author: JUSTICE MURRAY

text:
    IK CORPORATION, Plaintiff-Appellant, v. ONE FINANCIAL PLACE PARTNERSHIP et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—88—1095
    Opinion filed June 15, 1990.
    Rehearing denied July 25, 1990.

      Keevan D. Morgan, of Morgan & Bley, Ltd., and William J. Harte, of William J. Harte, Ltd., both of Chicago, for appellant.
    Stephen P. Bedell, of Gardner, Carton & Douglas, of Chicago, for appellee First Options of Chicago, Inc.

      Gerald L. Angst and Maripat Flood, both of Sidley & Austin, of Chicago, for other appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, IK Corporation (IK), appeals from the decision and order of the trial court dismissing with prejudice plaintiffs seven-count complaint for failure to state a cause of action, when plaintiff failed to plead the essential formation elements of a commercial real estate contract. Plaintiff filed a seven-count amended complaint against One Financial Place Partnership (lessor), Robert Wislow, a managing partner of the lessor, U.S. Equities Realty, Inc., an exclusive leasing agent for the lessor, One Financial Place Corporation, an authorized agent of the lessor, Janet Burch, an agent and inside real estate broker for the lessor, and First Options of Chicago, Inc., the lessor’s second largest tenant. The defendants filed a motion to dismiss. The trial court granted the motion with prejudice. This appeal followed. For the following reasons we affirm.

The hearing on defendants’ motions to dismiss plaintiff’s first amended complaint revealed the following.

On September 23, 1983, defendant First Options of Chicago, lessor’s second largest tenant, leased floors 15 through 18 of the One Financial Place Building and obtained the right to lease additional space on the 19th floor. On February 21, 1986, First Options also leased space on the 14th floor to accommodate its expanding operations. In July 1986, First Options purchased a controlling interest of H.A. Brandt & Associates’ capital stock (First Options-Brandt), and as part of the transaction, Brandt assigned its lease of the 28th floor to defendant First Options. Thus, as of July 1986, defendant First Options had a leasehold interest in floors 14 through 18 and the 28th floor of One Financial Place. First Options also had the right to lease the 19th floor upon the expiration of the current tenant’s lease term.

First Options sought to keep its lease space in the One Financial Building to contiguous floors, so in August 1986, it requested the cancellation of its lease to the 28th floor and the relocation of the First Options-Brandt offices to the 19th floor. On August 12, 1986, defendant lessor agreed but made the agreement contingent on its ability to lease the 28th floor to Union Mutual Life Insurance Company. In October 1986, defendant lessor leased part of the 28th floor to Union Mutual for a term of five years beginning February 1, 1987, and began discussing the relocation of the current 19th-floor tenants when plaintiff inquired about leasing the 28th floor.

On October 14, 1986, Irving Kessler, president of plaintiff IK Corporation, met with defendant Janet Burch, a real estate broker for defendant lessor, to discuss leasing space on the 28th floor. Kessler alleges that during the meeting, Burch informed him that neither First Options nor First Options-Brandt had a lease to the 28th floor after December 12, 1986. Kessler further alleges that Burch stated that although Union Mutual Insurance Company had a leasehold interest to a small portion of the 28th floor, it was lessor’s intention to relocate Union Mutual to the 36th floor so that plaintiff could lease the 28th floor.

On October 15, 1986, Janet Burch sent an introductory letter and a proposal memorandum to Mr. Kessler. The letter and proposal memorandum listed, with some degree of specificity, the terms upon which plaintiff could lease the 28th floor. The proposal memorandum described the areas to be leased, the duration of the lease, the rental price of the areas to be leased, and the time and manner of payment. Pertinent provisions of the introductory letter and proposal memorandum state as follows:

“The information in this booklet is designed to introduce you to One Financial Place, a new 40 story office tower on LaSalle Street.
1. Area. We will provide approximately 25,000 leasable square feet on the 28th floor of the mid-rise elevator bank for I.K. Corporation (I.K.). This floor offers unobstructed views in all directions, including the entire downtown business district and lakefront.
2. Lease Term. We will provide a six (6) year lease term commencing January 1, 1987.
3. Base Rent and Rental Abatement. *** Our mid-size floors lease at a net rate of $23,000; we have developed a special net rental structure for I.K. to control the entire 25,000 square feet on the 28th floor while paying a substantially reduced rent on only 17,000 square feet.”

Also included in the proposal memorandum were terms intended to make the 28th floor an attractive and cost-effective leasehold for plaintiff. Such terms included: an option to renew the lease at the current market price: a $60,000 allowance for renovating the 28th floor; a savings of $30,000 on cable installation; five parking spaces in the garage at the current monthly rate; year-long access to the building; around-the-clock security and surveillance cameras; smoke detectors and standby medical mobile treatment units; a combination of amenities that are unmatched by any other downtown office complex; and the prestige of being located in the same building with some of the reputable investment banking firms. The last paragraph of the proposal memorandum, however, stated as follows: “15. Proposal Subject to prior leasing. This proposal is subject to prior leasing, prior acceptance and lender approval.”

On October 16, 1986, Kessler met with Wislow, a managing partner of lessor. Kessler alleges that Wislow reiterated statements that had been made by Burch, namely that neither First Options nor First Options-Brandt would have an interest in the 28th floor after December 1, 1986, and lessor was free to lease the 28th floor to plaintiff for a term beginning December 1,1986.

On October 22, 1986, the day in which plaintiff alleges that the contract was formed, Kessler met with Fabian, the vice-president of defendant U.S. Equities & Realty Inc., and defendants Wislow and Burch. Plaintiff alleges that during the meeting, it offered and promised to enter into a lease on the “exact same terms” as were proposed by lessor in the proposal memorandum. Plaintiff further alleges that its offer differed from the proposal memorandum in only one respect, namely, lessor would pay one half of the cost of cancelling plaintiff’s current lease. Plaintiff also alleges that after it had offered and promised to enter into the lease, Wislow, on behalf of lessor, accepted plaintiff’s offer and promised to enter into a lease with plaintiff for the 28th floor.

On October 23, 1986, Fabian met with Schroeder, plaintiff’s agent. Plaintiff alleges that during the meeting, Fabian stated that Union Mutual would be relocated to the 36th floor to make room for plaintiff; that First Options-Brandt would be moving to the 19th floor on December 1, 1986; and that most of the smaller tenants of the 19th floor had already been relocated in order to create space for First Option-Brandt’s relocation.

An initial draft lease was presented to plaintiff during the October 23, 1986, meeting. Plaintiff alleges that the initial draft lease contained terms that were identical to the terms in the proposal memorandum with the exception that plaintiff’s term of years in the building would change from a six-year term to a 5-year and 11-month term, and that plaintiff’s operating and tax expenses would increase. Plaintiff alleges that it agreed to a lease term of 5 years and 11 months but disagreed with paying certain operating expenses and taxes. The initial draft lease, however, provided in paragraph 27(e) that “(t)he instrument does not become effective as a lease or otherwise until executed and delivered by both Landlord and Tenant.”

On October 31, 1986, Fabian and Schroeder again met to discuss the unresolved terms of the first draft lease. A second draft lease was prepared, and the second draft lease also contained a paragraph 27(e), which provided that “(t)he instrument does not become effective as a lease or otherwise until executed and delivered by both Landlord and Tenant.” Plaintiff alleges that on November 3, 1986, Fabian signed and delivered certain correspondences and a “complete revised lease.” On November 5, 1986, Schroeder picked up a copy of the current revised lease from lessor. Neither plaintiff nor lessor signed any of the draft leases or revised draft leases.

While plaintiff and lessor were discussing and revising draft leases to the 28th floor, First Options informed lessor, on November 7, 1986, that its current lease to floors 14 through 19 in the One Financial Building would not accommodate its expanding operations and, therefore, it was necessary to retain its lease to the 28th floor.

Plaintiff was therefore unable to obtain a lease to the 28th floor of the One Financial Place Building.

Plaintiff filed a complaint on December 15, 1986, to which the defendants answered by filing section 2 — 615 motions for judgment on the pleadings. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615.) On April 10, 1987, plaintiff amended its complaint, seeking: (1) a declaratory judgment against lessor and First Options; (2) specific performance of the contract against lessor; (3) specific performance of the contract based on promissory estoppel against lessor; (4) damages for common law fraud against lessor; (5) damages for tortious interference with a contract against First Options and U.S. Equities; (6) damages for tortious interference with prospective economic advantage; and (7) damages for the violation of a statute against Winslow, Burch, U.S. Equities, First Options, and lessor. Defendants again filed section 2 — 615 motions. On August 18, 1987, plaintiff filed a supplemental amendment, but on October 27, 1987, the trial court dismissed plaintiff’s seven-count amended complaint under section 2 — 615. After hearing oral arguments on November 3, 1987, the trial court entered a second order which stated that the October 27, 1987, dismissal order was with prejudice. Plaintiff filed a motion to reconsider or alternatively for leave to file another amended complaint, but it was denied on March 16, 1988. Plaintiff appeals.

It is settled in Illinois that a motion to dismiss filed pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615) is proper only where the court can determine the relative rights of the parties solely from the pleadings. (Teeple v. Hunziker (1983), 118 Ill. App. 3d 492, 454 N.E.2d 1174.) In making its ruling, the trial court must examine all pleadings of the party opposing the motion to determine whether there are any material issues of fact or whether the controversy can be resolved strictly as a matter of law. (Triangle Sign Co. v. Weber, Cohn & Riley (1986), 149 Ill. App. 3d 839, 501 N.E.2d 315; Baker-Wendell, Inc. v. Edward M. Cohon & Associates, Ltd. (1981), 100 Ill. App. 3d 924, 427 N.E.2d 317; Quaintance Associates, Inc. v. PLM, Inc. (1981), 95 Ill. App. 3d 818, 420 N.E.2d 567; David v. J. Elrod Realtors on Devon, Inc. (1979), 75 Ill. App. 3d 449, 394 N.E.2d 583.) Moreover, a motion for judgment on the pleadings, “attacks the legal sufficiency of the complaint, and not the factual sufficiency.” (Cain v. American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 586, 325 N.E.2d 799, 808; Hamer v. Village of Deerfield (1975), 33 Ill. App. 3d 804, 338 N. E.2d 242.) Furthermore, a reviewing court should interpret the facts alleged in the complaint in the light most favorable to the plaintiff (Farns Associates, Inc. v. Sternback (1979), 77 Ill. App. 3d 249, 395 N.E.2d 1103), and if any ground relied upon by the trial court in granting the motion was proper, the trial court’s judgment should be affirmed. (Matchett v. Rose (1976), 36 Ill. App. 3d 638, 344 N.E.2d 770.) With these rules in mind, we turn to the issues presented for review.

In the case at bar, plaintiff contends that the trial court erred in granting defendants’ section 2 — 615 motions. Plaintiff further contends that the trial court applied an improper standard to the section 2 — 615 motions, and because thereof, extrinsic material was considered, improper factual determinations and conclusions of law were made, and well-pleaded facts were not taken as true. Plaintiff alleges that these procedural errors permeated and tainted the entire hearings, and resulted in a judgment which must now be reversed and remanded. Because the alleged procedural errors are inextricably linked to the alleged substantive errors on appeal, with respect to the declaratory action (count I) and specific performance (count II), we will address the procedural issue within the context of the substantive issues raised on appeal.

Plaintiff contends on appeal that the trial court erroneously concluded as a matter of law that there was no contract, even though it had earlier ruled that the lessor’s offer contained the essential terms of a commercial real estate contract. Plaintiff argues that the trial court would have concluded that there was a contract, if it had properly construed the “subject to” language in paragraph 115 of the proposal memorandum. Plaintiff further argues that the trial court also erroneously concluded that there was no contract when it misconstrued the language in clause 27(e) as a condition precedent to the formation of a contract. We disagree.

Decided cases in Illinois have expressed the view that parties’ contemplation of the execution of a formal agreement in the future does not render prior agreements mere negotiation where the parties intend that the formal agreement will be substantially based upon the earlier agreement. (Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615; Borg-Warner Corp. v. Anchor Coupling Co. (1958), 16 Ill. 2d 234, 156 N.E.2d 513.) If, however, the parties intended the execution of a formal agreement as a condition precedent, then no formal contract arises until the formal agreement is, in fact, executed. (Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 1098, 407 N.E.2d 615, 618; Brunette v. Vulcan Materials Co. (1970), 119 Ill. App. 2d 390, 256 N.E.2d 44; 17 Am. Jur. 2d Contracts §28, at 364 (1964).) Consequently, the resolution of this issue depends on whether the parties intended the execution of a formal agreement as a condition precedent to the formation of a binding contract.

The determination of the intent of the parties to a contract may either be a question of law or fact. If the language in a contract is ambiguous, then the determination of its meaning is a question of fact and not to be resolved by a section 2 — 615 motion to dismiss. If, however, the language in the contract is unambiguous, then the construction of the alleged contract is a question of law and subject to a section 2 — 615 motion to dismiss. (Terracom Development Group, Inc. v. Coleman Cable & Wire Co. (1977), 50 Ill. App. 3d 739, 365 N.E.2d 1028.) In addition, the Illinois Supreme Court has stated:

“The primary object in construing a contract is to give effect to the intentions of the parties involved. Their intent must be determined solely from the language used when no ambiguity in its terms exists, and a strict construction of that language which reaches a different result from that intended by the parties should not be adopted.” Schek v. Chicago Transit Authority (1969), 42 Ill. 2d 362, 364, 247 N.E.2d 886, 887.

In the case at bar, the language in clause 27(e) of the lease draft specifically provided that “the Instrument does not become effective as a lease or otherwise until executed and delivered by both Landlord and Tenant.” The trial court determined that the language in clause 27(e) was unambiguous and, therefore, the parties’ intent was clearly discernible from the writing itself. We agree with the trial court. Our review of the record does not support a contrary conclusion. The language in clause 27(e) appeared in the first, second and revised first and second draft leases, but neither party objected to the inclusion of such language during negotiations. Moreover, custom and usage in the real estate business tends to indicate that the parties intended the execution and delivery of a formal agreement as a condition precedent to the formation of a binding contract. If the draft leases tended to evidence a binding contract, they would not customarily contain an express disclaimer stating that the parties do not intend to be bound until a more formal document is completed and executed. Since the draft leases have such a clause, we must conclude that the parties intended to enter nonbinding preliminary negotiation.

The trial court also determined that the “subject to” language in the proposal memorandum was unambiguous, and as a matter of law, the language expressed the intent of the parties that “prior leasing,” “prior acceptance,” and “lender approval” were conditions precedent to the formation of a binding contract. Plaintiff argues that the trial court disregarded the implied and expressed intent of the parties and found that a contract had not been formed. Plaintiff also argues that the “subject to” language was ambiguous and capable of being interpreted differently by reasonable men. We disagree.

The words “subject to” lend themselves to different interpretations depending on the context in which they are used. “Subject to,” when used in the ordinary sense, means “ ‘subordinate to,’ ‘subservient to,’ or ‘limited by.’ ” (Englestein v. Mintz (1931), 345 Ill. 48, 61, 177 N.E. 746.) When, however, the words “subject to” are used in connection with contracts, these words usually mean a condition on a party’s duty of performance and indicate that more is contemplated by the parties. (El Reno Wholesale Grocery Co. v. Stocking (1920), 293 Ill. 494, 127 N.E. 642; Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 1099, 407 N.E.2d 615.) More importantly, the fact that one party to the contract expected a different construction of the words “subject to” “is not sufficient to justify the application of an unusual construction of such language.” Englestein v. Mintz (1931), 345 Ill. 48, 61, 177 N.E. 746.

In applying the foregoing principles to the case at bar, we must agree with the trial court’s conclusion that the “subject to” language in paragraph 15 of the proposal memorandum was unambiguous. We also agree with the trial court’s holding that, as a matter of law, the “subject to” language expresses the intent of the parties that prior leasing, prior acceptance and lender approval were conditions precedent to the formation of a binding contract.

IK accurately argues that whether a writing which contains the essential terms of a contract but which contemplates the later execution of a contract is in fact a contract or merely a negotiation depends upon the intent of the parties. IK seeks a reversal and remandment of the case to introduce extrinsic evidence of the parties intentions.

