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    MELVIN R. SALKELD, JR., Plaintiff-Appellant, v. V.R. BUSINESS BROKERS et al., Defendants-Appellees (James T. Haley et al., Defendants).
    Second District
    No. 2—89—0159
    Opinion filed December 29, 1989.
    Rehearing denied February 2, 1990.

      Alfred Y. Kirkland, Jr., of Brady, McQueen, Martin, Collins & Jensen, of Elgin (Wiley W. Edmondson, of counsel), for appellant.
    Robert L. Caplan, of Hinsdale, for appellees The Buffer Zone, Inc., Innovative Concepts, American Triad Corporation, and Joseph ES. Licari.
    Charles J. Fesek, of Hayes, Eesek & Webb, of Oak Brook, for appellee V.R. Business Brokers, Inc.
    Gerald A. Goldman, of Goldman & Marcus, of Chicago (Arthur R. Ehrlich, of counsel), for appellees Robert Contaldo, Bantam Ihvestment Group, and Frank Contaldo.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Melvin R Salkeld, Jr., appeals from an order of the circuit court of Kane County granting the motion of defendants, V.R Business Brokers, Inc., The Buffer Zone, Inc., American Triad Corp., Innovative Concepts, Bantam Investment Group (Bantam), Joseph P.S. Licari, and Frank and Robert Contaldo. The motion sought a directed verdict on the jury counts and a finding for defendants on the nonjury counts. (A chart diagramming the corporate structure of the parties in this case can be found in Appendix A.) Defendants James T. Haley, Sharon S. Weyland, and William Skala were dismissed from the case before trial and are not parties on appeal. Plaintiff contends that the trial court erred when it determined that (1) the Franchise Disclosure Act (Franchise Act) (Ill. Rev. Stat. 1985, ch. 121xk, par. 701 et seq.) did not apply to the sublicensing agreement at issue; (2) no jury verdict could possibly stand as to plaintiff’s allegations of common-law fraud; and (3) there was no violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1985, ch. 121 Va, par. 261 et seq.). We affirm in part, reverse in part and remand.

On November 16, 1987, plaintiff filed a seven-count complaint in the circuit court of Kane County. Count I alleged a violation of the Franchise Act, counts II through V alleged common-law fraud, and counts VI and VII alleged a violation of the Consumer Fraud Act. The events leading to plaintiff’s complaint are summarized as follows.

In May 1986, plaintiff responded to an advertisement in the Chicago Tribune which sought persons to sell and distribute a new product, Cocktails Naturally, in a specific sales territory in Illinois. Plaintiff met with a Bantam account executive and Joseph Licari, at which details of the product and licensing agreements were discussed. .Plaintiff stated that he was also given a document titled "SALES MANUAL” (manual) at one of the meetings. The manual described the product in detail and promoted the product’s “competitive edge,” namely price, quality and convenience. The manual further stated that “[tjhere is actually no competition for Cocktails Naturally and it’s unique system.” In addition, the manual described how the company would provide “table tents, posters, drink menus, drink recipe cards and the original pumps without charge,” would train the bartenders on how to use the product, and would provide a rack to organize the flavors behind the bar.

Plaintiff was told at the meetings that the product was “selling well” and that Innovative Concepts would assist him in hiring and training persons to sell the product for him. Plaintiff also received samples of the product to take home and try out. Plaintiff stated that he was impressed with the product.

Plaintiff was also given a copy of a document titled “INNOVATIVE CONCEPTS SUB-LICENSEE PROGRAM.” This document highlighted the operating procedures of the company, including the support that each sublicensee would receive from Innovative Concepts. The document described the support as follows:

“The company assists in all area of marketing. We provide sub-licensee training, training (and hiring) of the sales staff, advertising and promotional material, sponsorship of sales contests (March ’86 contest winner receives 8 days in Hawaii), National advertising, trade shows, corporate sales and much more.
In short, we are with you every step of the way.”

The document also mentioned the absence of competition and gave projections of income based in part on the success rate of salespersons across the country.

Plaintiff also stated that he received a copy of a financial statement for Innovative Concepts, dated May 31, 1986. The statement showed sales of $110,390 for the first five months of 1986, with a net profit of $33,010.

On June 5, 1986, plaintiff and defendant Innovative Concepts, a division of defendant The Buffer Zone, Inc., entered into a sublicensing agreement (agreement). The agreement stated that Innovative Concepts had the authority to grant plaintiff the right to use certain “trademarks, including COCKTAILS NATURALLY which have been registered with the Patent Office of the United States.” The agreement provided plaintiff with a specific sales territory, and also committed Innovative Concepts to providing plaintiff with the advice and guidance necessary to run his business. Plaintiff agreed to pay $22,500 to Innovative Concepts, of which $7,500 was paid to defendant Bantam (acting as the salesbroker). The term of the agreement was 20 years.

On June 6, 1986, plaintiff gave his employer notice of his intention to resign and start his own business. In early July 1986, plaintiff began working with his new business. However, plaintiff suffered a heart attack one week after starting the business. He returned to full-time work approximately two weeks later. Plaintiff testified that he made approximately 150 to 170 sales calls during July, August and September, but managed to sell only $900 worth of Cocktails Naturally.

Plaintiff stated that he made several complaints to Licari regarding the lack of sales and support. Plaintiff stated that Licari arranged for a lx/2-hour meeting between plaintiff and a California salesman of the product. However, this was the only “support” that Licari provided to plaintiff.

Plaintiff further stated that several of the representations made to him before he signed the agreement proved to be untrue. Plaintiff testified that there was direct competition to Cocktails Naturally, namely a product from the Lani-Kai Company. Plaintiff stated that Lani-Kai sold a similar product for $50-per-case retail, while plaintiff paid $49-per-case wholesale for Cocktails Naturally. Plaintiff stated that the retail price for Cocktails Naturally was $72 per case. In addition, Licari also began to market a competing line of products himself. Plaintiff further stated that there were no sales or marketing systems to assist him in his business, and that he never received any trained personnel from Innovative Concepts. There were no national advertising campaigns, and very little promotional support. Plaintiff also requested documentation of any trademarks, trade names, or patents that were described in the agreement. However, Licari stated that “these documents don’t exist.”

On cross-examination, plaintiff testified that he also began to market a line of Fosdick turkeys in September 1986. Plaintiff stated that he devoted “part of [his] efforts” to selling the turkeys, but also continued to try to sell the Cocktails Naturally products.

Defendant Joseph Licari testified that plaintiff did not buy a Cocktails Naturally distribution company, but instead bought the right to have Licari supply him with frozen cocktail mix in the future. Licari stated:

“Mr. Salkeld [plaintiff] bought a business from me that had 17 existing accounts. What he bought from me was the right to have [the] product supplied to him in the future. He did not buy a Cocktails Naturally distribution system or a company, whatever you’d like to call it. He bought existing accounts, an existing business.”

Licari stated that he did not provide copies of the sublicensee program document, the sales manual, or the financial statement to plaintiff before plaintiff signed the agreement because the documents were not yet in existence. Licari stated that plaintiff signed the agreement in June 1986, but that Licari did not create the documents until July or August 1986. Licari further stated that he would not have given plaintiff a copy of the financial statement because it was only a projection.

Licari also testified that he was providing his customers with a “better product at a better price” than that of Cocktails Naturally at the time plaintiff signed the agreement. Licari stated that plaintiff was aware of this before he signed the agreement. In addition, Licari stated that plaintiff was also aware that Licari was going to set up a corporation (American Triad Corporation) to market frozen cocktail products of better quality and at a lower price than Cocktails Naturally. Licari stated that plaintiff could sell these other products in addition to selling the Cocktails Naturally products.

Defendant Frank Contaldo testified that he was a business broker for defendant V.R Business Brokers (V.R). Contaldo explained that V.R. was in the “business of bringing buyers and sellers together.” Contaldo stated that Licari contacted him regarding the Cocktails Naturally business and available sales territories in Illinois. Contaldo secured two buyers, plaintiff and Joseph Felice, for Licari, and also participated in the closing of the deals.

Contaldo further stated that his knowledge of Cocktails Naturally came from meetings he had with Licári. Contaldo had no knowledge of whether any patents or trademarks existed for Cocktails Naturally, even though he thought Licari told him of the existence of a trademark in California. