smith, Ltd., of Wheaton, and Leoris & Cohen, P.C., of Highland Park (David Drenk, of counsel), for appellees.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiff, Galvin Kennedy (Kennedy), appeals the judgment rendered by the circuit court of Du Page County in favor of the defendants, Barbara and Laurence Miller (Millers), finding that Kennedy was not entitled to any profits from the parties’ joint venture and that Kennedy was liable to the Millers for the amount of the proceeds distributed to Kennedy as a result of the sheriff’s sale of certain venture property, which occurred when the Millers failed to post an appeal bond on a previous appeal. The Millers cross-appeal, asserting that the trial court abused its discretion in imposing sanctions for filing an unfounded pleading for an improper purpose in violation of Supreme Court Rule 137 (134 Ill. 2d R. 137). We reverse that part of the trial court’s decision that found Kennedy was not entitled to any profits and remand with directions to enter judgment for Kennedy and affirm that part of the decision that imposed sanctions on the Millers and their attorneys.

Because the facts have been presented on four separate previous appeals (Kennedy v. Miller (1981), No. 2 — 81—0112, appeal dismissed; Kennedy v. Miller (1987), 156 Ill. App. 3d 1171 (unpublished order under Supreme Court Rule 23); Kennedy v. Miller (1988), 174 Ill. App. 3d 48; Kennedy v. Miller (1990), 197 Ill. App. 3d 785), we include only so much of the extensive 14-year history of this case as is necessary to our consideration of the issues before this court.

In 1973, Kennedy and the Millers entered a joint venture to develop a certain group of lots in the Village of Glen Ellyn. Walter Hoffman introduced Kennedy to the Millers and provided a small portion of the financing. Hoffman’s interest was, however, bought out by the Millers earlier in this litigation. In exchange for the Millers’ contribution of the capital to finance the project, Kennedy agreed to acquire the lots, arrange improvements and surveys, construct a “spec” home to be used as a model, and sell the lots in connection with his construction company. Profits from the resale of the thus improved lots were to be shared equally by Kennedy and the Millers, and Kennedy was to have priority in repurchasing the lots for use in his construction business. It was anticipated that completion of the acquisition, installation of the improvements, and resale of the property would take 24 to 28 months.

In 1977, Kennedy filed a two-count complaint seeking an accounting and judgment for 50% of the profits disclosed by such accounting and an injunction preventing the Millers’ sale of any additional lots belonging to the venture. In a bifurcated trial, the court initially rejected the Millers’ contentions that no joint venture existed or that it had terminated after 28 months with the Millers retaining 100% of the venture property to dispose of as they wished. The court found the terms of the joint venture to be:

“(1) Kennedy agreed to acquire the subject lots for the joint venture; to arrange for improvements of the said lots; to arrange for surveys; to build a ‘spec’ home to be used as a model.
(2) Kennedy further agreed to sell the lots subject to special assessments either separately or as part of construction contracts.
(3) The parties agreed that: ‘That profits will be divided 50-50’ i.e. 50% to the investors Millers (and Hoffman) and 50% to Kennedy.
(4) Lyons Savings and Loan Association was to have first opportunity to provide mortgage financing for buyers of the lots and especially upon construction deals of Kennedy.
(5) Kennedy was to have a priority for the purchase of said lots.
(6) Although no date or period for completion was in fact fixed, the parties anticipated the venture to be completed within two years to 28 months at which time it was to be dissolved. Upon dissolution, Kennedy was to have first right of refusal whereafter [sic] Millers would sell or keep.
(7) The court construes the meaning of the words ‘the profits will be divided 50-50’ from all of the testimony and conduct of the parties, to mean that regardless of the manner of disposition of the lots by the joint venture, Kennedy was to receive 50% of the profits. In like manner, the word ‘profits’ as used by the parties is construed to mean profits determined by the selling price less all direct costs of acquisition, improvements and preparation for and sale of the lots.
(8) The Millers (including Hoffman’s share) agreed to provide financing for the joint venture.”

The Millers appealed the court’s finding that a joint venture existed, but their appeal was dismissed. (Kennedy I, No. 2 — 81—0112, appeal dismissed (1981).) On September 8, 1981, the court further found that Kennedy was entitled to an accounting and that the Millers had no personal claim against Kennedy for nonperformance, but rather that any “claimed nonperformance by a party may constitute a claim in favor of the joint venture and against the nonperforming party and that issue will be considered as part of the accounting.” The court then invited the parties to submit statements of the remaining disputed issues of fact relative either to the accounting or to “any affirmative defense or counterclaim issues not previously decided,” and eventually to submit motions for summary judgment as to issues relating to the “accounting and affirmative matters in the nature of [a] set off [sic] claimed by defendant.”