A contract’s meaning must be determined from the words or language used, and a court cannot place a construction on the contract which is contrary to the plain and obvious meaning of the language. (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287, 458 N.E.2d 480, 481.) In the absence of ambiguity, a court must treat the language in a contract as a matter of law and construe the contract according to its language, not according to the constructions which the parties place on this language. (J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd. (1990), 194 Ill. App. 3d 744, 748, 551 N.E.2d 340, 344.) Extrinsic evidence may be introduced to explain the meaning of an ambiguous contract provision, but the provision is not rendered ambiguous simply because the parties do not agree on its meaning. (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287, 458 N.E.2d 480, 481; White v. White (1978), 62 Ill. App. 3d 375, 378, 378 N.E.2d 1255, 1258.) When the intent of the parties can be ascertained by the plain language of the instrument, no disputed question of fact exists. (Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 484 N.E.2d 1178.) Parties may specifically provide that negotiations are not binding until a formal agreement is, in fact, executed. (Terracom Development Group, Inc. v. Coleman Cable & Wire Co. (1977), 50 Ill. App. 3d 739, 365 N.E.2d 1028.) If the parties construe the execution of a formal agreement as a condition precedent, then no contract arises unless and until that formal agreement is executed. (Interway, Inc. v. Alagna (1980), 85 Ill. App. 3d 1094, 407 N.E.2d 615.) Moreover, where contract terms are clear and unambiguous, they must be given their ordinary and natural meaning and no parol evidence can be considered to vary their meaning. (Lewis v. Loyola University (1986), 149 Ill. App. 3d 88, 500 N.E.2d 47.) The terms involved in this contract are clear and unambiguous. The lease drafts, including the one sought to be specifically enforced, read in part:

“Submission of this instrument does not constitute a reservation of or an option for the premises. The instrument does not become effective as a lease or otherwise until executed by both Landlord and Tenant ***.” (Emphasis added.)

Unless the contract clearly specified its own meanings, the court must interpret the words or language of the contract with their common and generally accepted meanings. (J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd. (1990), 194 Ill. App. 3d 744, 551 N.E.2d 340.) The terms “executed” and “delivered” and “landlord” and “tenant” have well-defined legal meanings. In Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 484 N.E.2d 1178, the use of those words was held to create no landlord and tenant negotiation where the lessee sent a letter expressing an intent to finalize lease negotiations. Black’s Law Dictionary defines “execute” as to perform all necessary formalities, as to make and sign a contract, or sign and deliver a note. (Black’s Law Dictionary 509 (5th ed. 1979).) Additionally, the term “executed” imports the idea that nothing remains to be done. Black’s Law Dictionary 509 (5th ed. 1979).

In Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc. (1986), 114 Ill. 2d 133, 500 N.E.2d 1, the court stated that even where the essential terms have been agreed upon, if the clear intent of the parties is that neither will be legally bound until the execution and delivery of a formal agreement, then no contract comes into existence until such execution and delivery.

This case involves a writing which IK claims is ambiguous. Whether or not a contract is ambiguous is a question of law. (National Tea Co. v. American National Bank & Trust Co. (1981), 100 Ill. App. 3d 1046, 427 N.E.2d 806.) A contract will be ambiguous if it is one capable of being understood in more senses than one. Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App. 3d 915, 326 N.E.2d 33.

In Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 552, 484 N.E.2d 1178, 1181, in a fact situation similar to the instant case, this court concluded the terms that a lease would become effective “upon the execution and delivery by both Lessor and Lessee” were unambiguous and presented no issue of fact as to whether the terms were a condition precedent to the formation of a binding contract. The draft lease in Ebert provided for a condition precedent in language virtually identical to IK’s lease drafts: “Submission of this instrument for examination does not constitute a reservation or an option for the premises. The instrument becomes effective as a lease upon the execution and delivery both by Lessor and Lessee.” (Ebert, 37 Ill. App. 3d at 552, 484 N.E.2d at 1181.) The plaintiff argued that the words were ambiguous and “that the various conversations, writings, and proposed leases which passed between the parties during negotiations indicate ambiguities concerning the intent of the parties.” (Ebert, 137 Ill. App. 3d at 558.) In Ebert the Illinois Appellate Court held:

“[Plaintiff’s] argument, however, is contravened by the language of paragraph 17(g) in the proposed lease. *** The plain language of paragraph 17(g) indicates that the parties did not intend to be bound at any time prior to the final execution of the lease agreement. Since that final execution never occurred, no intent to be bound can be inferred.” Ebert, 137 Ill. App. 3d at 558, 484 N.E.2d at 1184.

The plaintiff argued alternatively, as IK does here, “that a contract was created by defendant’s *** letter wherein defendant expressed the intention to finalize the proposed lease within the next few weeks.” (Ebert, 137 Ill. App. 3d at 559, 484 N.E.2d at 1184.) The court disagreed, and held that even if all the terms had been agreed upon, under the language of the draft lease, execution of a formal lease was a condition precedent to any binding agreement. Ebert v. Dr. Scholl’s Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 484 N.E.2d 1178.

In our opinion the contract in this case is clear and unambiguous. The execution and delivery of the lease were conditions precedent to acceptance.

The trial court concluded that the terms “This proposal is subject to prior leasing, prior acceptance and lender approval contained in a proposal” were unambiguous and made prior leasing and prior acceptance of the involved space and lender approval conditions precedent to the proposed lease. IK argues that the terms are ambiguous and raised issues of fact.

First Options, which held leasing rights to the 28th floor as a successor to H.A. Brandt Associates, argues that as a matter of law the purported lease was subject to the stated conditions.

IK Corporation relies upon Bournique v. Williams (1922), 225 Ill. App. 12, where the court held that upon plaintiff’s acceptance, defendant’s offer became an enforceable promise. However, in that case, the court was dealing with written documents. The defendant made a written offer to plaintiff to either sell or lease real property. The plaintiff accepted in writing. Defendant’s contention that a formal, written lease was contemplated was rejected.

“The mere fact that a written lease was in contemplation does not relieve either of the contracting parties from the responsibility of a contract which was already expressed in writing.” Bournique v. Williams (1922), 225 Ill. App. 12, 21.

IK contends, based on Bournique, that it had a contract because the essential terms had been agreed upon. However, even where essential terms have been agreed upon, if the clear intent of the parties is that neither will be bound until the execution and delivery of a written lease, no contract exists until execution and delivery. Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc. (1986), 114 Ill. 2d 133, 500 N.E.2d 1.

Since we have concluded that no lease was created with IK because of the unambiguous language making execution and delivery conditions precedent to any lease, the court need not reach the issue of specific performance.

IK argues that the trial court erroneously permitted the lessor to mend its hold. IK states that when the lessor refused to execute the final draft of the lease, the lessor stated that it could not enter the lease with IK because First Options was reasserting the Brandt lease. IK also states that lessor did not assert any other conditions excusing its refusal to execute the IK lease until after the plaintiff’s attorney asserted IK’s claim to the 28th floor. IK contends that raising a new condition violates long-established Illinois law. However, this is not a case where a party has switched his position at trial. IK had notice of the condition precedent relied on by the lessor when the condition was written into the proposed lease. Moreover, a party may justify an asserted termination, rescission, or repudiation of a contract by proving that there was, at the time, an adequate cause, although it did not become known to him until later. College Point Boat Corp. v. United States (1925), 267 U.S. 12, 69 L. Ed. 490, 45 S. Ct. 199.

A party under our liberal civil procedure may plead as many causes of action, counterclaims, defenses, and matters in reply as it may have. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 613(a).) When a party is in doubt as to which of two or more statements of fact is true, he or she may, regardless of consistency, state them in the alternative or hypothetically in the same or different counts or defenses. A bad alternative does not affect a good one. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 613(b).) When a party knows the facts, but cannot be sure of the legal effect of those facts, he may plead inconsistent theories of recovery or defenses. Daehler v. Oggoian (1979), 72 Ill. App. 3d 360, 370, 390 N.E.2d 417, 425.

IK claims promissory estoppel (count III), fraud (count IV) and violations of the illinois Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. \2V-k, par. 261 et seq.) (count VII). IK relies on the charges in its complaint that all or some of the defendants misrepresented the tenancy condition of the 28th floor, indicating at one time that the Brandt lease had been terminated and at another time that it had not.

The trial court concluded that the issues presented by those counts were mixed questions of law and fact and that the representations were not actionable. The trial court correctly dismissed the counts relating to equitable estoppel and fraud.

In order to maintain an action for promissory estoppel, the law requires: (1) a promise which is unambiguous in its terms, (2) reliance by the party to whom the promise is made, (3) the reliance must be expected and foreseeable by the party making the promise, and (4) the party to whom the promise is made must rely upon the promise to his detriment. Levitt Homes, Inc. v. Old Farm Homeowner’s Association (1982), 111 Ill. App. 3d 300, 315, 444 N.E.2d 194, 204.

A complaint in fraud must allege (1) that a false statement of material fact was made, (2) that the party making the statement knew or believed it to be untrue, (3) that the party to whom the statement was made had a right to rely on it and did so, (4) that the statement was made for the purpose of inducing the other party to act, and (5) that reliance by the person to whom the statement was made led to his injury. Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324.

Reasonable reliance is a required element of promissory estoppel and common law or statutory fraud. (Huegel v. Sassaman (1979), 75 Ill. App. 3d 414, 417-18, 393 N.E.2d 1361, 1365.) The plaintiff’s charges with respect to those counts were fatally defective in a number of ways. First, assuming as we must that the charges were true, IK’s reliance on said charges was not reasonable. It was not reasonable to rely on allegations that the 28th floor was available for rent in the absence of a lease for the space while additionally considering that the lease documents were conditioned on an execution and delivery of the documents. Further, defendants’ alleged statements that the lease by Brandt had been terminated and the 28th floor was available are statements of law. As a general rule one is not entitled to rely on a representation of law since both parties are presumed to be capable of knowing and interpreting the law. (City of Aurora v. Green (1984), 126 Ill. App. 3d 684, 467 N.E.2d 610.) A simple contract with Brandt by IK would determine whether in fact its lease had been terminated. Finally, the statement about the availability of the 28th floor was contingent on future events, i.e., Brandt’s giving up of the floor, the landlord not renting it to another before the lease was executed, and IK’s execution and delivery of the lease for the space. Opinions based on contingent or future events are not the basis of an action for fraud or promissory estoppel. Parker v. Arthur Murray, Inc. (1973), 10 Ill. App. 3d 1000, 1004, 295 N.E.2d 487, 490; Gil liland v. Allstate Insurance Co. (1979), 69 Ill. App. 3d 630, 388 N.E.2d 65.

There being no lease agreement between IK and lessors, and merely allegations as to the alleged availability of the 28th floor for leasing, IK does not meet the necessary elements of fraud and/or promissory estoppel. The trial court properly ruled on defendant’s motion to dismiss those counts.

IK charges a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1985, ch. 121V2, par. 261 et seq.). The trial court properly ruled in dismissing count VII, which alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act.

Section 2 defines a deceptive practice as

“the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact.” Ill. Rev. Stat. 1981, ch. 121V2, par. 262.

The representations must be shown to be material and must relate to a matter upon which the plaintiff could be expected to rely. (City of Aurora v. Green (1984), 126 Ill. App. 3d 684, 688, 467 N.E.2d 610, 613.) Even if the Act were applicable to this cause of action, IK’s reliance on the alleged deceptive representations was not reasonable for the reasons previously discussed with regard to the promissory estoppel and fraud counts.

The Act is intended to give consumers a broader protection than a common law action for fraud and estoppel. (Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 306, 476 N.E.2d 1259, 1263.) The Act is not intended to be used as a vehicle for transforming nondeceptive and nonfraudulent statements or omissions into actionable ones. Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 306, 476 N.E.2d 1259, 1263.

Every individual breach of contract between two parties does not amount to a cause of action cognizable under the Act. (Exchange National Bank v. Farm Bureau Life Insurance Co. (1982), 108 Ill. App. 3d 212, 438 N.E.2d 1247.) Furthermore, the Act is intended to reach practices of the type which affect consumers generally and is not available as an additional remedy to redress a purely private wrong. Frahm v. Urkovich (1983), 113 Ill. App. 3d 580, 447 N.E.2d 1007; Exchange National Bank v. Farm Bureau Life Insurance Co. (1982), 108 Ill. App. 3d 212, 438 N.E.2d 1247.

IK finally charges that the trial court improperly dismissed its claims of tortious interference with contractual or business relations. The essential elements of the tort of inducing the breach of a contract are:

“(1) the existence of a valid and enforceable contract between plaintiff and another; (2) the defendant’s awareness of this contractual relation; (3) the defendant’s intentional and unjustified inducement of a breach of a contract; (4) a subsequent breach by the other, caused by the defendant’s wrongful conduct; and (5) damages.” Galinski v. Kessler (1985), 134 Ill. App. 3d 602, 610, 480 N.E.2d 1176, 1182.

One of the essential elements of tortious interference is the existence of a valid contract between plaintiff and a third person. (Arlington Heights National Bank v. Arlington Heights Federal Savings & Loan Association (1967), 37 Ill. 2d 546, 551, 229 N.E.2d 514, 518.) Since we have found that the trial court properly found no valid contract between the parties, it necessarily follows that IK has no case for tortious interference with the contract.

At best, plaintiff’s complaint reveals negotiations for a lease of the 28th floor of One Financial Plaza for a term of six years that never materialized into an executed and delivered lease contemplated by the contractual documents. Thus, neither a valid business relationship nor an expectancy existed between the parties.

The elements which establish a prima facie case of tortious interference with prospective economic advantage or expectancy area:

“(1) existence of a valid business relationship or expectancy;
(2) knowledge of the relationship or expectancy on part of the interferer;
(3) an intentional and malicious interference inducing or causing a breach of termination of the relationship or expectancy;
(4) resultant damage to the party whose relationship or expectancy has been disrupted.” Ancraft Products Co. v. Universal Oil Products Co. (1980), 84 Ill. App. 3d 836, 844, 405 N.E.2d 1162, 1168.

Though contractual relationships are protected from third-party interference, in many cases the third party may be privileged to purposely bring about the breach of plaintiff’s contract with another. (Connaughton v. Gertz (1981), 94 Ill. App. 3d 265, 269, 418 N.E.2d 858, 861.) Furthermore, with respect to tortious interference with IK’s prospective business advantages, all interferences with another’s business advantages are not actionable. For example, an agent or a corporate officer has a duty to protect the interest of his principle. (H.F. Philipsborn & Co. v. Suson (1974), 59 Ill. 2d 465, 474, 322 N.E.2d 45, 50.) Interference is also justified to protect one’s financial interest. (Bank Computer Network Corp. v. Continental Illinois National Bank & Trust Co. (1982), 110 Ill. App. 3d 492, 500, 442 N.E.2d 586, 593.) No allegations are made that the so-called interference was anything other than the exercise by the lessor of rights that it otherwise possessed. Nothing suggests that the acts of any of the parties were intended to do anything other than further their own goals. Even if there were in the present case a valid contract that had been breached, it is indisputable that a party cannot tortiously interfere with its own contract. (Affiliated Distillers Brands Corp. v. Gold Seal Liquors, Inc. (1952), 13 Ill. App. 2d 249, 141 N.E.2d 659; Parkway Bank & Trust Co. v. City of Darien (1976), 43 Ill. App. 3d 400, 357 N.E.2d 211.) Finally, the acts that form the basis of a tortious interference must be acts directed at parties other than the plaintiff. (Mitchell v. Weiger (1980), 87 Ill. App. 3d 302, 409 N.E.2d 38.) The trial court properly dismissed the counts relating to tortious interference with a contract and interference with prospective business advantage.

IK argues that the trial court treated the section 2 — 615 motion to dismiss as a section 2 — 1005 motion for summary judgment by improperly relying on extrinsic materials and making inferences unfavorable to the plaintiff (IK).

We find these charges without procedural or substantive merit. This is a case of lengthy negotiations between the parties for a five-year lease that never materialized into a valid lease. After able argument, a conscientious trial judge granted the section 2 — 615 motion to dismiss.

After a review of the record, briefs and oral argument, this court can find no error justifying a reversal of the order of the trial judge. Accordingly, we affirm.

Judgment affirmed.

LORENZ, J., and COCCIA, P.J., concur.

      Prior to his resignation, Justice R. Eugene Pincham was assigned to and heard oral arguments in the above case. Since Justice Pincham’s resignation, the case was reassigned to Justice Murray, who has listened to the tapes and read the briefs.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
      In re N.R.L., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. N.R.L., Respondent-Appellant).

    Second District
    No. 2—88—1107
    Opinion filed July 18, 1990.

      G. Joseph Weller and Robert C. Cooper, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

      The above opinion is the text of the opinion withdrawn from publication as noted in 199 Ill. App. 3d 1024.

   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Respondent, N.R.L., a minor, appeals from an order of the circuit court of Kane County finding that he violated the terms of his probation.

On April 1, 1987, N.R.L. was adjudged a delinquent based on allegations of battery and mob action, and he was placed on probation for a period of 12 months. On July 15, 1987, he was again adjudged delinquent as the result of two incidents of criminal damage to property. He was ordered to pay restitution, and the terms of his probation remained unchanged.

On March 8, 1988. the State filed a petition to revoke N.R.L.’s probation alleging that he had committed an aggravated battery by striking his high school teacher. On March 18, 1988, the State filed a petition to adjudicate him delinquent based on the same action. There was a single hearing on the two petitions.

At the hearing, Bernice Roome testified that she was a teacher at Larkin High School. On February 8, 1988, N.R.L. was a student in her freshmen English class. On that date, Ms. Roome handed out computerized registration sheets to the students. She advised them not to fold the sheets; N.R.L., however, folded his. She told him again not to fold the paper. At that point he cursed, told her he could do what he pleased with the paper, and folded it again. She held her hand out and asked him for the paper. He refused. As she reached for the paper, he cursed again, jumped up, raised his right fist, hit her in the chest, and knocked her to the ground. She sustained bruises and a fracture of the right foot.

N.R.L. testified that when Ms. Roome asked him for the paper, he held the paper away from her. She reached for the paper and grabbed his wrist. Then she grabbed his shirt and pulled it up. He stood up and pulled his arm back to hit her, but he stopped himself. They had a tug-of-war with the paper, and when it ripped Ms. Roome fell down. He said that he did not hit her.

The defense also called four students who were present in the classroom at the time of the incident. Their testimony basically corroborated N.R.L.'s testimony. They all testified that there was an argument about the paper and that N.R.L. had not hit Ms. Roome. They said that she fell when the paper ripped or when N.R.L. pulled his hand from her grasp.

In rebuttal, the State called another student who had been present at the time of the incident. He said that N.R.L. hit Ms. Roome in the shoulder with a closed fist and knocked her down.

After hearing the evidence, the trial court said:

“Court *** finds that the evidence presented and put on the scales of justice are such that I cannot raise this issue up to beyond a reasonable doubt, it’s just not there; but I do believe that it’s more probably true than not true that [N.R.L.] committed the offense of battery and aggravated battery in that classroom on February the 8th, and I will therefore find him to have violated the terms of his probation.”

The court extended N.R.L.’s probation to July 24, 1989, and sentenced him to 14 days in the Kane County Juvenile Detention Center. This appeal ensued.

The minor first contends that the trial court’s finding that he violated the terms of his probation is against the manifest weight of the evidence. He asserts that, by finding for him on the delinquency petition, the court necessarily affirmed his version of the confrontation “as there was no middle ground in the two versions.” He concludes:

“The court could not simultaneously find that the minor was innocent and that he struck Ms. Roome. The only logical conclusion consistent with the court’s finding that the minor did not strike Ms. Roome, is that nonetheless, the minor caused her great bodily harm by engaging in a tug-of-war with the piece of paper.”

He asserts that, even if Ms. Roome suffered bodily harm, the court’s findings indicate that the State failed to prove the necessary element of intent.

The minor’s argument is based on a faulty premise. He presumes that the court found that he was “innocent” and that he did not strike Ms. Roome. There were no such findings. To the contrary, the court’s statement, quoted above, indicates that the court believed the testimony of Ms. Roome and not that of the minor and the defense witnesses. The court found, by a preponderance of the evidence, that the minor had committed aggravated battery. The fact that the court found that the evidence did not prove the offense beyond a reasonable doubt is not legally inconsistent.

Pursuant to section 5 — 18 of the Juvenile Court Act of 1987, the standard of proof at an adjudicatory hearing is the same as that applicable to criminal proceedings (Ill. Rev. Stat. 1987, ch. 37, par. 805—18), that is, the offense must be proved beyond a reasonable doubt (Ill. Rev. Stat. 1987, ch. 38, par. 3—1). The standard of proof at a probation revocation hearing is lower; the State is required to prove the violation only by a preponderance of the evidence. (Ill. Rev. Stat. 1987, ch. 37, par. 805—25(3).) The same evidence may be sufficient to prove an offense by a preponderance of the evidence yet be insufficient to prove the same offense beyond a reasonable doubt.

We would also point out that an acquittal on a criminal charge does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt. United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354, 361, 79 L. Ed. 2d 361, 368, 104 S. Ct. 1099, 1104.

The evidence in this case was sufficient to prove the offense by a preponderance of the evidence. The minor was charged with committing an aggravated battery in violation of section 12 — 4(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12—4(b)(3)). A person commits an aggravated battery under this section if he intentionally or knowingly without legal justification and by any means causes bodily harm to an individual knowing that the individual harmed is a teacher. There is no question that Ms. Roome is a teacher. She testified that the minor raised his right fist, struck her in the chest, and knocked her to the ground. As a result of the incident she suffered bruises and a fracture of the foot. Her testimony that the minor struck her was corroborated by a student eyewitness. Ms. Roome’s testimony that the minor raised his fist and struck her was sufficient to prove that he acted intentionally.

There was conflicting testimony; the minor and four other student eyewitnesses testified that the minor never struck Ms. Roome. The trial court resolved this conflict in the State’s favor. The resolution of conflicting evidence is the job of the trier of fact, and his decision will be accepted on review unless it is clearly unreasonable. (People v. McGrew (1984), 128 Ill. App. 3d 464, 470-71.) We are not persuaded that the trial court’s decision was unreasonable.

The minor also contends that the doctrine of collateral estoppel and the constitutional guarantee against double jeopardy barred the trial court from “redetermining” his guilt on the aggravated battery charge for purposes of the probation revocation after it had previously acquitted him on the same charge. We disagree.

The doctrine of collateral estoppel is embodied in the double jeopardy clause. (Ashe v. Swenson (1970), 397 U.S. 436, 445, 25 L. Ed. 2d 469, 476, 90 S. Ct. 1189, 1195.) Application of the doctrine means that when an issue of ultimate fact has once been determined by a valid and final judgment that issue cannot again be litigated between the same parties in any future suit. (Ashe, 397 U.S. at 443, 25 L. Ed. 2d at 475, 90 S. Ct. at 1194.) The doctrine applies in criminal proceedings to protect a defendant who has been acquitted “from having to ‘run the gantlet’ a second time.” (Ashe, 397 U.S. at 445-46, 25 L. Ed. 2d at 476-77, 90 S. Ct. at 1195, quoting Green v. United States, (1957), 355 U.S. 184, 190, 2 L. Ed. 2d 199, 206, 78 S. Ct. 221, 225.) The double jeopardy clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence that it failed to muster in the first proceeding; this prohibition, lying at the core of the clause’s protections, prevents the State from honing its trial strategies and perfecting its evidence through successive attempts at conviction. Tibbs v. Florida (1982), 457 U.S. 31, 41, 72 L. Ed. 2d 652, 661, 102 S. Ct. 2211, 2218.

We do not believe that collateral estoppel and double jeopardy principles have any application to this case. The essence of these principles is that the State, having once failed to prove an offense, does not get a second chance. In this case there was one hearing, one opportunity for the State to present its evidence. Although the trial court was asked to answer two questions based on that evidence, we fail to see how this consolidated proceeding forced the minor to “run the gantlet” twice. The minor has not complained that consolidating the proceedings was improper in any sense.

In most of the cases relied by the minor, the State attempted to relitigate the ultimate facts at a second proceeding. Although the proceedings may have differed in their purposes, the same issues were in dispute in the second proceeding that had been determined in the first proceeding.

In Ashe v. Swenson (1970), 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189, the defendant was charged with the separate armed robberies of six participants in a poker game. The defendant went to trial on the charge of robbing one of the poker players, and he was acquitted. There was no question that a robbery had occurred; the only issue had been the identity of the robber. Subsequently, the State tried the defendant for the robbery of another of the six men; this time the defendant was convicted. The Supreme Court reversed. The court found that the only issue in dispute at the first trial was whether the defendant was the robber and that this question had been answered in the negative. Collateral estoppel barred the State from relitigáting that issue at a second trial.

In People v. Grayson (1974), 58 Ill. 2d 260, the defendant was on probation when he was charged with armed robbery. He was acquitted after a bench trial. Subsequently, the State brought a petition to revoke the defendant’s probation based on the same armed robbery. There was a hearing, and the trial court found the evidence sufficient to prove a probation violation. The Illinois Supreme Court reversed, holding that collateral estoppel barred the State from relitigáting the same issue which had been in dispute at the criminal trial. The court said that the differences in the burdens of proof between a criminal trial and a probation revocation hearing “cannot fairly serve to permit relitigation of the identical issue upon the same evidence.” Grayson, 58 Ill. 2d at 265.

In People v. Kondo (1977), 51 Ill. App. 3d 874, the defendant was on probation when he was charged with unlawful use of weapons. Subsequently, the State filed a petition to revoke the defendant’s probation based on the same offense. The probation revocation hearing was first. The court found that the gun had been broken down into a nonfunctioning state and denied the petition to revoke. The defendant then filed a motion to dismiss the pending criminal charge, and the trial court granted the motion. The appellate court affirmed, holding that the State, having failed to prove the issue of ultimate fact at the revocation hearing, was barred from attempting to relitigate the identical issue upon the same evidence at the criminal trial.

These cases are readily distinguishable from the case at bar. In each of these cases, the State attempted to prove at a second proceeding what it had failed to prove at the first proceeding. In the case at bar, there simply was no second attempt to prove the facts.

If the two petitions at issue in this case were litigated in separate proceedings, the results might have been different. Under Grayson, if the petition to adjudicate were tried first and the minor were acquitted, then the State would have been collaterally estopped from proceeding on the petition to revoke. As Grayson and Kondo make clear, if the State fails to prove an issue of ultimate fact at one criminal proceeding, it is barred from relitigating the same issue at a second criminal proceeding. In the instant case, there was no relitigation.

The minor also relies on People v. Frias (1983), 99 Ill. 2d 193, for the proposition that collateral estoppel can apply to two decisions rendered in the same proceeding. In Frias, the defendant was charged with two counts of murder and one count of armed violence predicated on murder. The charges all stemmed from the killing of one person. The jury found the defendant not guilty on the murder charges but guilty on the armed violence charge. The Illinois Supreme Court found that the verdicts were legally inconsistent; the not guilty verdicts meant that the State had failed to prove that the defendant committed murder, yet the guilty verdict on armed violence meant that the State had proved that the defendant committed murder, as murder was an essential element of the armed violence charge. The court held that collateral estoppel applied to prevent rendition of legally inconsistent verdicts in a single proceeding. The court reasoned that if the charges had been tried separately, a not guilty verdict on the first charge would have collaterally estopped the State from proceeding on the second charge because the ultimate issue of fact was the same under both charges.

We find Frias distinguishable as well. In the instant case, the trial court’s decisions on the petition to revoke probation and the petition to adjudicate the minor delinquent were not legally inconsistent. The verdicts in Frias were inconsistent. In Frias, the same standard of proof, proof beyond a reasonable doubt, was applicable to both charges against the defendant; the jury’s verdicts indicated that the murder both had and had not been proved. In the instant case, the trial court found that the State had proved the aggravated battery by a preponderance of the evidence; although it also found that the State had not proved the offense beyond a reasonable doubt, there was no inconsistency.

Finally, we would note that the minor’s entire collateral estoppel and double jeopardy argument rests on the fact that the trial court announced its findings on the petition to adjudicate before announcing its findings on the petition to revoke. Logically, therefore, if the trial court had announced its finding on the petition to revoke first, presumably the minor would have no complaint. We do not believe that a double jeopardy violation could be based on such mere happenstance.

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

Affirmed.

DUNN and McLAREN, JJ., concur.


author: JUSTICE McLAREN

text:
      In re SHELLY UPMANN (Shelly Upmann, on Behalf of Jamie Upmann-Terhark, a Minor, Petitioner-Appellant, v. James Terhark, Respondent-Appellee).
    Second District
    No. 2—89—1227
    Opinion filed July 20, 1990.

      Paul R. Jenen, of Wheeling, for appellant.
    Philip F. Jensen, of Galena, for appellee.
    Robert R. Roth, of Vincent, Roth & Elliott, of Galena, guardian ad litem.

   JUSTICE McLAREN

delivered the opinion of the court:

Petitioner, Shelly Upmann (Shelly), appeals from the judgment of the circuit court of Jo Daviess County granting physical custody of her son Jamie to the child’s father, James Terhark (James). We affirm.

Jamie Upmann-Terhark was born to Shelly on January 25, 1988. Shelly advised James Terhark, both during her pregnancy and the morning of Jamie’s birth, that Jamie was his son. However, it was not until June or July that James sought visitation with his son and commenced paying Shelly the sum of $40 per week to pay for her babysitting expenses.

On July 5, 1988, Shelly filed a petition to determine the existence of the father-and-child relationship. An order was entered requiring the parties to submit to blood tests, and the tests disclosed that James was the father of Jamie. An agreed order was entered on September 19, 1988, finding that James was the natural father of Jamie and that he had a duty to support Jamie.

James filed a petition for temporary and permanent custody on October 7, 1988. On October 17, 1988, an agreed order was entered without prejudice providing that James would pay Shelly the sum of $40 per week for child support and providing James with rights to visitation with Jamie.

On December 22, 1988, James filed a petition for rule to show cause, seeking to hold Shelly in contempt of court for her failure to provide him with the court-ordered visitation. A hearing was conducted on February 22, 1989, resulting in the entry of an order holding Shelly in contempt of court.

The trial on James’ petition for permanent custody of Jamie was conducted on August 30 and September 19, 1989. On October 24, 1989, the court entered its findings and judgment providing that the parties would be awarded joint legal custody of Jamie with physical custody being placed in James.

Sometime after the entry of the court’s order of October 24, Shelly turned Jamie over to James. On November 17, 1989, Shelly filed her notice of appeal in this cause. An emergency motion for stay of proceedings was filed by Shelly on November 29, 1989, with this court; said motion was denied by order entered December 6, 1989.

Shelly first contends that the trial court erred by applying the wrong standard in awarding custody of Jamie to James. Section 16 of the Illinois Parentage Act of 1984 (Parentage Act) provides in part:

“The court has continuing jurisdiction to modify an order for support, custody or visitation included in a judgment entered under this Act. Any custody or visitation judgment modification shall be in accordance with the relevant factors specified in the ‘Illinois Marriage and Dissolution of Marriage Act,’ approved September 22, 1977, as now or hereafter amended.” (Ill. Rev. Stat. 1989, ch. 40, par. 2516.)

The relevant factors for modification of a custody judgment are contained in section 610 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) as follows:

“(a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(b) The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, *** and that the modification is necessary to serve the best interest of the child.” Ill. Rev. Stat. 1989, ch. 40, par. 610.

Shelly now argues that the court failéd to apply the subsection (a) test of serious endangerment to the child’s health in making its decision to award physical custody to James and only applied the subsection (b) test of the child’s best interests.

