text:
      In re MARRIAGE OF GORDON L. CLARK, Petitioner-Appellant, and BARBARA P. CLARK, Respondent-Appellee.
    Second District
    No. 2—91—0485
    Opinion filed July 24, 1992.

      Marsha H. Cellucci, of Cellucci, Yacobellis & Holman, of Naperville, for appellant.

      Allen S. Gabe, of Gabe, Gabe & Associates, and Theresa M. Varnet, of Spain, Spain & Varnet, both of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The petitioner, Gordon L. Clark, appeals from the judgment of the circuit court of Du Page County granting the motion of the respondent, Barbara P. Clark, to dismiss the cause on the ground oí forum, non con-veniens and to transfer it to the county of Berkshire in the State of Massachusetts. Gordon also appeals from a prior order of the court granting Barbara’s amended motion to vacate the judgment of dissolution. We affirm as to the dismissal and transfer of the cause and do not address the propriety of the court’s order vacating the judgment of dissolution because we lack jurisdiction to do so.

Gordon filed his petition for dissolution of marriage on June 16, 1988, and Barbara subsequently filed a cross-petition for child custody. During the course of discovery and settlement negotiations, it was apparent that Barbara was acting strangely and was not cooperating with her counsel. She never attended a court hearing or participated in a joint conference. On one occasion, the trial of the cause had to be continued due to Barbara’s refusal to participate or cooperate with her counsel. The trial judge suggested that a guardian should be appointed for Barbara but, for reasons the court found not to be attributable to either counsel, this was not done.

The cause came on for trial on October 20, 1989. Barbara refused to participate and was not present at the trial. Gordon was present at trial, although he had moved to Massachusetts earlier that year. Following trial, the court entered its judgment of dissolution of marriage on November 15. On the same date, Barbara’s counsel were granted leave to withdraw due to Barbara’s refusal to cooperate. The dissolution judgment provided for an equitable division of the marital property of the parties, child custody and child support and reserved the issue of maintenance.

Subsequently, on November 22, Gordon petitioned for the appointment of a guardian of Barbara’s estate only when she refused to sign the closing documents on the sale of the marital residence. The guardian ad, litem appointed for Barbara in connection with Gordon’s petition interviewed her on December 6. On that day also, due to unrelated events which occurred several days earlier, Barbara was involuntarily committed to the Elgin Mental Health Center. She was determined two days later to be a person not subject to involuntary admission. Barbara denied during the interview with the guardian ad litem that she was either divorced from her husband or involved in any court proceeding, stated that she did not want to communicate with anyone regarding her condition and said she wanted only to get back in her car with her daughter. The guardian ad litem recommended the appointment of a plenary guardian for Barbara’s person and estate. On December 8, coguardians of both Barbara’s person and estate were appointed.

Barbara moved to Massachusetts on or about December 9, and, by agreement of the parties, the children moved in with their father in Massachusetts. On December 13, Barbara filed a motion to vacate or modify the November 15 judgment of dissolution on the ground she was mentally ill throughout the proceedings and was incapable of comprehending the meaning of the proceedings or the settlement agreement which had been entered into on her behalf. On January 23, 1990, shortly after her move to Massachusetts, Barbara was committed to Berkshire Medical Center in Massachusetts after she was diagnosed as suffering from chronic schizophrenia. The “date of onset” of the chronic schizophrenia was shown on the medical report as “approximately 1979.”

Barbara filed an amended motion to vacate the judgment of dissolution in July 1990. Gordon replied, and, after hearing on November 1, the court vacated the judgment of dissolution and ordered a new trial. The court allowed Barbara 14 days to file her amended answer or otherwise plead and set the cause for trial in January 1991.

On December 3, 1990, Gordon petitioned this court pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306) for leave to appeal the court’s grant of a new trial. This court first mistakenly struck the petition for leave to appeal as untimely, then granted Gordon’s motion to reconsider and, upon doing so, denied the petition for leave to appeal on February 5,1991.

While Gordon’s petition for leave to appeal was pending, and within the time allotted her for filing an amended answer to the petition for dissolution, Barbara filed a motion to dismiss based on forum non con-veniens or, in the alternative, requested a transfer of the cause to Massachusetts. It was alleged therein that, since the filing of the petition for dissolution, both of the parties and their children had moved to Massachusetts and, under Massachusetts law, Massachusetts properly had jurisdiction of the parties and the cause of action. It was further alleged the parties owned no real property in the State of Illinois and had no contacts with the State of Illinois other than the instant dissolution cause and funds from the sale of the marital residence which were held in escrow by Barbara’s Illinois coguardian.

Because the court did not receive Gordon’s response to Barbara’s forum non conveniens motion, the court granted Barbara’s motion to dismiss but later vacated its dismissal on Gordon’s motion. Gordon responded to the motion admitting, in pertinent part, Massachusetts’ probable jurisdiction of the cause of action and the parties if the cause were to be filed there.

After a hearing on March 26, 1991, the court granted Barbara’s motion for transfer of the cause on the ground of forum non conveniens and ordered that the cause and the escrowed funds be transferred to Massachusetts. It also declared moot a pending motion to approve the distribution of the escrowed funds. Gordon timely filed a notice of appeal from the court’s March 26 order, but we denied as untimely his subsequent motion, filed five months later, seeking to amend his notice of appeal to include the court’s November 1, 1990, order vacating the judgment of dissolution.

In this appeal, Gordon seeks review and reversal of the trial court’s order (1) vacating the judgment of dissolution and (2) dismissing the cause under the doctrine of forum non conveniens and transferring it to Massachusetts. We find we lack jurisdiction to address the merits of the issue of the trial court’s vacatur of the judgment of dissolution for two reasons. First, Gordon’s notice of appeal does not specify his appeal was taken from that judgment but, rather, only from the court’s order transferring the cause to Massachusetts. As noted above, we rejected as untimely his motion to amend his notice of appeal to include that order vacating the judgment of dissolution, and we plainly did not err in that rejection. Gordon’s five-month delay in seeking the amendment far exceeded the 30-day time limits provided in Supreme Court Rule 303. 134 Ill. 2d Rules 303(cX4), (e).

Second, our denial of Gordon’s earlier petition for leave to appeal the trial court’s order for a new trial pursuant to the provisions of Supreme Court Rule 306 is not subject to relitigation before this court. (See Robbins v. Professional Construction Co. (1978), 72 Ill. 2d 215, 221-23.) Rule 306 provides the exclusive means of reviewing the grant of a new trial. (Ill. Ann. Stat., ch. 110A, par. 306, Historical & Practice Notes, at 245 (Smith-Hurd 1985).) We have already denied Gordon’s petition for leave to appeal under that rule, and, consequently, we proceed to address only Gordon’s contention that the court abused its discretion in dismissing the cause under the doctrine of forum non conveniens.

Initially, Gordon suggests that there may have been “some confusion” as to what the trial judge believed the motion to be since its final order transferred the cause to Massachusetts rather than dismissing it. Barbara’s motion sought relief in the alternative, requesting dismissal or transfer to Massachusetts. Gordon states that, absent an agreement of the parties, there does not appear to be any provision in the supreme court rules for interstate, as opposed to intrastate, transfers. In dicta in In re Marriage of Kelso (1988), 173 Ill. App. 3d 746, a motion to transfer out of State on the grounds of forum non conveniens was described parenthetically as “more properly, a motion to dismiss.” (Kelso, 173 Ill. App. 3d at 751.) Barbara concurs in Gordon’s position that the effect of the court’s order was to dismiss the cause, and we will construe it thusly for purposes of our discussion below.

Gordon argues it was an abuse of the court’s discretion to dismiss the cause merely because the parties had moved, particularly where Barbara’s forum non conveniens motion was filed more than two years after she initially filed her answer to the petition for dissolution. We find inapposite the cases cited by Gordon in support of his argument that the mere fact the parties moved was insufficient reason to grant dismissal and transfer the cause to Massachusetts. Neither Kovac v. Kovac (1960), 26 Ill. App. 2d 29, nor Kelly v. Warner (1983), 119 Ill. App. 3d 217, directly concerns the issue of whether the court properly exercised its discretion in deciding a forum non conveniens motion but, rather, whether the court in those respective cases was divested of jurisdiction due to events occurring subsequent to its jurisdiction attaching, such as a change of residence.

It is clear that once jurisdiction attaches in a cause, it continues until all issues of fact and law have been finally determined. (Kovac, 26 Ill. App. 2d at 47-48; Kelly, 119 Ill. App. 3d at 219.) Under the doctrine of forum non conveniens, however, a court has discretion to decline to continue its jurisdiction over a cause “whenever it appears that there is another forum that can better ‘serve the convenience of the parties and the ends of justice.’ ” Adkins v. Chicago, Rock Island & Pacific R.R. Co. (1973), 54 Ill. 2d 511, 514, quoting Lonergan v. Crucible Steel Co. of America (1967), 37 Ill. 2d 599, 606.

Whether to grant or deny a forum non conveniens motion is within the broad discretion of the trial court, which balances the private interest factors affecting the litigants and the public interest factors affecting the administration of courts, and, on review, this court will reverse only where the trial court has abused its discretion in weighing the relevant considerations. (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 106; McClain v. Illinois Central Gulf R.R. Co. (1988), 121 Ill. 2d 278, 288; Schoon v. Hill (1990), 207 Ill. App. 3d 601, 605.) The doctrine of forum non conveniens assumes there is more than one forum with jurisdiction over the parties and subject matter (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217) and is founded in considerations of fundamental fairness and sensible and effective judicial administration. (Adkins, 54 Ill. 2d at 514.) Although deference is generally accorded to the plaintiff’s choice of forum, less deference to that choice is warranted if the plaintiff is foreign to the forum. (McClain, 121 Ill. 2d at 289-90.) The test in deciding the motion is whether the relevant factors, viewed in their totality, strongly favor transfer to the forum suggested by the defendant. Griffith, 136 Ill. 2d at 108.