The disputed issues so identified included Kennedy’s alleged nonperformance and the Millers’ claim for interest on their capital investment as an expense of the venture. The trial court granted both Kennedy’s motion for summary judgment as to the Millers’ affirmative defense/counterclaim of nonperformance and Kennedy’s motion for summary judgment as to the Millers’ claim for interest on their capital investment, and in April 1984 the first accounting hearing proceeded.

Upon completion of the accounting hearing, the trial court entered judgment against the Millers and in favor of Kennedy for $194,204.50. The court further ordered the remaining two lots to be sold and the proceeds distributed equally between the Millers and Kennedy. Kennedy received $30,142.96 as a result of the sheriff’s sale of the two lots. The Millers again appealed, asserting that the court erred at the first half of the bifurcated proceedings in finding the existence of a joint venture and further asserting that the court erred in granting Kennedy’s motions for summary judgment prior to the beginning of the second half of the proceedings, the accounting hearing. Kennedy cross-appealed the trial court’s denial of his claim for prejudgment interest. We affirmed the trial court’s finding that a joint venture existed and that Kennedy was entitled to an accounting as contained in the court’s September 8, 1981, order, but reversed the trial court’s grants of summary judgment in favor of Kennedy on the Millers’ counterclaim for nonperformance. Because such grant of summary judgment precluded consideration of Kennedy’s nonperformance as it affected the amount of expenses of the joint venture and, therefore, ultimately the amount of profits of the joint venture, we remanded for a new accounting hearing and did not reach the issue of Kennedy’s claim for prejudgment interest, nor other asserted errors relative to the calculation of the amount of the joint venture’s profits including the Millers’ claim of interest on their capital investment. Kennedy II, 156 Ill. App. 3d 1171 (unpublished order under Supreme Court Rule 23).

Upon remand to the trial court, Kennedy sought the appointment of a receiver to administer the venture funds frozen by the first trial court, which was denied. His interlocutory appeal was dismissed as moot when the Millers obtained the release of the subject funds. Kennedy III, 174 Ill. App. 3d 48.

In August 1989, Kennedy sought an order of the second trial court establishing rules for the second accounting, which the Millers opposed arguing that Kennedy’s nonperformance under the joint venture agreement precluded an accounting or, alternatively, that the date of dissolution was as yet undetermined and was a prerequisite to an accounting. In reliance on our affirmance of the original trial court’s finding of the existence of a joint venture and Kennedy’s entitlement to an accounting subject to setoff for any alleged nonperformance, the second trial court rejected the Millers’ argument. The Millers then moved to vacate the order entered by the second trial court establishing the rules for the accounting or, alternately, for an order imposing the costs of the compilation of such second accounting on Kennedy. The second trial court found that the Millers’ motion was in the nature of a motion for reconsideration and raised no new issue of either law or fact. The second trial court therefore found that the Millers and their attorneys had interposed the motion solely to harass Kennedy and sua sponte imposed sanctions of $1,000 on the Millers and their attorneys for Kennedy’s attorney fees and costs to respond to the motion to vacate.

The fourth appeal thus occurred when the Millers and their attorneys sought an interlocutory appeal of the sanctions imposed by the second trial court. After allowing the Millers’ attorney the opportunity to review their asserted basis of jurisdiction, of which they failed to avail themselves, we dismissed the appeal for lack of jurisdiction. Further, we imposed sanctions on the Millers and their attorneys for bringing a frivolous appeal. Kennedy IV, 197 Ill. App. 3d 785.

Upon return to the circuit court and after a change of venue to a different judge, the second accounting hearing eventually took place. The Millers’ second accounting was received into evidence, and Kennedy offered evidence of his objections to the accounting, which can be summarized as discrepancies within the accounting, claims for excess expenses, and failure to include certain revenues. Neither Kennedy nor the Millers introduced any evidence of Kennedy’s performance or nonperformance respectively.

The trial court held that: (1) the Millers’ accounting was sufficient; (2) Kennedy was not entitled to any profits; (3) Kennedy was liable to the Millers for the amount of the proceeds of the sheriff’s sale of the two lots; and (4) on all other matters, judgment was for the Millers and against Kennedy. Kennedy appeals, asserting that the trial court incorrectly reconsidered issues decided in the first half of the prior action and affirmed on appeal, failed to make specific findings of the amount of profits, and that its finding that Kennedy was not entitled to any profits was against the manifest weight of the evidence. He urges us to award him equitable prejudgment interest and, further, to enter judgment for him under Supreme Court Rule 366 (134 Ill. 2d R. 366). On cross-appeal, the Millers assert that the court abused its discretion in awarding Kennedy attorney fees occasioned by their attempt to avoid the burden of compiling a second accounting.

Despite the complex history of this case and extensive record, the first issue we must decide is simply which party bore the burden of proof on the disputed fact of Kennedy’s performance. Because we find that the Millers had the burden to prove Kennedy’s nonperformance to prevail on their counterclaim, we must also address the issues of prejudgment interest and the application of Supreme Court Rule 366 to allow us to enter judgment for Kennedy to resolve this 14-year-old action. Finally, we will consider the Millers’ cross-appeal of the imposition of sanctions for seeking to vacate the order establishing the rules for the second accounting.

The second trial court, after finding the Millers’ accounting sufficient, found that Kennedy was not entitled to any profits despite that accounting, which reflected a profit of $8,670. The second trial court also found Kennedy liable to the Millers for $30,142.96, which was one-half of the profits from the sheriff’s sale of the final two lots and which profits were not included in the Millers’ accounting, although the cost of the lots was so included as an expense. Finally, the second trial court was without the benefit of either the record, or more specifically the Millers’ accounting, in April 1989 when it handed down its decision. The entire record, including the Millers’ accounting, was removed from the trial court in January 1989 for preparation and presentment of the fourth appeal to this court and not returned until May 1989. Thus, it is apparent, and the Millers concede, that the second trial court based its determination that Kennedy was not entitled to any profits not on any consideration of the accounting and the amount of profits but rather on Kennedy’s failure to offer evidence of his performance. However, Kennedy had no burden to prove his performance at this stage of the proceedings.

The burden of proof in a suit for an equitable accounting is on the party that seeks the remedy to prove by a preponderance of the evidence that he has a right to the remedy. (Ferrell v. Plastic-Drum Corp. (1987), 159 Ill. App. 3d 936, 940.) The plaintiff must show that he has no adequate legal remedy and allege some special and substantial ground of equity jurisdiction such as the existence of a fiduciary relationship as exists between partners in a partnership. (Bakalis v. Bressler (1953), 1 Ill. 2d 72, 78; Nieberding v. Phoenix Manufacturing Co. (1961), 31 Ill. App. 2d 350, 356.) Thus, to prevail and prove an entitlement to an accounting, a party must first prove the existence of a joint venture or partnership. Schane v. Conrad (1979), 68 Ill. App. 3d 961, 964-65.

A joint venture is a form of partnership, with the business of the partnership limited to a single, although often large, transaction or project. (Harmon v. Martin (1947), 395 Ill. 595.) However, the mere agreement to form a partnership does not of itself create a partnership. (Wilson v. Campbell (1848), 10 Ill. 383, 402.) Rather, a partnership arises only when the parties actually join together to carry on a venture for their common benefit, each contributing property or services and having a community of interest in the profits of the venture. (Peck v. Peck (1959), 16 Ill. 2d 268, 280.) Thus, at the initial hearing to determine if a party is entitled to an accounting, the party seeking the accounting must prove the intent to form a partnership, as well as contribution to the partnership of either property or services. See Ferrell, 159 Ill. App. 3d at 940.

If the party seeking the accounting prevails in an initial hearing and proves his entitlement to such proceeding, a second separate hearing on the actual accounting is conducted. (Schane, 68 Ill. App. 3d at 964-65; Berbers v. Vaughan Co. (1952), 348 Ill. App. 407, 409.) At the accounting, the party managing or controlling the venture and possessing the records of the venture has a fiduciary duty to the party seeking the accounting and has the burden to produce the accounting. (Couri v. Couri (1983), 95 Ill. 2d 91, 98.) Any doubts created by errors or omissions in the accounting are resolved against the party producing it. (Couri, 95 Ill. 2d at 98.) If a party seeks credits against the accounting, such party has the burden to prove them. Clapp v. Emery (1881), 98 Ill. 523, 536.

In this instance, the first trial court determined at the initial half of the bifurcated proceedings that Kennedy joined with the Millers to develop the lots for their common benefit. The Millers contributed the financing, and Kennedy contributed his services. Each was to share equally in the profits of the venture. The court rejected the Millers’ evidence that Kennedy’s nonperformance prevented the creation of the joint venture. Rather, the trial court found that a claim based on the alleged nonperformance by Kennedy inured only to the benefit of the joint venture, which, if proved, could be set off or credited against the profits of the joint venture at the accounting. Thus, the trial court found that a joint venture existed and that Kennedy was entitled to an accounting.

We explicitly affirmed the trial court’s determination that a joint venture existed and that Kennedy was entitled to an accounting. We reversed and remanded for a new accounting, however, to allow the Millers the opportunity to adduce evidence of their counterclaim for Kennedy’s breach of the joint venture agreement, which had been precluded by the trial court’s grant of Kennedy’s motion for summary judgment on that issue. Thus, the only question before the second trial court was the amount of Kennedy’s entitlement to profits, which required a determination of the amount of profits, or losses, of the joint venture. The court at the second accounting hearing was bound by our determination that Kennedy was entitled to an accounting. Therefore, the issue of Kennedy’s nonperformance related only to the Millers’ counterclaim for credits against the amount of profit generated by the joint venture and on which the Millers bore the burden of proof. The Millers’ own accounting reflects profits of $8,670 without reference to either Kennedy’s evidence of his objections or the additional profits previously distributed pursuant to the court-ordered sheriff’s sale of the final two venture lots. Thus, even accepting the Millers’ accounting, it is apparent that Kennedy was entitled to some profits, and the decision of the second trial court that he was not entitled to any profits was patently against the manifest weight of the evidence.

In addition to the $8,670 of profits admitted by the Millers’ own accounting, Kennedy offered unrebutted evidence of an additional $58,253 in recapture funds, which were collected by the Village of Glen Ellyn as part of the cost of building permits issued for the lots and paid to the Millers on behalf of the venture to recover the amounts expended improving the property. The records of the bank that held such funds indicated $4,004 more in interest paid than was reflected on the Millers’ accounting. Although the Millers included the cost of the final two lots as an expense of the venture, they failed to include the proceeds from the sale of those lots in 1986, which were $71,661. Finally, Kennedy offered evidence of discrepancies in the Millers’ accounting relative to the cost of several lots, title insurance charges, and trust fees that total an additional $12,656 in revenue. Thus, these adjustments reflect a net profit of $155,244.

However, the Millers’ profit figure of $8,670 included as an expense of the venture $224,792 in claimed interest at 15% per annum on the Millers’ own capital contribution, which was reflected only on the cover sheets to their accounting. However, the Millers’ bare conclusion that they are entitled to interest on their capital contribution is unfounded as a matter of law. Section 18(d) of the Uniform Partnership Act (Ill. Rev. Stat. 1987, ch. 1061/2, par. 18(d)), which governs this joint venture, provides that no interest accrues on the contribution of a partner until it becomes due absent an express agreement to the contrary. (Ill. Rev. Stat. 1987, ch. 1061/2, par. 18(d); Al Wiegand, Inc. v. Wiegand Concrete Products, Inc. (1978), 65 Ill. App. 3d 1045, 1048-49.) Therefore, in addition to the $155,244 in profits noted above, we readd the additional $224,792 incorrectly deducted by the Millers as an expense of the venture. We find that the profits of the joint venture were $380,036, which is the total amount of profits Kennedy asserts the venture generated as well. Kennedy’s entitlement to profits was one half that amount. We, therefore, reverse the decision of the second trial court that the Millers’ accounting was sufficient and that Kennedy was not entitled to any profits, as well as its finding of judgment against Kennedy on all other issues, and find that Kennedy was entitled to profits of $190,018.

Kennedy also asserts, however, that he is entitled to equitable interest at the prevailing prime rate on the profits that the Millers wrongfully withheld. Where a breach of fiduciary duty has occurred, an equitable award of interest may be appropriate to make an injured party complete by forcing the fiduciary to account for profits and interest gained through the use of the injured party’s money. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 87.) In this context, prejudgment interest arises from the concepts of fairness and equity rather than as a sanction against the wrongdoer. (In re Estate of Wernick, 127 Ill. 2d at 87.) Statutory interest rates, which are the basis of interest imposed as a sanction, do not provide an accurate measure of compensation for the economic loss occasioned by money wrongfully withheld. (In re Estate of Wernick, 127 Ill. 2d at 87-88.) Rather, an award of interest at the prevailing prime rate is necessary so that Kennedy can be made whole. See In re Wernick, 127 Ill. 2d at 88.

The record contains evidence of the prevailing prime rate from 1979 through September 29, 1989, as well as Kennedy’s portion of the venture’s profits by year. Kennedy urges us to enter judgment here as authorized by Supreme Court Rule 366 (134 Ill. 2d R. 366), which allows a court to enter an order that should have been entered below when the information necessary to resolve the issues is present in the record and when the litigation has dragged on an unreasonable amount of time. (Couri, 95 Ill. 2d at 102 (nine years); In re Estate of Barbera (1973), 55 Ill. 2d 235 (six years).) Despite 14 years of litigation and four prior appeals and although we find this instance to be particularly appropriate for application of Rule 366, we find that the absence from the record of evidence of the prime interest rates for the last quarter of 1989, as well as 1990 and 1991, prevents us from exercising our authority pursuant to Supreme Court Rule 366. However, we find that Kennedy is entitled to $190,018.23 in profits, less $30,142.96 already disbursed to Kennedy in 1986 pursuant to court order, and $239,472.53 in equitable interest or a total of $399,347.80 for the years 1979 through 1988, as detailed below:

Interest Interest Profits Cumulative
Year Rate Due Due Total Due
1978 - - $68,864.70 $68,864.70
1979 12.67 $8,725.16 32,800.94 110,390.80
1980 15.27 16,856.68 2,295.17 129,542.65
1981 18.87 24,444.70 27,146.60 181,133.95
1982 14.84 26,880.28 38.99 208,053.22
1983 10.79 22,448.94 2,347.54 232,849.70
1984 12.04 28,035.10 3,334.58 264,219.38
1985 9.93 26,236.98 7,646.41 298,102.77
1986 8.33 24,831.96 5,939.05 328,873.78
1987 8.20 26,967.65 9,449.08 365,290.51
1988 9.32 34,045.08 6.85 399,342.44
1989 5.36 399,347.80
TOTAL: $239,472.53 $159,875.27 $399,347.80

In addition, Kennedy is entitled to an additional award of equitable interest at the prevailing average prime rate for the years 1989, 1990, and a portion of 1991, which must be determined after evidence of those rates is admitted on remand.

We now turn to the Millers’ cross-appeal, which asserts that the second trial court abused its discretion in imposing $1,000 in attorney fees and costs as a sanction against the Millers and their attorneys for interposing an unfounded motion solely to harass Kennedy. Upon remand to the trial court after the Millers’ successful appeal (Kennedy II, 156 Ill. App. 3d 1171 (unpublished order under Supreme Court Rule 23)), Kennedy moved for an order establishing the rules for the second accounting, which the Millers opposed again arguing that Kennedy had failed to establish his entitlement to an accounting. After review of our opinion and mandate, the second trial court granted Kennedy’s motion and entered an order establishing the rules for the accounting. However, the Millers interposed a motion to vacate that order, asserting still again that they had no duty to account to Kennedy. The court specifically found that the motion was unfounded and had been interposed merely to harass Kennedy and cause an unnecessary expense.

Supreme Court Rule 137 (134 Ill. 2d R. 137) provides that the court on its own initiative may impose an appropriate sanction on an attorney or party who interposes an unfounded pleading for an improper purpose, including harassment of the opposing party or to cause delay or needless expense. Such appropriate sanctions may include, but are not limited to, reasonable expenses generated as a result of the improper pleading. (134 Ill. 2d R. 137.) The trial court’s decision to impose sanctions will not be reversed absent an abuse of discretion. In re Marriage of Getautas (1989), 189 Ill. App. 3d 148.

The question of Kennedy’s right to an accounting was decided by the initial trial court, which we affirmed on appeal. (Kennedy II, 156 Ill. App. 3d 1171 (unpublished order under Supreme Court Rule 23).) Thus, the Millers’ assertion that Kennedy was not so entitled was patently unfounded. The second trial court’s imposition of sanctions based upon the Millers’ repeated assertions to the contrary was not an abuse of discretion. Nor do we find merit in the Millers’ assertion that the omission from the record of evidence of Kennedy’s actual attorney fees and costs precluded imposition of the $1,000 sanction imposed. Because the second trial court was not limited to imposition of only reasonable attorney fees, but free to determine the appropriate sanction (134 Ill. 2d R. 137), Kennedy was not required to present evidence of his attorney fees incurred as a result of the Millers’ improper pleading.

The judgment of the second trial court finding that Kennedy was not entitled to any profits and entering judgment for the Millers is reversed, and the cause is remanded. On remand, the trial court is directed to allow Kennedy to offer evidence of the prevailing average prime interest rate for the years 1989, 1990, and 1991 to date and to enter judgment for Kennedy for profits and equitable interest through 1988 in the amount of $399,347.80, plus the additional equitable interest on that amount for the years 1989, 1990 and 1991 based on the evidence so received, and costs. We note for clarification that this judgment is in addition to the $30,142.96 already paid to Kennedy pursuant to the initial trial court’s order directing the sheriff’s sale of the final two venture lots. The order of the second trial court imposing $1,000 in sanctions against the Millers for filing an unfounded pleading for an improper purpose is affirmed.

Affirmed in part; reversed in part and remanded.

DUNN and GEIGER, JJ., concur.