Shelly points to the trial court’s oral pronouncement of September 19 for evidence that the court only applied the single standard. In its pronouncement, the court stated:

“[THE COURT]: The Court has had some problem as to what standard to apply in this case under Section 610 in that the Parentage Act states that that should apply. However there is [sic] certain matters wherein it doesn’t literally apply and can’t and in a paternity action custody becomes vested de facto upon birth.
We can’t say that this child has not been in someone’s custody for the last twenty-one months. Logic tells us different. However, Section 610 also provides for modification of a prior custody judgment.
It further provides that no prior custody judgment shall be modified within two years of same unless on the basis of affidavits and the Court allows it to be made by reason of serious endangerment to the child’s mental, moral, emotional or physical wellbeing [sic]. We have had no such affidavits filed in this case and the Court at any rate would not apply that section even though it is within two years of vesting of custody in this case.
The Court further finds that both parents are good, fit and proper persons to have the care, custody, control and education of the minor child. However, with the standard that the Court is going to apply in this case is not going to be one which it would at the end of a marriage or i.e. a divorce, one where both parties would stand equally before the Court.
* * *
What the Court is going to apply is the standard which is applied in Section 610 for change of custody -without being within two years of a prior custody judgment and that is that the Court will not modify the custody unless by clear and convincing evidence facts have arisen that were unknown to the Court at the time of the prior custody judgment or have arisen in the meantime and I think the unknown part certainly would apply in that there was no prior custody judgment, however since that time there are certain facts that have arisen in this case which would amount in the Court’s opinion to a change of circumstances.”

However, the court’s written findings and judgment of October 24, in addition to referring to the “best interest” test, also refer specifically to the health of the child:

“The Court having heard the evidence finds that Jamie’s present environment seriously endangers his physical, mental, moral and emotional health and that any harm caused to Jamie Upmann-Terhark by being placed with the Petitioner, James Terhark is outweighed by its advantages to the minor child.”

Shelly argues that the difference between the oral and written judgments can be attributed to the fact that James’ attorney drafted the written findings and judgment. This argument is not persuasive. The trial judge signed the written document as his own. We will not presume that the judge did not read the document or realize what was contained therein. Furthermore, the mere oral pronouncement of judgment does not constitute the entry of judgment; a written order or entry of record is necessary for a judgment to become final. (Ahn Brothers, Inc. v. Buttitta (1986), 143 Ill. App. 3d 688, 690-91.) In the case at bar, the final judgment of the court, and that from which the appeal must be taken, is the written judgment. It is clear from the written judgment that the court did apply the test set forth in section 610(a) of the Marriage Act. (Ill. Rev. Stat. 1989, ch. 40, par. 610(a).) We can, therefore, grant no relief to Shelly on this basis.

Having determined that the court did apply section 610(a) of the Marriage Act in making its decision, we must now determine if the court was correct in its application of that section.

A parent-child relationship between James and Jamie was created on September 19, 1988, by virtue of the agreed order of parentage. (See Ill. Rev. Stat. 1989, ch. 40, par. 2504.) This order found that James was the natural father of Jamie and that, as the natural father, he had a duty to support Jamie. Further proceedings were to be held in October. Eighteen days later, on October 7, James filed his affidavit and petition for temporary and permanent custody. On October 17 an agreed order was entered, without prejudice, concerning the areas of support payments and visitation by James.

Section 14 of the Parentage Act provides:

“If a judgment of parentage contains no explicit award of custody, the establishment of a support obligation or of visitation rights in one parent shall be considered a judgment granting custody to the other parent. If the parentage judgment contains no such provisions, custody shall be presumed to be with the mother; however, the presumption shall not apply if the father has had physical custody for at least 6 months prior to the date that the mother seeks to enforce custodial rights.” (Ill. Rev. Stat. 1989, ch. 40, par. 2514(a)(2).)

The parentage order contained no explicit award of custody but did establish a support obligation in James. Under this section of the Parentage Act then, it might appear that the order is to be considered a judgment granting custody to Shelly. Therefore, section 610(a) of the Marriage Act would be applicable, as the court’s judgment on the custody petition would have modified a prior custody order.

However, we conclude that the parentage order did not constitute a prior custody order. The order did not address the issues of custody, visitation and amount of support, and it explicitly provided for further proceedings in the case. An order is not final unless it terminates the litigation between parties or disposes of their rights on some definite, separate part of the litigation. (In re Marriage of Alush (1988), 172 Ill. App. 3d 646, 650.) By not addressing the issues of custody, support, and visitation, and by providing for further proceedings, the court clearly did not enter a final order. (See Deckard v. Joiner (1970), 44 Ill. 2d 412, 417.) Since the order was not final, the court could modify its order at any time. Section 610 of the Marriage Act would then be inapplicable, as that section only applies to the modification of permanent orders.

An opposite outcome on these facts would be troubling. Taken to its logical conclusion, section 14(2) of the Parentage Act would prohibit any man found to be a natural father via petition by the mother from seeking custody of his child for a two-year period if he could not prove that the child’s current environment was seriously endangering the child’s physical, mental, moral, or emotional health. The only way for a father to seek custody of his illegitimate child would be to file a petition for custody before he was found to be the child’s natural father. Such a procedure would be untenable and have no legal basis, as the putative father would have no ground to seek custody of a child not proved to be his.

In the case before us, James petitioned the court for custody 18 days after he was legally determined to be Jamie’s father. This was the first opportunity James had to seek custody of Jamie, and it came only weeks after he learned that he was the father. Under the facts of this case, we conclude that the judgment of custody granted pursuant to James’ petition was the first such judgment. Therefore, the court erred in applying section 610 of the Marriage Act. The “best interests of the child” standard set out in section 602 is applicable here.

Shelly next contends that, under either standard, the award of physical custody to James was against the manifest weight of the evidence. We disagree.

Unmarried fathers have a substantial and cognizable interest in the custody and care of their children born out of wedlock. (In re Custody of Horbatenko (1988), 176 Ill. App. 3d 970, 973.) However, this interest is distinguishable from that of a separated or divorced father in that a father who was for at least a time married to his child’s mother would have participated in raising the child during the period of marriage. (Horbatenko, 176 Ill. App. 3d at 973.) A putative father must show a substantial concern for the child before he has acquired standing to assert his interests; his conduct in establishing a significant relationship with the child and in providing for the child are factors to be considered by the court in determining the best interests of the child. (In re Custody of Bourey (1984), 127 Ill. App. 3d 530, 534.) The trial court’s award of custody will not be disturbed on review unless it is contrary to the manifest weight of the evidence or it works manifest injustice. Bourey, 127 Ill. App. 3d at 533.

In the case before us, the record provides ample evidence to support the trial court’s award of custody. James began visiting Jamie approximately four or five months after Jamie’s birth and also began making payments to Shelly at that time. These actions were taken prior to the institution of parentage proceedings by Shelly. The record also contains evidence which could explain the gap between Jamie’s birth and the establishment of a relationship between Jamie and James. James testified that he and Shelly had engaged in sexual intercourse only two times over a four-month period. In addition, shortly after Jamie was born, Shelly began cohabiting with another man. These facts make understandable the lack of involvement between James and Jamie during the initial months after Jamie’s birth. Once James became involved in Jamie’s life, however, he built a significant relationship with him. James visited Jamie several times a week and often had Jamie overnight and for entire weekends. James also continued payments to Shelly and purchased food and clothing for Jamie. We conclude that sufficient evidence exists to show a significant relationship between James and Jamie.

We also find sufficient evidence in the record to support the finding that the child’s best interests would be served by granting physical custody to James. During the 21 months that Jamie resided with Shelly, the child’s residence had been moved eight or nine times. Shelly had also employed eight or nine different baby-sitters to watch Jamie during that period. The court found that Shelly was lacking in direction and stability and that James had direction in his life and would be a positive role model for Jamie. The record contained evidence of unsanitary conditions and a lack of supervision while Jamie lived with Shelly. In addition, the court heard testimony from a court-appointed investigator and Shelly’s expert witness. The court found persuasive the investigator’s testimony that the security and stability of Jamie would be best served by placing him with James. Shelly’s expert witness, Dr. Busby, was found by the court to be unpersuasive and unreliable. The trial court is in a superior position to view the witnesses and their demeanor as they testify. We will not second-guess the court on the persuasiveness of these witnesses.

After our review of the record, we do not find the court’s custody award to be against the manifest weight of the evidence based on either section 610 or section 602. Therefore, we affirm the order of the circuit court of Jo Daviess County.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


text:
    THE ILLINOIS STATE TOLL HIGHWAY AUTHORITY, Plaintiff-Appellee, v. MARATHON OIL COMPANY, Defendant-Appellant.
    Second District
    No. 2—89—0964
    Opinion filed July 26, 1990.
    Rehearing denied September 6, 1990.

      Robert J. Di Leonardi, of Di Leonardi & Broihier, Ltd., of Des Plaines (Kathryn E. Korn, of counsel), for appellant.
    Neil E Hartigan, Attorney General, of Springfield (Robert E. Douglas and Malcolm E. Erickson, Special Assistant Attorneys General, of Oak Brook, of counsel), for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

In this eminent domain proceeding, the defendant, Marathon Oil Company (Marathon), appeals from the verdict of a jury in the circuit court of Du Page County, finding that the amount of just compensation for the property rights taken by the plaintiff, the Illinois Toll Highway Authority (the Tollway), in Marathon’s property at the southeast corner of Army Trail and Swift Roads in the Village of Addison was $1,000 and that the resultant damage to the remaining portion of the property was $45,000. The property was suitably zoned for development as an automobile service station or various other commercial uses. Marathon challenges only the damages found and seeks a new trial solely as to the amount of damages to the remainder portion of its property.

Marathon asserts in its jurisdictional statement presented pursuant to Supreme Court Rule 341(e)(4)(ii) that its appeal is taken pursuant to Supreme Court Rule 301 and sections 2 — 1201 and 2 — 1202 of the Civil Practice Law, which permit appeals to be taken from a final judgment on a jury verdict within 30 days after the denial of a timely post-trial motion. (134 Ill. 2d R. 341(e)(4)(ii) (amended May 18, 1988, effective Aug. 1, 1988); 107 Ill. 2d R. 301; Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1201, 2 — 1202.) In response, the Tollway states this court does not have jurisdiction to hear this appeal because no judgment has ever been entered on the jury’s verdict. We agree.

Referring to a stamped notation on the signed jury verdict form which reads: “Order Entered in the Absence of the Assigned Judge,” Marathon argues the only “order” to which the notation could conceivably refer is the entry of the “order” of judgment “upon the jury’s report” as required by section 7 — 123(b) of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 7 — 123(b)). Claiming that eminent domain practice is essentially the same as in civil cases generally, Marathon argues the signed verdict also contains a handwritten notation reading: “Verdict received in open court on May 18, 1989 Tomas M. Magdich Circuit Judge,” which shows that “there can be no question that it operates as the appealable final judgment in this case under Supreme Court Rule 301.”

Notwithstanding these notations, we find the signed jury verdict cannot be equated with the final judgment necessary to vest this court with jurisdiction over the appeal.

Section 7 — 123(b) of the Code, upon which Marathon relies in its argument that this court has jurisdiction of the appeal, is entitled “Judgments.” It provides in pertinent part:

“[T]he court, upon the jury’s report *** shall enter an order setting forth the amount of just compensation so finally ascertained and ordering and directing the payment of any amount thereof that may remain due to any of the interested parties, directing the return of any excess in the deposit remaining with the clerk of the court, and directing the refund of any excess amount withdrawn from the deposit by any of the interested parties, as the case may be.” (Ill. Rev. Stat. 1987, ch. 110, par. 7—123(b).)

Although this section may indeed prescribe the components of the court’s judgment on the verdict, we see nothing in the record before us which purports to be drawn along those lines.

The “Order Entered in the Absence of the Assigned Judge” notation more likely refers to the recordation of the verdict as required in section 7 — 118:

“The jury shall, at the request of either party, go upon the land sought to be taken or damaged, in person, and examine the same, and after hearing the proof offered make its report in writing, and the same shall be subject to amendment by the jury, under the direction of the court, so as to clearly set forth and show the compensation ascertained to each person thereto entitled, and the verdict shall thereupon be recorded.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 7—118.)

We note additionally that section 7 — 128 of the Code provides:

“The court shall cause the verdict of the jury and the judgment of the court to be filed of record.” Ill. Rev., Stat. 1987, ch. 110, par. 7 — 128.

Clearly, section 7 — 128 directs that a verdict and a judgment of the court be “filed of record.” A “filing” implies delivery of a document to the appropriate party with the intent of having such document kept on file by that party in the appropriate place. (Sherman v. Board of Fire & Police Commissioners (1982), 11 Ill. App. 3d 1001, 1007.) That there must be both a verdict and a judgment on the verdict comports with the usual rule in condemnation proceedings — “that the value is not determined and awarded until there is a verdict by the jury or court and an entry of a judgment on the verdict.” (Emphasis added.) Chicago Park District v. Downey Coal Co. (1953), 1 Ill. 2d 54, 58.

Save for the signed jury verdict — which Marathon contends is adequate evidence of the judgment of the court — there is no evidence the court entered judgment on the verdict in any manner whatever: there is no report of proceedings showing an oral pronouncement of judgment, no signed judgment order, and no minute order (Drulard v. Country Cos. (1981), 99 Ill. App. 3d 1031) or law record book entry (Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971) reflecting that the court ever entered judgment on the jury’s verdict.

Moreover, the parties impliedly acknowledged subsequent to the jury’s May 18, 1989, verdict that judgment had not yet been entered by the court. In an order drafted by counsel for Marathon which was entered on June 23,1989, the following language appears:

“This cause coming on for hearing on [the Tollway’s] motion for entry of judgment, and the court being advised that [Marathon’s] post-trial motion is pending, and counsel for [the Tollway] having withdrawn the motion for judgment, it is hereby ordered that: 1) [the Tollway] may file a response to [Marathon’s] post-trial motion within 21 days; and 2) [Marathon] may file a reply within 14 days thereafter. Counsel are directed to jointly contact Judge Magdich to schedule a hearing on the post-trial motion.” (Emphasis added.)

Marathon’s motion for a new trial on damages to the remainder prayed that “the verdict on damages to the remainder should be vacated, and a new trial should be granted on that issue only.” (Emphasis added.) The Tollway’s response concluded with a prayer that the court “deny [Marathon’s] Motion for a New Trial and enter judgment on the jury verdict as rendered.” (Emphasis added.) Marathon’s reply requested that its new trial motion be granted “and the verdict on damages be set aside.” (Emphasis added.)

The court’s August 24, 1989, order denying Marathon’s post-trial motion stated simply:

“It is hereby ordered
That defendants [sic] post trial motion is denied for the reasons stated on the record in open court.”

The court’s order did not include entry of judgment on the jury’s verdict, as requested by the Tollway, and this court has not been provided with a report of the proceedings of the post-trial hearing or a bystander’s report as permitted under Supreme Court Rule 323 (107 Ill. 2d R. 323(c)).

The Civil Practice Law applies to eminent domain proceedings except as otherwise provided in Article VII of the Code governing such proceedings (Ill. Rev. Stat. 1987, ch. 110, pars. 1 — 108, 7— 101 et seq.), and the supreme court rules as to appeals supersede all statutory provisions (Town of Libertyville v. Moran (1989), 179 Ill. App. 3d 880, 884). As to when a judgment is entered for purposes of appeal, Supreme Court Rule 272 provides in full:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.” 107 Ill. 2d R. 272.

This rule changed prior procedure wherein a judgment at law was considered to be effective from the time of its pronouncement in open court as opposed to a chancery decree, which was deemed to be entered when the written document was filed or recorded. (Drulard v. Country Cos. (1981), 99 Ill. App. 3d 1031; cf., e.g., Department of Public Works & Buildings v. Gieseking (1969), 108 Ill. App. 2d 105, 109 (“In eminent domain, a judgment becomes effective when pronounced by the court and is not dependent upon the signing of an order; it is a law proceeding and not a chancery proceeding”).) As noted above, section 7 — 128 of the Code requires that: “[t]he court shall cause the verdict of the jury and the judgment of the court to be filed of record.” (Ill. Rev. Stat. 1987, ch. 110, par. 7 — 128.) Even assuming arguendo that the court’s failure to comply with section 7 — 128 by requiring the submission of a form of written judgment to be signed by him would not defeat the finality of the judgment for purposes of appeal, the total absence of any “notation of judgment and [entry of] the judgment of record” as required by Supreme Court Rule 272 (107 Ill. 2d R. 272) does defeat it.

It is well established that this court has no jurisdiction to consider an appeal from a nonexistent judgment and that a jury’s verdict or a trial judge’s finding alone is not a judgment. (Heavey v. Ehret (1988), 166 Ill. App. 3d 347, 349.) Accordingly, this appeal is dismissed.

Dismissed.

DUNN and McLAREN, JJ., concur.