Relevant private and public interest factors to be considered were noted in Griffith:

“Private interest factors to be considered are the convenience of the parties, the relative ease of access to sources of proof, the accessibility of witnesses, and ‘all other practical problems that make trial of a case easy, expeditious and inexpensive.’ [Citations.]
Relevant public interest factors include the administrative difficulties caused when litigation is handled in congested venues, the unfairness of imposing jury duty upon residents of a county with no connection to the litigation, and an interest in having localized controversies decided locally.” Griffith, 136 Ill. 2d at 105-06.

Here, the trial court was apprised of the facts that the dissolution was filed by Gordon while he and his family were residents of Naper-ville, Illinois; that the judgment of dissolution was vacated on the basis Barbara was not competent during the dissolution proceedings; that by the time a new trial was ordered and the motion to dismiss was heard, Gordon, Barbara and their children had been residents of Massachusetts for some time; that Barbara was often hospitalized in Massachusetts; that Barbara had coguardians: her sister in Massachusetts was one and an attorney in Illinois was the other; that her coguardian in Massachusetts had an attorney; that the parties’ only property remaining in Illinois was funds held in an escrow account; that the new trial would bring Gordon and Barbara back to Illinois to try the issues; and that the children lived with Gordon in Massachusetts.

In view of these circumstances, we cannot conclude the trial court abused its discretion in declining further jurisdiction of the cause. It is apparent that the Massachusetts forum can better serve the convenience of the parties and the ends of justice. The parties all now reside in Massachusetts, Gordon having lived there since early 1989 and Barbara and the children since late 1989. Barbara’s sister, who is also her coguardian, and Barbara’s coguardian’s attorney are also in Massachusetts. The children live with Gordon in Massachusetts, and Barbara is often hospitalized there. For Gordon and Barbara to have to return to Illinois for a new trial would inconvenience both of them, necessitate alternate care arrangements for the children and put an undesirable distance between Barbara, her coguardian sister and attorney, and familiar medical facilities in Massachusetts. The couple no longer owns any property in Illinois except funds in the escrow account and even those, it appears, have already been transferred to Massachusetts. Any financial or other records needed for trial would most likely already be in the parties’ possession in Massachusetts.

As for the public interests involved, we have no knowledge of the congestion of Massachusetts’ venues; presumably they bear caseloads similar to those in Illinois. No jury would be required for trial of the cause, and, since the parties and their children are all residents of Massachusetts, that State bears a substantial interest in the outcome of this dissolution proceeding.

Gordon complains that he has already incurred substantial expenditures of time and money and that he will be required to start over if the court’s dismissal is upheld. A new trial has already been ordered to be held, however, no matter whether the cause is dismissed from the Illinois forum or not. Moreover, it appears from the record that the parties will be able to, if they so desire, draw upon the past record of the cause in preparing for the new trial.

In our opinion, these relevant factors noted above, viewed in their totality, strongly favor transfer to the forum suggested by Barbara. Consequently, there was no abuse of discretion, and no reversal is warranted.

Gordon’s further argument on appeal as to this issue concerns the timeliness of Barbara’s motion to dismiss. He argues that the language of Supreme Court Rule 187 (134 HI. 2d R. 187(a)) should not be interpreted to mean that a party may file a forum non conveniens motion to dismiss “within 90 days after the last day allowed for the filing of that party’s amended answer.”

In the instant cause, after the court granted Barbara’s motion to vacate the judgment of dissolution, Barbara requested and the court granted her time to file an amended answer. Instead of filing an amended answer within that time, Barbara filed her motion to dismiss on the grounds of forum non conveniens.

Supreme Court Rule 187 was promulgated in response to the the case of Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, in which the court considered, for the first time, the effect of delay on the propriety of granting a motion to transfer or to dismiss on the basis of forum non conveniens. The court concluded in that consolidated case that the defendants, whose forum non conveniens motions for dismissal were delayed for 39 and 32 months, respectively, waived their right to move for dismissal. No ver se rule of waiver was announced there, however, but the supreme court subsequently adopted its Rule 187, which provides:

“A motion to dismiss or transfer the action under the doctrine of forum non conveniens must be filed by a party not later than 90 days after the last day allowed for the filing of that party’s answer.” 134 Ill. 2d R. 187(a).

Certainly, it is preferable that a party who finds the chosen forum unsuitable seek to remove the cause early in the proceedings to one it finds more amenable. The doctrine of forum non conveniens is based in equity, and equity does not favor those who sleep on their rights. Bell, 106 Ill. 2d at 146.

It is true that, when the instant cause commenced, there were not yet two appropriate forums and so there would have been no basis for a forum non conveniens motion. It was only when the parties all subsequently moved to Massachusetts and the court ordered a new trial that the convenience of Massachusetts as the second forum became evident. Barbara’s motion for dismissal was made very shortly after the court granted the new trial.

The time limit set forth in Rule 187 for filing a motion to dismiss or transfer on the grounds of forum non conveniens is clear and unambiguous and, as such, needs no interpretation. We decline, however, to read Rule 187 as an absolute prohibition against filing such a motion beyond the limit prescribed, particularly in light of Supreme Court Rule 183. That rule specifically permits that “[tjhis court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.” 134 Ill. 2d R. 183.

The court’s act in allowing Barbara to file her forum non conveniens motion was within the discretion afforded it under Rule 183, and, therefore, we consider that it was timely filed.

For the reasons above, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    THE VILLAGE OF WINNETKA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Raymond Gherardini, Appellee).
    First District (Industrial Commission Division)
    No. 1—90—3153WC
    Opinion filed February 7, 1992.
    Rehearing denied August 13, 1992.
    Jack M. Shanahan, of Chicago, for appellant.
    Krol, Bongiorno & Given, of Chicago, and Thomas W. Duda, of Buffalo Grove (Salvatore J. Bongiorno, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff-appellant Village of Winnetka (the Village) brought this action for judicial review of the Industrial Commission’s decision which, confirming the arbitrator, found that section 22 — 307 of the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. IO8V2, par. 22 — 307) did not bar claimant Raymond Gherardini, a Winnetka fireman, from proceeding on his worker’s compensation claim against the Village. The trial judge confirmed the decision of the Industrial Commission, which order the Village appeals. We reverse.

The relevant facts are as follows. The Village employed claimant as a fire fighter. In November of 1982, claimant was injured in the course of his employment. As a result, he incurred charges for medical treatment and lost 7sh weeks from his work. The Village paid his medical bills and his full salary for the time he missed work.

On January 10, 1984, claimant filed an application for adjustment of claim with the Industrial Commission, seeking compensation for his injuries under the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) (the Act). The Village took the position that the Village’s ordinance 3.14 (Winnetka, Ill., Ordinance 3.14) (Ordinance 3.14) and sections 22 — 306 and 22 — 307 of the Illinois Pension Code (Ill. Rev. Stat. 1981, ch. lOSVe, pars. 22 — 306, 22 — 307) barred claimant’s right to compensation under the Act. The arbitrator awarded claimant permanent partial disability under section 8(e) of the Act to the extent of 30% loss of use of his right leg.

The Industrial Commission (Commission) subsequently affirmed the arbitrator’s decision. The Village appealed the Commission’s decision to the circuit court of Cook County. The trial court confirmed the Commission’s decision, holding (1) that the Pension Code provisions did not bar a claim for permanent partial disability under the Act, and (2) that even if the Pension Code provisions did apply, the failure of the Village to provide in its ordinance for loss of use compensation rendered the ordinance ineffective to bar claimant’s right to compensation under the Act.

Section 22 — 306 of the Pension Code provides in relevant part:

“The corporate authorities of any city or the village may provide by ordinance that in case of an accident resulting in an injury to or death of a policeman or fireman in the employ of such city or village while in the performance of his duties, the officer at the head of the department or such other officer as may be designated may secure and provide proper medical care and hospital treatment for any such policeman or fireman. The city or village may incur the expense aforesaid and appropriate and pay for the same.” Ill. Rev. Stat. 1981, ch. lOSbk, par. 22— 306.

Section 22 — 307 of the Pension Code provides in relevant part:

“Common law or statutory rights barred. Whenever any city or village enacts an ordinance pursuant to this Division, no common law or statutory right to recover damages against such city or village for injury or death sustained by any policeman or fireman while engaged in the line of his duty ***, other than the payment of the allowances of money and of the medical care and hospital treatment provided in such ordinance, shall be available to any policeman or fireman who is covered by the provisions of such ordinance ***.
If any action against such city or village to enforce a common law or statutory right to recover damages for negligently causing the injury or death of any policeman or fireman, is pending, for trial or on appeal, at the time this Division shall come in force or *** at the time such ordinance is enacted, the amount of any award or allowance of money pursuant to such ordinance shall not be paid while such action is pending and shall be reduced, before payment, by the amount of any judgment obtained *** or such allowance of money, if already paid, together with all moneys expended pursuant to such ordinance for medical care and hospital expenses, may be set off against such judgment, either in such pending action or through other appropriate action by such city or village.” Ill. Rev. Stat. 1981, ch. IO8V2, par. 22 — 307.

Sections 22 — 301 through 22 — 305 of the Pension Code, which are in the same division of the Pension Code as sections 22 — 306 and 22— 307, all deal with a city’s or village’s power and exercise of same to enact an ordinance for the “allowance of money” to the family or de-pendants of any policemen or firemen killed or fatally injured in the performance of their duties. See Ill. Rev. Stat 1981, ch. IO8V2, pars. 22 — 301 through 22 — 305.

Section 22 — 306 clearly provides that the Village had the power to “provide by ordinance that in case of an accident resulting in an injury or death of a policeman or fireman” in the Village’s employ in the performance of his duties, the Village would incur the expenses of medical care and hospital expenses. Ordinance 3.14, apparently adopted pursuant to section 22 — 306, provides in pertinent part:

“Accidental injury to or Death of Firemen and Policemen.
(a) Medical Care. In case of an accident resulting in an injury to or death of a policeman or fireman in the employ of the village while in the performance of his duties, the village manager shall have the authority to secure and provide proper medical care and hospital treatment for any such policeman or fireman, and to that end may incur expenses in connection therewith.
(c) Payment of Expenses. All bills showing the items of expense incurred for any medical care and hospital treatment [shall be presented to the Village manager and if determined reasonable, recommended to the Village council, who shall if necessary appropriate funds to cover the items of expense].” Winnetka, Ill., Ordinance 3.14.

It seems clear that Ordinance 3.14 provides for precisely what section 22 — 307 authorizes, and claimant makes no argument that the ordinance does not comply with the provisions of section 22 — 306. Rather, claimant argues that despite the enactment of Ordinance 3.14, the Village is not entitled to the protection section 22 — 307 affords. This is so, according to claimant, because the bar provided in the first paragraph applies only to actions grounded in negligence.

In support of this argument, claimant notes that the second paragraph of section 22 — 307 provides for a setoff of recovery where policemen or firemen have filed actions asserting common law or statutory rights to recover against a city or village. This second paragraph applies only to actions based on negligence and pending at the time the statute came into force or such an ordinance was enacted. Claimant further notes that predecessors to section 22 — 307, which contained substantially the same language as the current section 22 — 307, consisted of a single paragraph. The fact that the predecessors to current section 22 — 307 contained only one paragraph is further evidence that the legislature intended the bar to apply to actions grounded in negligence only.

We disagree with claimant’s interpretation of section 22 — 307. The language of the first paragraph of section 22 — 307 is clear. It provides that whenever a city or village enacts an ordinance pursuant to sections 22 — 301 or 22 — 306, “no common law or statutory right to recover damages against such city or village *** other than the payment of the allowances of money and of the medical care and hospital treatment provided in such ordinance, shall be available [to those the ordinance covers.]” (Ill. Rev. Stat. 1981, ch. IO8V2, par. 22 — 307.) The meaning of the words “no common law or statutory right to recover damages *** shall be available” is susceptible to only one interpretation and as a result is unambiguous. The second paragraph of section 22 — 307 applies to an entirely different circumstance than that before us: that of pending actions grounded in negligence. We refuse to speculate as to why the legislature provided a setoff for actions grounded in negligence only. Given that the setoff part of section 22 — 307 applies only to this limited type of action, which is neither involved in the case sub judice nor is the only type of action which may be asserted against a municipality, we fail to see how the plain language of the first paragraph of section 22 — 307 may be disregarded. That language clearly indicates that no common law or statutory right is available for those to whom such an ordinance applies.

Claimant also calls attention to the fact that section 1(b)(1) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1(b)(1)) was amended in 1984 to provide that firemen in a city with a population of more than 200,000 would be covered under the Act’s provision of disfigurement claims. Claimant notes that the legislative history of this amendment indicates that the amendment’s sponsor intended the amendment to place Chicago firemen “in the same situation as fire fighters all over the rest” of the State. Thus, according to claimant, it makes no sense to interpret section 22 — 307 of the Pension Code as barring workers’ compensation claims.

Neither the amendment to the Act claimant cites nor the legislative history claimant refers to, however, compels the result advanced. We do not address in this case a claim for disfigurement under the Act, and the tension between section 22 — 307 and section 1(b)(1) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1(b)(1)) is not at issue. Rather, claimant’s claim under the Act was for temporary total disability and permanent loss of use of his right leg. The legislative history of the above amendment is, first of all, not legislative history of section 22— 307, which we are interpreting, and second, not dispositive. The sponsor’s remarks that the amendment was intended to place Chicago firemen in the same situation as fire fighters in the rest of the State may well have been said on the assumption that other municipalities have not enacted such an ordinance as the Village has. We note that each case the parties have identified involves an ordinance of the City of Chicago; no case law construing any other Illinois municipality’s similar ordinance has been brought to our attention.

Likewise, we do not accept claimant’s argument that the offset provisions of Article 4 of the Pension Code (Ill. Rev. Stat. 1981, ch. IO8V2, par. 4 — 101 et seq.) compel the result that claimant may bring a claim under the Act. According to claimant, the purpose of the Article 4 provisions is to avoid double recovery to policemen and firemen who receive workers’ compensation benefits. However, the double recovery concern applies to situations where a policeman or fireman files a claim and recovers under the Act. Here, we deal with a statute providing that a municipality may enact an ordinance which bars an individual from bringing the workers’ compensation claim in the first instance.

Claimant has advanced the argument that any conflict between a municipal ordinance and a State statute must be resolved in favor of the statute. (See Village of Mundelein v. Hartnett (1983), 117 Ill. App. 3d 1011, 454 N.E.2d 29.) We think, however, that this argument misstates the issue. Here, the ordinance was specifically adopted pursuant to a State statute itself, namely, section 22 — 306 of the Pension Code. Thus, the conflict is one between State statutes, not between the ordinance and a State statute. On this issue, we agree with the Village that the Pension Code provisions, which apply specifically to only policemen and firemen, are the more specific statutes, and thus are controlling. See People v. Maya (1983), 119 Ill. App. 3d 961, 965.

Claimant also asserts that the Act should take primacy over the Pension Code, noting that the Act applies generally to all employees in this State, and noting the Act’s remedial purpose. However, as we have indicated, sections 22 — 306 and 22 — 307, applying specifically to policemen and firemen, are more specific. Further, as the court indicated in Mitsuuchi v. City of Chicago (1988), 125 Ill. 2d 489, 494:

“[T]he Workers’ Compensation Act, and in our view the Pension Code provisions here at issue [sections 22 — 306 and 22— 307], are intended in part to protect the employee from the financial burden of either (1) bearing certain costs himself or (2) litigating the matter against his employer to a distant and uncertain conclusion. We note parenthetically that the supreme court of at least one other State has found that statutes governing disability, pension and death benefits for fire fighters and police officers serve purposes equivalent to workers’ compensation [citation], and that the court in Sweeney v. City of Chicago (1971), 131 Ill. App. 2d 537, observed, ‘The system created for the compensation of injured police officers under the Illinois Pension Code is analogous to that established by the Workers’] Compensation Act’ [citation].”

Thus, claimant’s argument that the Act controls over the Pension Code loses its force when it is apparent that the Pension Code, which provides death and disability benefits to policemen and firemen generally (to which claimant makes no suggestion Winnetka fire fighters are not entitled), serves the same purpose as the Act.

Finally, claimant argues that even assuming the Pension Code provisions at issue bar a workers’ compensation claim, Ordinance 3.14 is insufficient in complying with section 22 — 307 and, therefore, would not bar his claim under the Act. In making this argument, claimant focuses on the language of section 22 — 307 which provides that an ordinance so enacted bars common law or statutory rights to recover damages against a city or village “other than the payment of the allowances of money and of the medical care and hospital treatment provided in such ordinance.” (Ill. Rev. Stat. 1981, ch. IO8V2, par. 22— 307.) According to claimant, this language compels the result that only an ordinance providing for both “the payment of the allowances of money” and of “the medical care and hospital treatment” raises the bar. Because Ordinance 3.14 provides only for medical care and hospital treatment, and not for the payment of allowances of money, the ordinance is insufficient to invoke the bar. We think not.

The division of the Pension Code in which section 22 — 307 appears speaks to two types of ordinances. Sections 22 — 301 through 22 — 305 specifically deal with an ordinance providing the payment of allowances of money to the family or dependants of a policeman or fireman killed or fatally injured while in the performance of his duties. Section 22 — 306, on the other hand, speaks to the provision of medical care and hospital expenses in cases of accidental injury or death to a policeman or fireman while in the performance of his duties. Claimant makes no argument that the allowance of money which may be provided by ordinance is synonymous with medical care and hospital treatment, and nothing in section 22 — 307 or elsewhere in the division compels that the distinct and separate benefits must be provided for in the same ordinance or that a municipality must provide both types of benefits. Thus, we hold that the failure of the Village to provide for the payment of allowances of money in Ordinance 3.14 does not cause the Village to lose the bar section 22 — 307 clearly provides, and create a “gap” in coverage which the Act may fill, as claimant contends.

For the foregoing reasons, the order of the trial court is reversed.

Reversed.

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


author: JUSTICE CAMPBELL

text:
      In re MARRIAGE OF HELEN J. OLBRECHT, Petitioner-Appellant, and THEODORE M. OLBRECHT, Respondent-Appellee.
    First District (1st Division)
    Nos. 1—90—0828, 1—90—2897 cons.
    Opinion filed May 11, 1992.
    Rehearing denied August 26, 1992.
    Michael D. Canulli, of Oak Brook, for appellant.

      Brooks, Hankins & Swiatkowski, Ltd., of Orland Park (George W. Brooks, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Petitioner Helen Olbrecht appeals from several portions of a judgment of dissolution of her marriage to respondent, Theodore (Ted) Olbrecht. On appeal, Helen contends that the trial court erred in: (1) classifying the home in which she and Ted lived as nonmarital property; (2) ruling that $20,000 paid toward the home was not a wedding gift; (3) ruling that she was not entitled to reimbursement for contribution to nonmarital property; (4) ruling that she was not entitled to a portion of the insurance proceeds for the fire-destroyed garage; (5) denying her emergency motion to void the deed of conveyance; and (6) awarding joint custody of their three children. Ted cross-appeals from the judgment order requiring him to pay Helen’s attorney fees and costs of $6,000. For the following reasons, we affirm in part and reverse and remand in part.

The following facts are relevant to this appeal. Helen and Ted were married on October 2, 1976. At the time of the dissolution proceeding, Helen was 34 and Ted was 40. Three children were born of the marriage, James, Michelle, and Michael, ages 11, 9 and 7, respectively. In June 1988, the parties separated and Ted moved into his own apartment.

Helen and Ted began dating when Helen was a 15-year-old high school sophomore and Ted was 21 and working full time. The parties became engaged in April 1974 and began to discuss where they were going to live after the marriage. At that time, both Helen and Ted expressed a preference for living in a house rather than an apartment.

In the spring of 1976, Helen, Ted and Ted’s aunt, Harriet Snie-ehowski, first discussed purchasing a home wherein Harriet could live with Ted and Helen in an in-law, i.e., separate apartment, arrangement. Helen testified that Harriet said she would give Ted and Helen $20,000 as a wedding gift, to be used as a down payment for a home that the parties could all share. Harriet indicated that she wanted her name on the title to the house and the parties agreed. The next day, Helen, Ted and Harriet met with a realtor and the four began to look at properties. When they viewed the home at 5129 West 22nd Place, Helen told Ted “it would be a perfect place to grow a family,” and they agreed to draw up a contract. At that time, Ted told Helen privately that Harriet would be uncomfortable if Helen’s name appeared on the title before they were married. Helen did not object to this arrangement based on Ted’s assurances that she could trust him.

In June 1976, Helen and Harriet attended the closing on the house because Ted was working. Helen signed Ted’s name on the closing documents. The home was purchased for $43,900 and title was drawn in Ted and Harriet’s names as joint tenants. Harriet put down $4,000 for earnest money and the remaining $16,000 as a down payment on the house. Ted did not contribute any money from his personal funds. In July 1976, Helen moved into the house some time prior to Ted, and the parties lived together in the house until and after their wedding in October 1976.

Helen stated that during the entire 13 years of the marriage, she and Ted paid the mortgage out of a joint checking account, and Harriet gave them cash for half of the mortgage payment. There was no written agreement regarding Harriet’s cash payments. At no time did Harriet indicate that Ted and Helen would have to repay the $20,000.

Helen stated that Ted considered Harriet’s money “rent” and that Harriet never took the position that she was the sole owner of the property. As evidence of Harriet’s recognition that Helen owned the home, Helen submitted a note she wrote to Harriet after Ted moved out:

“Please note I do not want anyone in my house when I am not home, including the basement. Make an appointment with me so I will be at home next week one day for the electrician to come through. I have to be home and no one comes in. P.S. Thanks for your consideration.”

Helen stated that her brother helped with remodeling and construction on the house and that she and Ted spent approximately $10,000 on home improvements. Harriet paid to fence in the yard.

In 1988, vandals set fire to the garage on the property and Helen signed a complaint against them and went to court. Neither Ted nor Harriet participated in Helen’s complaint or went to court. An insurance check for $2,936.54 was issued in Ted’s and Harriet’s names; Ted received the check and signed it over to Harriet.

Ted testified that he, Helen and Harriet looked at properties in the spring of 1976 with the thought that Harriet would live upstairs and Ted and Helen would live on the main level. He admitted that Harriet never requested repayment of the $20,000, but stated that the money was not a wedding gift:

“It [buying a house] was an opportunity for me, because I was just getting married and I was really worried about it, I was looking at apartments they were all more than $122 at that time.
This was a great deal for me because it was three bedrooms. I felt that when we had children in the future, they can go in the bedrooms, there was a lot of room.”

Ted admitted that Helen moved into the house before he did. Ted stated that he arranged with Harriet that she would pay one half the mortgage, utilities and insurance on the house; however, the utilities were in Ted’s name only, and the agreement was never reduced to writing. Ted described his “half” payment as “rent” payable to Harriet, although he admitted that there was no lease concerning his and Helen’s occupancy of the property, that he referred to the payments as mortgage payments, and that the payments are described as “mortgage payment” on the memorandum line of cancelled checks written on Ted and Helen’s joint checking account. Ted also admitted that he took deductions on his income taxes for interest paid on a home mortgage throughout the years and claimed real estate taxes paid on the property every year. Ted admitted that Harriet never deducted any portion of the home on her taxes. Ted stated that he and Helen spent $8,000 to $10,000 on home improvements and that $8,000 came from a workers’ compensation settlement he acquired after he broke his wrist on the job.

Harriet testified that in 1976 she was 62 years old, and she asked Ted if he would sign his name to a loan for a house because she was afraid she could not get a mortgage loan on her own. She admitted that she never attempted to acquire a loan on her own. Harriet stated that she paid $20,000 toward the purchase of the property, and although she never considered it a gift, there was nothing in writing requiring Ted and Helen to repay the money. Harriet also stated that Ted and Helen did not sign a lease and that she never had any discussion with Ted about not wanting Helen’s name on the title. Each month, Harriet made payments in cash to Ted and Helen for an amount representing half of the mortgage payments. She stated that she did not consider the money as rent. Harriet acknowledged the dispute over the ownership of the house. She stated that she owned half of the house and that if the house was sold:

“Half of the house would belong to me and the other half would go between the two. Between him [Ted] and his wife.”

The record indicates that Harriet was never brought into the proceedings by either party through a third-party complaint.

The trial court determined the house to be nonmarital property and awarded the house to Ted. In his ruling, the trial judge stated, “It is undisputed that sometime after the marriage Ted, Helen and Harriet moved into the premises at 5129 West 22nd Place in Cicero, Illinois” (emphasis added). The trial court found that the $20,000 was not a gift, that Helen was not entitled to reimbursement through contribution to the property and that she was not entitled to share in the insurance proceeds resulting from the fire destruction of the garage because the property was nonmarital. The trial court awarded the parties joint custody of the children.

Following entry of the order of dissolution, Ted executed a quitclaim deed, conveying his interest in the Cicero property to Harriet. The deed was recorded on May 15, 1990. On August 17, 1990, the trial judge entered an order denying Helen’s emergency motion to enjoin the sale of the property, finding that the trial court lacked personal jurisdiction over Harriet. Helen’s subsequent emergency motion to void the deed of conveyance was denied by the trial court in an order entered on August 20. On August 30, this court entered a stay of judgment pending appeal as relating to the ownership, possession, or interest in the Cicero property. Helen’s timely appeal followed.

The first issue is whether the court erred in determining that the property located at 5129 West 22nd Place, Cicero, Illinois, was non-marital property. Helen contends that the property was purchased in contemplation of marriage and therefore is marital property. Helen also argues that the $20,000 down payment made by Harriet toward the purchase of the property was a wedding gift. Ted argues that the property is nonmarital because his Aunt Harriet acquired the house prior to the marriage. Ted contends that the $20,000 was not a gift and that he has never maintained any interest in the property, even though his name appears on the title in joint tenancy.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) provides:

“(a) For purposes of this Act, ‘marital property’ means all property acquired by either spouse subsequent to the marriage, except the following, which is known as ‘non-marital property’:
(6) property acquired before the marriage;
(7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section.” Ill. Rev. Stat. 1987, ch. 40, par. 503(a).

However, in prior cases, this court has looked at the intent of the parties to determine that property acquired “in contemplation of marriage” is marital property, even if purchased prior to the marriage. (See In re Marriage of Jacks (1990), 200 Ill. App. 3d 112, 558 N.E.2d 106; In re Marriage of Ohrt (1987), 154 Ill. App. 3d 738, 507 N.E.2d 160; In re Marriage of Matters (1985), 133 Ill. App. 3d 168, 478 N.E.2d 1068; In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065.) In these cases, the courts looked to the totality of the circumstances, finding relevant the following factors: the proximity in time between acquisition of the property and the marriage, whether equity in the property was acquired with marital funds, evidence that the parties intended the property to serve as the marital home, whether the parties’ names appear on the offer sheet, and the manner in which title is held (although this last factor is not determinative and may be of no consequence in a given case).

In Jacks, the parties viewed the house with a realtor, and the husband stated they intended to purchase a four-bedroom home because the wife had four children from a previous marriage. Both parties’ names appeared on the offer sheet, while title to the home was in the husband’s name only. The home was purchased with no money down and $1,000 earnest money paid by the husband. The parties married approximately one hour after the closing on the home. All mortgage payments were made with marital funds. The parties lived in the house for four years. The court examined the above factors and found that the property purchased prior to marriage but in contemplation of marriage was marital property. In making its determination, the court held that the timing and manner of holding title is not determinative. Jacks, 200 Ill. App. 3d at 118.

In Stallings, the parties purchased a home less than two months before their marriage. The wife paid $5,000 for a down payment from her own funds and the balance was financed by a loan. The parties took title as tenants in common, and the mortgage payments were made from marital assets. The court found the home a marital asset, holding that the property was purchased in contemplation of marriage and with the intent that it would be the family home. The court noted that all the equity in the home was acquired with marital funds and rejected the notion that section 503 of the Act arbitrarily categorizes all property acquired prior to the marriage as nonmarital property. Stallings, 75 Ill. App. 3d at 99.

In Matters, the parties accompanied a real estate agent to look at a home prior to marriage. Both parties signed the offer sheet to purchase the home. The husband borrowed $5,000 from the wife’s father to make the down payment. Title to the house was placed in trust with the husband named as the sole beneficiary. The couple lived in the house for a year prior to the marriage and mortgage payments were made from their joint account. The court affirmed a finding that the home was a marital asset.

In Ohrt, the property was purchased approximately two months prior to the marriage. The funds for the down payment were borrowed. Only the husband’s name appeared on the title, note and mortgage. The court found the property marital, noting that the property was purchased with the idea that it would be the marital residence, and found “it of no consequence that the property was purchased by defendant prior to the marriage or that title was solely in his name.” Ohrt, 154 Ill. App. 3d at 742.

In the present case, the record indicates that Helen accompanied Ted, Harriet and the realtor on house-hunting trips. Helen testified that when the four of them viewed the house, they agreed that the house would be “a perfect place to grow a family.” Ted testified that he and Helen could not afford a house on their own and that finding a place with an arrangement for Harriet was a “great deal” because the house had three bedrooms which would accommodate future children. The record indicates that although Helen’s name did not appear on the offer sheet and that title was held by Ted and Harriet in joint tenancy, Helen represented Ted at the closing and signed his name to the closing documents.

The record further indicates that the house was purchased at the end of June 1976. Helen and Ted moved into the house in July 1976, several months prior to their wedding, and Helen moved into the house before Ted. The parties married at the beginning of October 1976. In classifying the property, the trial court incorrectly stated that the parties moved into the house after their marriage. The record also indicates that Harriet made the down payment for the house and that none of Ted’s personal funds were used.

The record contains checks for the entire amount of the mortgage written on Ted and Helen’s joint account. The memorandum lines on these checks contain the notation “mortgage payment.” Although Ted claims he paid rent to Harriet, nothing in the record supports that claim. The record further indicates that Ted took deductions for interest on the property and paid real estate taxes on the property. There is nothing in writing authorizing Ted to pay taxes and take deductions on Harriet’s property, nor is there anything in the record indicating that Helen was ever told that she had no rights to the property during the marriage.

In a nonjury trial, where there is conflicting testimony, a trial court’s findings will be disturbed only if they are against the manifest weight of the evidence. (Stallings, 75 Ill. App. 3d at 100.) Based upon the totality of the above factors, the trial court’s judgment that the property was nonmarital was contrary to the manifest weight of the evidence.

However, even considering the totality of the circumstances, the record in the present case lacks evidence as to the marital nature of the entire home because Harriet’s interest in the home has not been adequately addressed. Where the evidence as to the marital nature of property is unclear and inconclusive so as to be lacking, this issue must be further determined on the basis of competent evidence on remand. In re Marriage of Cuisance (1983), 115 Ill. App. 3d 551, 557, 450 N.E.2d 1302.

The record suggests that Harriet was a joint tenant in property that was part of the subject matter of the litigation. The record further indicates that the mortgage, repairs and improvements and insurance were paid both by Harriet and out of the parties’ marital funds, evidence of a joint tenancy. Harriet stated that if the property was sold, “half of the house would belong to me and the other half would go between the two. Between him [Ted] and his wife.”

Thus, the classification and subsequent distribution of the property inevitably affected Harriet’s interest as a necessary party. A necessary party is one who has a legal or beneficial interest in the subject matter of the litigation and will be affected by the action of the court. (In re Marriage of Peshek (1980), 89 Ill. App. 3d 959, 966, 412 N.E.2d 698.) A trial judge in the domestic relations division of the circuit court constitutionally has jurisdiction to hear all justiciable matters. (In re Marriage of Schweihs (1991), 222 Ill. App. 3d 887, 894-95, 584 N.E.2d 472; Peshek, 89 Ill. App. 3d at 967.) Consideration must be given to addressing the claims of a third party to alleged marital property. See Schweihs, 222 Ill. App. 3d at 894; Peshek, 89 Ill. App. 3d at 965; Ill. Rev. Stat. 1987, ch. 40, par. 403(d).

Neither party elected to join Harriet as a party to the litigation. Therefore, it may follow that the trial court may have been limited in its ability to make a complete determination regarding the property, since any determination may have adversely affected the rights of Harriet. From the evidence presented, the trial court erroneously ruled that the house was nonmarital property and obviated any determination as to any interest pertaining to Harriet.

Under these circumstances, a new hearing is necessary to afford the trial court the opportunity to make a complete determination of the alleged adverse interests of the parties and the alleged third-party claim, if any, of Harriet. We therefore vacate the trial court’s judgment regarding the classification and distribution of the property, vacate the trial court’s orders of August 17 and August 20 regarding Helen’s motions to enjoin the sale of the property and void the deed of conveyance, and vacate our stay of judgment pending appeal.

In view of our decision, we find it unnecessary to address Helen’s claim relating to the insurance proceeds, since we hold that the questions of the classification and distribution of the property must be further determined on remand to the trial court.

Helen’s further contention that the trial court erred in awarding joint legal custody of their three children does not merit further consideration on appeal, as she failed to cite any authority in support of her argument. Hassan v. Wakefield (1990), 204 Ill. App. 3d 155, 561 N.E.2d 1160; 134 Ill. 2d R. 341(e)(7).

We next consider Ted’s cross-appeal from the award of attorney fees of $6,000 to be paid by him to Helen’s attorney. Ted argues that Helen’s contract with her attorney is void because it provides for interest in excess of the legally allowed interest rate of 9%; that it provides for payment of attorney fees from any recovery, contrary to public policy, and that it provides for division of fees in violation of the Rules of Professional Conduct (134 Ill. 2d Rules 1.5(f), (g), (i)).

On appeal, the judgment of the trial court regarding payment of attorney fees will not be disturbed absent an abuse of discretion. (In re Marriage of Westerlund (1989), 193 Ill. App. 3d 56, 549 N.E.2d 820.) Ted has failed to show that the court abused its discretion in awarding Helen attorney fees.

Ted’s reliance on Licciardi v. Collins (1989), 180 Ill. App. 3d 1051, 536 N.E.2d 840, is misplaced. The trial court found that Helen's contract with attorney Michael Canulli did not provide for contingency fees, as did the contract in Lieciardi, but for hourly representation. The trial court also found that Canulli’s contract did not provide for interest in excess of the legal limit, but rather for a late payment fee of 1% a month on outstanding balances. In addition, the record indicates that Ted stipulated to Canulli’s hourly rate. The record further shows that Helen was never charged a late fee and that the case was never referred to co-counsel or another attorney.

We find no merit in Ted’s further contention that the petition for attorney fees fails to properly itemize the dates set forth for rendering of services in accordance with Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424. Kaiser merely requires that detailed time records be maintained containing facts and computations upon which charges are predicated, and that such information be contained in the petition for fees. The trial court found the petition sufficient to award fees based on documents produced at trial.

For the above reasons, the judgment of the trial court is affirmed pertaining to the dissolution, the custody, and the attorney fees, and reversed and remanded for further proceedings to classify and distribute the property.

Affirmed in part; reversed and remanded in part.

BUCKLEY, P.J., and MANNING, J., concur.

      Harriet appeared at trial pursuant to a subpoena served upon her by Helen’s attorney, Michael Canulli. Harriet previously testified at a deposition in this case, also pursuant to subpoena by Mr. Canulli.


text:
    WATERFRONT ESTATES DEVELOPMENT, INC., Plaintiff-Appellant, v. THE CITY OF PALOS HILLS et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 1—90—3502, 1—90—3542 cons.
    Opinion filed June 15, 1992.
    Rehearing denied August 26, 1992.

      Coffield, Ungaretti, Harris & Slavin, of Chicago (J. Timothy Eaton and Daniel P. Albers, of counsel), for appellant.
    Walsh, Neville, Pappas & Mahoney, of Chicago (Linda M. Mahalko and George Pappas, of counsel), for appellees City of Palos Hills, City Council of City of Palos Hills, and Appearance Commission of City of Palos Hills.
    Sosin & Schuster, Ltd., of Alsip (Naomi H. Schuster, of counsel), for other appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Waterfront Estates Development, Inc. (WED), appeals an opinion and order of the circuit court of Cook County denying WED’s motion for judgment on the pleadings on counts I and II of WED’s complaint for a declaratory judgment. These counts sought a declaration that an ordinance regulating the external appearance of certain property and establishing the defendant appearance commission (Commission) of defendant City of Palos Hills (City) was unconstitutional. For the reasons which follow, we reverse and remand the case for proceedings consistent with this opinion.

The record indicates that on April 5, 1990, WED filed a complaint for declaratory judgment and administrative review against the City in the circuit court of Cook County. On July 2, 1990, the City, city council and Commission filed an answer admitting certain allegations of WED’s complaint. The following facts are undisputed, based on the pleadings in this case.

In 1989, the City passed an ordinance known as the “Palos Hills Appearance Regulation” (PHAR). The PHAR creates an Appearance Commission, which has the power to hold hearings on the issuance of certificates of appropriateness (“Certificates”) of external appearance in connection with applications for building permits. The PHAR provides that no building permit may issue for any development subject to the PHAR until such a Certificate is issued.

WED is the legal owner of certain real property located in the City. WED planned to build two three-story condominium units on this property. Before January 30, 1990, WED submitted a set of plans for these condominiums to the City for zoning approval, building permit approval and external appearance approval. The plans met all applicable zoning and building code requirements.

The Commission held hearings on WED’s application for a Certificate on December 12, 1989, January 30, 1990, February 6, 1990, and February 12, 1990. In response to the stated concerns of the Commission, WED submitted an amended set of plans that met City zoning and building code requirements. On February 12, 1990, the Commission recommended denying WED’s application due to incompatibility with existing development immediately adjacent to the proposed project, height of the proposed buildings and architectural design.

On March 8, 1990, WED presented its original and amended applications before the city council for approval. On March 15, 1990, the city council, acting on the Commission’s recommendation, denied WED’s applications. On March 19, 1990, WED submitted its plans to the City’s Department of Buildings for approval, which was denied because WED did not have a Certificate.

On July 13, 1990, WED moved for judgment on the pleadings on counts I and II of its complaint. Count I sought a declaration that the PHAR was unconstitutionally vague and unconstitutionally delegated legislative power to the Commission. Count II sought a declaration that the PHAR unconstitutionally permits the rejection of applications based on aesthetic reasons alone. Both counts sought a declaration that WED’s application met all applicable zoning and building code requirements and an order requiring the City to issue building permits to WED.

On September 5, 1990, the trial court heard argument on WED’s motion. On November 7, 1990, the circuit court issued an opinion denying judgment on the pleadings as to counts I and II of the complaint. On December 7, 1990, the trial court granted WED’s motion to dismiss count III, which sought declaratory relief, and count IV, which sought administrative review, without prejudice; thus, these counts are not at issue in this appeal. WED filed a notice of appeal regarding counts I and II only on December 7,1990.

Initially, the City, city council and Commission contend that WED lacks standing to challenge the constitutionality of the PHAR. The standing doctrine is jurisdictional in nature. (See Dilanjian Taxi Services, Inc. v. City of Chicago (1990), 203 Ill. App. 3d 300, 303, 560 N.E.2d 1195, 1197.) Accordingly, this issue should be resolved before turning to the merits. (See Mar Cement, Inc. v. Diorio Builders, Inc. (1987), 153 Ill. App. 3d 798, 800, 506 N.E.2d 381, 383.) Although questions of standing are best considered in the context of summary judgment, such questions may be addressed in the context of judgment on the pleadings. Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 494, 524 N.E.2d 561, 575.

Generally, in order to have standing to challenge an ordinance, a plaintiff must have sustained, or be in immediate danger of sustaining, a direct injury resulting from enforcement of the ordinance. (See Pre-School Owners Association of Illinois, Inc. v. Department of Children & Family Services (1988), 119 Ill. 2d 268, 287, 518 N.E.2d 1018, 1027.) The City, city council and Commission contend that WED lacks standing because WED did not allege any economic injury resulting from the recommendation. However, economic injury is not the only type of injury that may support standing; for example, a real estate developer has standing to assert its right to be free of arbitrary or irrational zoning actions regarding a particular project. (Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), 429 U.S. 252, 262-63, 50 L. Ed. 2d 450, 462-63, 97 S. Ct. 555, 562.) Similarly, WED may assert an injury to its right to be free of vague or irrational appearance regulations.

Moreover, in an action for a declaratory judgment, there need only be an “actual controversy” between adverse parties and the party seeking the declaration must possess a personal claim, status or right capable of being affected by the grant of declaratory relief. (Berrios v. Rybacki (1989), 190 Ill. App. 3d 338, 343, 546 N.E.2d 651, 654.) The “actual controversy” rule does not require that the party seeking relief show an actual injury; it is sufficient to show that the underlying facts are not premature or moot. (Stone v. Omnicom Cable Television of Illinois, Inc. (1985), 131 Ill. App. 3d 210, 214, 475 N.E.2d 223, 226-27.) Such is the case here.

II

Turning to the merits, we note that this appeal concerns a motion for judgment on the pleadings (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(e)), which is similar to a motion for summary judgment insofar as both suggest that no material issue of fact exists. Judgment on the pleadings, however, must rely on the allegations of the complaint to establish the absence of material fact, whereas summary judgment may rely on affidavits and other documents. In addition, the well-pleaded allegations of the nonmoving party and inferences therefrom are taken as true. This court may review the question of whether an issue of material fact existed and, if not, whether the motion was properly granted or denied. See Mitchell v. Waddell (1989), 189 Ill. App. 3d 179, 182, 544 N.E.2d 1261, 1262-63.

In this case, neither party argues that there were genuine issues of material fact. We therefore turn to the issue of whether the trial court erred in denying WED’s motion. In this case, WED challenges the constitutionality of the PHAR in three ways: (1) as an unconstitutional delegation of legislative power; (2) as unconstitutionally vague and arbitrary; and (3) as not rationally related to the public health, safety or welfare.

Ill

When a legislative body grants an administrative agency discretionary authority to act, it must provide intelligible standards to guide the agency in the exercise of that authority. (Abatron, Inc. v. Department of Labor (1987), 162 Ill. App. 3d 697, 701, 515 N.E.2d 1336, 1339.) In contrast, when final approval of an administrative act rests with the legislative body, there is no delegation problem. (City of Chicago v. State & Municipal Teamsters (1984), 127 Ill. App. 3d 328, 339, 468 N.E.2d 1268, 1276.) Accordingly, when an administrative body acts in a merely advisory capacity, constitutional standards need not be met. (See Pacesetter Homes, Inc. v. Village of Olympia Fields (1968), 104 Ill. App. 2d 218, 224-25, 244 N.E.2d 369, 372.) Whether an administrative function is advisory or declaratory is judged by the nature of the act itself; the body’s title or characterization of its function is not controlling. Cf. R.S.T. Builders, Inc. v. Village of Bolingbrook (1986), 141 Ill. App. 3d 41, 44, 489 N.E.2d 1151, 1153 (appearance review committee performed declaratory function, despite village’s argument to the contrary); Pacesetter Homes, 104 Ill. App. 2d at 224, 244 N.E.2d at 372 (architectural advisory committee performed declaratory function).

In Pacesetter Homes, the architectural advisory committee’s approval of a permit was final, and the committee’s denial of a permit was final unless an applicant appealed to the village board. (Pacesetter Homes, 104 Ill. App. 2d at 224, 244 N.E.2d at 372.) In R.S.T. Build ers, the appearance review committee’s decisions were also binding unless appealed; moreover, the ordinance in that case provided that the committee would review and “approve” proposed development. (R.S.T. Builders, 141 Ill. App. 3d at 44, 489 N.E.2d at 1153.) In both cases, this court held that the administrative body performed a declaratory function. In this case, the trial court’s opinion does not refer to either of these cases, though the record shows that WED cited them.

Defendants maintain that the Commission performs an advisory function, relying on the following provision of the PHAR:

“SECTION U-. Approval by Mayor and City Council. The Appearance Commission is an advisory commission only. All rulings of the Commission shall be submitted to the Mayor and City Council for final decision. The Commission shall file a transcript of the proceedings along with its findings with the Mayor and City Council on or before fifteen (15) days after it makes its decision. With or without a hearing but by a majority vote, the Mayor and City Council may overrule, approve, modify or amend, wholly or in part, the Commission’s findings.”

WED cites other sections of the PHAR in support of its argument:

“SECTION 10. Regulatory Powers of Commission Over External Architectural Features of Buildings and Structures.
(a) No building or other permit, otherwise required under the ordinances of the City, for the *** construction *** of any building or structure in a multiple dwelling *** zoning district shall be issued by the Building Commissioner unless a Certificate of Appropriateness has been granted by the Appearance Commission ***.
(b) Certificate of Appropriateness — Preliminary Consideration. The Appearance Commission shall, at the written request of a prospective applicant ***, give consideration to preliminary exterior drawings *** and materials pertaining to a specific project before a formal application is filed, and shall provide such advice *** and recommendations on matters pertaining to aesthetics as it may deem necessary to guide the prospective applicant in the development of a plan which would comply with the requirements and purposes of this Ordinance. The Commission shall act in an advisory capacity only with regard to preliminary plans ***, and shall not participate in the development of the basic concept, plans or drawings. All hearings on preliminary plans are to be public and held in accordance with the provisions and requirements provided for in Section 14 (Final Hearings). The Commission shall issue a preliminary approval of the Certificate of Appropriateness upon determining the preliminary *** materials to be appropriate and compatible with the character of the immediate neighborhood and upon determining that the objective of this Ordinance has been satisfied. Approval will be irrevocable and the issuance of the Certificate of Appropriateness shall be mandatory upon application, unless the final presentation does not comply in all respects with the preliminary presentation upon which the preliminary approval was based.
SECTION 12. Action of Appearance Commission. *** The Commission shall make its decision within fifteen (15) days after the hearing is closed and shall issue to the Building Commissioner a Certificate of Appropriateness, unless the Commission finds that the said plan does not conform to this Ordinance and that the proposed building or structure will be inappropriate to, or incompatible with, the character of the surrounding neighborhood and cause substantial depreciation in property values ***.”

When construing an ordinance, a court should consider each section of an ordinance in connection with every other section, rather than isolating sections. (See Castaneda v. Illinois Human Rights Comm’n (1989), 132 Ill. 2d 304, 318, 547 N.E.2d 437, 443.) Sections 8(d) and 10(a) of the PHAR indicate that it is the Commission that grants or denies Certificates. Section 10(b) indicates' that preliminary hearings are to be public and “held in accordance with the provisions and requirements provided for in Section 14 (Final Hearings).” Yet section 14, while referring to a “final decision,” states that the mayor and city council may act with or without a hearing. In addition, it is section 11 of the PHAR, rather than section 14, that is entitled “Certificate of Appropriateness — Final Hearings.” Section 11 outlines the procedure of the Commission without mentioning the mayor or the city council. Section 10(b) also provides that if a proposed project complies in every respect with a plan for which preliminary approval was given by the Commission, approval of the project will be irrevocable and issuance of a Certificate shall be mandatory. Section 12 requires the Commission to issue a Certificate unless certain conditions occur.

Given the language of the PHAR as a whole, we hold that the Commission performed a declaratory function in granting or denying Certificates. The sole contrary section of the PHAR is section 14. However, although section 14 is entitled “Approval by Mayor and City Council” and states that the Commission’s decisions “shall be submitted to the Mayor and City Council for final decision,” the plain language of section 14 does not require the mayor and city council to take any action whatsoever.

Defendants argue that there is no delegation problem so long as the administrative body is required to submit its decisions to the legislative body for a final determination. (See Kotrich v. County of Du Page (1960), 19 Ill. 2d 181, 187, 166 N.E.2d 601, 605.) The argument is not persuasive for three reasons. First, section 14 of the PHAR includes the mayor in determining whether a majority has voted to alter a Commission ruling. The City, city council and Commission conceded at oral argument that the mayor is an executive official. The inclusion of the mayor in section 14 therefore means that the final approval of those rulings is not actually left to the legislative body, as defendants contend. Rather, it is left to a body composed of the members of the city council and the mayor.

Second, section 14 may unconstitutionally delegate legislative power to an executive official because the PHAR provides no standards governing the mayor’s vote.

Third, even if the mayor were a legislator, the cases defendants rely upon in this case (see Pacesetter Homes, 104 Ill. App. 2d at 225, 244 N.E.2d at 372, citing Petterson v. City of Naperville (1956), 9 Ill. 2d 233, 137 N.E.2d 371, and Village of Justice v. Jamieson (1955), 7 Ill. App. 2d 113, 129 N.E.2d 269) are distinguishable. In Petterson, the legislative body was required by law to take action once it was satisfied with the work of the administrative body. (Petterson, 9 Ill. 2d at 248, 137 N.E.2d at 380.) The PHAR does not require similar action. In Jamieson, a statute required that a zoning board of appeals hold a hearing before a county board could amend zoning regulations. (Jamieson, 7 Ill. App. 2d at 119, 129 N.E.2d at 271.) In this case, the Commission determines whether an application complies with an existing ordinance, rather than issuing a recommendation as to whether an exception to or amendment of that ordinance is warranted.

As the Commission performs a declaratory function, this case is controlled by this court’s previous decisions in Pacesetter Homes and R.S.T. Builders. In Pacesetter Homes, this court held that an ordinance requiring a committee to consider “excessive similarity, dissimilarity or inappropriateness in exterior design and appearance of property” in relation to nearby structures conferred unconstitutionally broad discretion on the committee. (Pacesetter Homes, 104 Ill. App. 2d at 220, 226, 244 N.E.2d at 370, 373.) In R.S.T. Builders, this court held that terms such as “harmonious conformance,” “inappropriate materials,” “durable quality,” “good proportions,” “exposed accessories” and “monotony of design” were inadequate standards for an appearance review committee. R.S.T. Builders, 141 Ill. App. 3d at 44, 489 N.E.2d at 1154.

In this case, section 12 of the PHAR requires that the Commission issue a Certificate unless it finds that three conditions are met. The first condition, conformance with the PHAR, is circular. The second condition, inappropriateness or incompatibility with the surrounding neighborhood, uses precisely the sort of criteria held inadequate in Pacesetter Homes and R.S.T. Builders. The third condition, causation of a substantial depreciation in property values, arguably may be valid (cf. Neef v. City of Springfield (1942), 380 Ill. 275, 280-81, 43 N.E.2d 947, 950 (considering depreciation in zoning context)), but cannot save the PHAR because the Commission must find that all three conditions are met in order to deny a Certificate.

In sum, the PHAR unconstitutionally delegates overbroad discretion to the Commission.

Furthermore, even if the Commission performed a merely advisory function, the PHAR criteria would be held unconstitutionally vague. A municipal ordinance is presumed valid. (City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 66, 349 N.E.2d 399, 412.) A party challenging an ordinance has the burden of proving its invalidity. (Village of Glenview v. Velasquez (1984), 123 Ill. App. 3d 806, 809, 463 N.E.2d 873, 875.) Although “we can never expect mathematical certainty from our language” (Grayned v. City of Rockford (1972), 408 U.S. 104, 110, 33 L. Ed. 2d 222, 228-29, 92 S. Ct. 2294, 2300), an ordinance which is so vague that persons of common intelligence must necessarily guess at its meaning is unconstitutional. See Broadrick v. Oklahoma (1973), 413 U.S. 601, 607, 37 L. Ed. 2d 830, 837, 93 S. Ct. 2908, 2913.

In this case, WED has amply demonstrated the vagueness of the PHAR criteria from the plain language of the ordinance itself. Defendants have offered no criteria by which a person of common intelligence may determine from the face of the PHAR whether a proposed project will be deemed “inappropriate” or “incompatible” to nearby property.

Defendants argue that the PHAR contains more specific criteria than those in section 12. For example, section 9(a) of the PHAR requires the Commission to consider the “external architectural features of proposed buildings as well as landscaping and site plans.” Section 16 defines an “external architectural feature” as:

“the architectural style and general arrangement of such portion of a building or structure as is designed to be open to view from a public street, place, or way, including the kind, color and texture of the building material. It incudes [sic] the types of widows [sic], doors, lights, attached or ground signs and other fixtures appurtenant to such portion which can be seen by the public.”

Pacesetter Homes, however, held that consideration of features nearly identical to those quoted above does not adequately limit an appearance commission’s discretion. (Pacesetter Homes, 104 Ill. App. 2d at 221-22, 244 N.E.2d at 370-71.) Nor do these provisions give adequate notice to those who must comply with the PHAR as to what is mandated. For example, the PHAR does not indicate what types or arrangements of windows are “inappropriate.”

The City, the city council and the Commission argue in their brief that to require further specification is “absurd.” These defendants state:

“The types of windows, doors and signs compatible in one neighborhood are incompatible in another. It is impossible for the CITY to specify in the ordinance what parts of a building or structure shall be considered for each and every neighborhood, especially since neighborhood appearances are constantly changing over time.”

As noted elsewhere in this opinion, the PHAR does not even attempt to define a “neighborhood.” Moreover, the above-quoted portion of the governmental defendants’ brief admits that what may be considered “compatible” or “incompatible” under this ordinance is “constantly changing.” Defendants have provided no answer to the question of how the Commission can exercise its power in a nonarbitrary, nondiscriminatory fashion under so-called standards which are constantly changing. Nor have defendants answered the question of how those subject to the PHAR, such as WED, are to comply with constantly changing standards.

Indeed, defendants’ arguments that the PHAR is not unconstitutionally vague appear to be limited to the presumption of constitutionality, the invocation of the standard of review and the bare assertion that the criteria of the PHAR meet that standard. The written opinion of the trial court determined that the PHAR was related to the public health, safety and welfare and inferred from that conclusion that the PHAR is not vague. However, the issue of whether the ordinance has a rational basis (an issue that this court need not reach in this case) is distinct from the issue of whether the ordinance is vague. Thus, defendants’ arguments do not alter our conclusion that the PHAR criteria are unconstitutionally vague.

IV

Given this conclusion, we turn to consider an appropriate remedy. WED argues that this court should order the City to issue building permits to WED without a remand. WED relies on Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N.E.2d 406, which involves mandamus relief. Mandamus is an extraordinary remedy and the party seeking the writ must show a clear legal right to the relief requested. (Machinis v. Board of Election Commissioners (1987), 164 Ill. App. 3d 763, 518 N.E.2d 270; Kramer v. City of Chicago (1978), 58 Ill. App. 3d 592, 374 N.E.2d 932.) Generally, a plaintiff seeking mandamus must show: (1) a clear right to have the requested act performed; (2) every material fact necessary to demonstrate that clear right; (3) the requested act is the duty of the defendant to perform; (4) the act is within the defendant’s power and authority; and (5) in the case of a private right, plaintiff’s demand and defendant’s refusal to act. (People ex rel. Endicott v. Huddleston (1975), 34 Ill. App. 3d 799, 802, 340 N.E.2d 662, 665.) In order to compel the issuance of a building permit by mandamus, plaintiff must show that the refusal to issue the permit was improper and that plaintiff complied with the proper application procedures. See People ex rel. Union National Bank v. City of Chicago (1973), 12 Ill. App. 3d 50, 52, 297 N.E.2d 768, 769.

In this case, WED’s complaint does not expressly seek mandamus. This court, however, may read the complaint as seeking mandamus relief because counts I and II seek the issuance of building permits — relief which is substantially similar to mandamus. See Mamolella v. First Bank (1981), 97 Ill. App. 3d 579, 583, 423 N.E.2d 204, 207.

The record indicates that the answer filed by the City, city council and the Commission admits that WED’s plans met all applicable building code and zoning requirements. The answer also admits that WED submitted its plans to the City’s Department of Buildings, but that permits were denied because WED lacked a Certificate.

Nevertheless, based on the allegations of WED’s complaint that are admitted by the City, city council and Commission in their answer, it remains unclear whether all of the prerequisites for the issuance of mandamus have been met. Thus, the issue is better resolved by the trial court on remand.

For all the aforementioned reasons, we reverse the decision of the circuit court of Cook County and remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

BUCKLEY, P.J., and MANNING, J., concur.

      Other defendants include the city council and individuals named as “objectors.” For the sake of brevity, this opinion will refer to “defendants” collectively.

      It should be noted that incompatibility may be a standard in other contexts. For example, the Municipal Code of 1961 provides that the zoning power of municipalities extends to the division of the municipality into districts and “to prohibit uses, buildings, or structures incompatible with the character of such districts.” (Ill. Rev. Stat. 1989, ch. 24, par. 11 — 13—1(7).) However, the Muniepal Code of 1961 also indicates the types of criteria which may be employed in the creation of different districts, e.g., the use of land and buildings, height and bulk of buildings, intensity of the use of lot area, area of open spaces and so on. (E.g., Ill. Rev. Stat. 1989, ch. 24, par. 11 — 13— 1(5).) Indeed, the Municipal Code of 1961 also grants express authority for the regulation of specified characteristics. (Ill. Rev. Stat. 1989, ch. 24, pars. 11 — 13—1(1), (2), (3), (4).) In contrast, the PHAR does not discuss the division of the City into different districts that have specified characteristics. Section 12 refers only to “the character of the surrounding neighborhood,” a term which is undefined in the PHAR. We note that one reason WED’s plans were rejected was height. The PHAR, however, provides no standard by which a commissioner (or anyone else) may determine whether a building is aesthetically “too tall” or “too short.”


author: JUSTICE McCORMICK

text:
    ROBERT COZZI, JR., a Minor, by his Father and Next Friend, Robert Cozzi, Sr., Plaintiff-Appellant, v. NORTH PALOS ELEMENTARY SCHOOL DISTRICT No. 117 et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—90—1773
    Opinion filed July 14, 1992.

      Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Keith A. Hebeisen, and Robert R Sheridan, of counsel), for appellant.
    Law Office of Cairns & Levin and Kralovec, Marquard, Doyle & Gibbons, Chartered, both of Chicago (Nancy Jo Arnold and Sara T. Wiggs, of counsel), for appellees.
   JUSTICE McCORMICK

delivered the opinion of the court:

Robert Cozzi, Jr., by his father and next friend, Robert Cozzi, Sr., sued North Palos Elementary School District No. 117 (North Palos), and Northwest Design Products, Inc. (Northwest Design), for personal injuries sustained in an accident on a school playground. The trial court granted defendants’ motions for summary judgment and plaintiff appeals.

Plaintiff’s second-amended complaint alleged that North Palos was negligent in maintaining the jungle gym and in failing to warn of the danger of the jungle gym. Plaintiff also alleged that North Palos’ actions amounted to wilful and wanton conduct. As against Northwest Design, plaintiff alleged that Northwest Design negligently designed the jungle gym, failed to warn of its danger and manufactured the jungle gym in an unreasonably dangerous manner.

Defendants filed motions for summary judgment based on the plaintiff’s deposition. In his deposition plaintiff stated that he was injured while playing on a jungle gym manufactured by Northwest Design Products. He was 11 years old at the time of the incident, which occurred after school hours on the grounds of a school in North Palos Elementary School District. Plaintiff testified that he was sitting on the second level from the top of the jungle gym when he heard someone call his name. He turned his head to look and slipped backwards, catching other bars underneath his armpits. Plaintiff kept twirling to get back to a position where he could handle himself. He tried to grab the bar, but he panicked, and fell onto the wood chips under the jungle gym. Plaintiff also testified that the jungle gym was normal, not icy or wet, and that he knew that he could hurt himself if he fell off the jungle gym.

In opposition to defendants’ motions for summary judgment, plaintiff did not present affidavits or other evidence to the court. Defendants’ motions were granted. Plaintiff subsequently filed a motion to vacate and reconsider and attached an affidavit stating that he had fallen because of the slipperiness of the bars. The court denied the motion.

On appeal, plaintiff contends that summary judgment was improperly granted because a genuine issue of material fact exists regarding the cause of his accident.

The standards governing whether a summary judgment should be granted are set forth in section 2 — 1005(c) of the Illinois Code of Civil Procedure, which provides in relevant part:

“The judgment sought shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (III. Rev. Stat. 1987, ch. 110, par. 2— 1005(c).)

Summary judgment is a remedy that must be awarded with caution in order to avoid preempting a litigant’s right to trial by jury or his right to fully present the factual basis of a case where a material dispute may exist. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339.) It is well established that, on a motion for summary judgment, the trial court must construe the pleadings, affidavits, depositions, and admissions on file against the moving party and in favor of the opponent of the motion. (Wysocki, 124 Ill. App. 3d at 164.) However, “[w]hile a plaintiff responding to a motion for summary judgment is not required to prove his case at the summary judgment stage, he must, nevertheless, present some evidentiary facts to support the elements of his claim.” Phillips v. United States Waco Corp. (1987), 163 Ill. App. 3d 410, 416, 516 N.E.2d 670.

I. NORTH PALOS ELEMENTARY SCHOOL DISTRICT No. 117

The general rule regarding the liability of an owner or occupier of land upon which a child is injured was articulated in Kahn v. James Burton Co. (1955), 5 Ill. 2d 614, 126 N.E.2d 836. The court held that the ordinary principles of negligence determine a landowner’s liability. (Kahn, 5 Ill. 2d at 625.) Therefore, to survive summary judgment, plaintiff must present evidence to show that defendant had a duty to plaintiff, breached that duty, and the breach proximately caused plaintiff’s injury.

Where the owner or occupier knows, or should know, that young children frequent the area where a dangerous condition is present, and because of their immaturity, the children are not able to appreciate the risk involved, defendant has a duty to remedy the dangerous condition. (Cope v. Doe (1984), 102 Ill. 2d 278, 286, 464 N.E.2d 1023.) There is no duty to remedy the condition if it involves risks that children would be expected to appreciate and avoid. Alop v. Edgewood Valley Community Association (1987), 154 Ill. App. 3d 482, 485, 507 N.E.2d 19.

In Alop, a six-year-old child fell off a playground slide, onto an asphalt surface, and sued the owner and manager of the playground. Summary judgment was granted for the defendants and plaintiff appealed. The appellate court affirmed the trial court, concluding that the slide on the asphalt surface did not create a dangerous condition because the risk the slide presented to children was an obvious one. Consequently, the court found that defendants did not owe a duty to plaintiff to have placed the slide on a softer surface than asphalt.

The facts of the case at bar are similar to those of Alop. Both cases involve appeals from summary judgments, and both plaintiffs fell off recreational equipment that was of some height. The plaintiff in the instant case was older and could appreciate the risk of playing on the 11-foot jungle gym more than the six-year-old in Alop could appreciate the risk of playing on a slide.

The court followed Alop in Young v. Chicago Housing Authority (1987), 162 Ill. App. 3d 53, 515 N.E.2d 779, where a five-year-old child fell from monkey bars onto a concrete surface. The court applied the reasoning of Alop, stating that “the same commonsense principle applies to both cases: if you fall, you might get hurt. This is an obvious risk that children generally encounter in their daily lives when at a playground.” Young, 162 Ill. App. 3d at 57.

Plaintiff contends that the trial court’s reliance on the holdings in Alop and Young is misplaced. According to plaintiff, North Palos owed him a duty to remedy the condition of the jungle gym, and cited to Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 520 N.E.2d 62, as support. In Scarano, a young boy fell off of a slide. He alleged that the slide was defective because the handrails were worn, slippery and loose. The court found that the defendant had a duty to remedy the condition of the handrail. The court concluded that a slide with defective handrails was a greater risk that children would normally not appreciate. (Scarano, 166 Ill. App. 3d at 190.) The case at bar is distinguishable from Scarano in that it involves an obvious danger, while Scarano involved a latent defect of a protective device. The bars on the jungle gym enable children to swing and move about. This is the purpose of the jungle gym. The danger involved in doing so was apparent.

In addition to allegations of negligence, plaintiff contends that defendant’s conduct was wilful and wanton. Wilful and wanton conduct can be established once there is a finding of duty, breach of that duty, proximate cause and an intent to injure plaintiff or reckless disregard for his safety. (Scarano, 166 Ill. App. 3d at 187.) In the case at bar, there can be no finding of wilful and wanton misconduct in the absence of a duty owed plaintiff by defendant.

II. NORTHWEST DESIGN, INC.

Plaintiff brought claims for negligence and strict liability against Northwest Design. The duty and breach of that duty are the same in both negligence and strict products liability claims. (Phillips, 163 Ill. App. 3d at 417.) Plaintiff contends that Northwest Design was negligent because of its failure to warn of the dangers of using the jungle gym and negligent in designing the gym at such a height.

In a product liability cause of action based on ordinary negligence, a plaintiff must show that a defendant owed him a duty of reasonable care and either failed to do something which a reasonably careful person would have done or did something which a reasonably careful person would not have done. (Sanchez v. Bock Laundry Machine Co. (1982), 107 Ill. App. 3d 1024, 1028, 438 N.E.2d 569.) The determination of whether a duty to warn exists is a question of law and not of fact. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 466, 343 N.E.2d 465.) “Generally, a duty to warn exists when there is unequal knowledge and the defendant possessed with such knowledge knows or should know that harm might occur if no warning is given.” (McColgan v. Environmental Control Systems, Inc. (1991), 212 Ill. App. 3d 696, 700, 571 N.E.2d 815.) However, warnings are not required if the danger involved is obvious and generally appreciated. McColgan, 212 Ill. App. 3d 696, 571 N.E.2d 815.

As previously discussed, the fact that one could fall from climbing heights such as the jungle gym was obvious. Plaintiff did not produce evidence which could support a finding that Northwest Design had a duty to warn plaintiff of the danger of playing on the jungle gym.

A manufacturer can be liable for the negligent design of a product that imposes an unreasonable risk of harm upon the user. (Sanchez, 107 Ill. App. 3d at 1028.) A manufacturer is under a nondelegable duty to produce a product which is reasonably safe for its intended and reasonably foreseeable uses. Cornstubble v. Ford Motor Co. (1988), 178 Ill. App. 3d 20, 24, 532 N.E.2d 884.

Plaintiff failed to provide evidence to show that defendant failed to produce a reasonably safe jungle gym, or that the jungle gym was unreasonably dangerous for its foreseeable and intended users. Plaintiff relies on the fact that he slipped to establish that the jungle gym was unreasonably dangerous. No presumption of negligence arises from the mere happening of an accident. Rotche v. Buick Motor Co. (1934), 358 Ill. 507, 516, 193 N.E.2d 529.

To recover in an action for strict liability, a plaintiff must prove (1) that an injury resulted from a condition of the product; (2) that the condition was unreasonably dangerous; and (3) that the condition existed at the time the product left the manufacturer’s control. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 210, 384 N.E.2d 368.) Plaintiff contends that the lack of warnings caused his injury, but his deposition contradicts this claim. In Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 247 N.E.2d 401, the Illinois Supreme Court defined products as unreasonably dangerous if they failed to perform in the manner that was reasonably expected in light of their nature and intended function. (Dunham, 42 Ill. 2d at 342.) Jungle gyms are recreational equipment to be used as such. In this case, there was no evidence presented to show that it failed to perform its function.

Finally, plaintiff failed to present evidence that the jungle gym was unreasonably dangerous when it left Northwest Design’s control. A similar proof problem arose in Miller v. Verson Allsteel Press Co. (1984), 126 Ill. App. 3d 935, 467 N.E.2d 983, where the plaintiff in that case was injured while working a punch press. The plaintiff in Miller sued the manufacturer to recover for his injuries, but he failed to present any evidence to satisfy his burden of proving that an unreasonably dangerous condition existed when the press left the manufacturer’s control. Consequently, the court affirmed summary judgment granted by the trial court.

Plaintiff relies on Pell v. Victor J. Andrew High School (1984), 123 Ill. App. 3d 423, 462 N.E.2d 858, to support its contention that defendant should be held strictly liable in tort for manufacturing and selling the jungle gym without warnings and instructions. The plaintiff in Pell suffered injuries as a result of somersaulting off a trampoline in gym class and sued the manufacturer on the theory of strict liability. In Pell plaintiff alleged that an unreasonably dangerous condition existed because of the defendant’s failure to adequately warn of the equipment’s propensity to cause severe spinal cord injuries if it was used for somersaulting without a safety device operated by a trained instructor. In affirming the jury verdict, the court determined that there was sufficient evidence from which the jury could conclude that the manufacturer’s warnings were ineffective.

The case at bar is distinguishable because the Pell case involved an insufficient warning of danger its users might not recognize while this case involves a danger even children recognize. In addition, unlike the plaintiff in Pell, the plaintiff in the instant case did not present any evidence to prove that the equipment was unreasonably dangerous.

The trial court properly found that defendants did not owe the alleged duties to plaintiff, that there were no genuine issues as to any material fact and that defendants are entitled to summary judgment as a matter of law.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN, P.J., and DiVITO, J., concur.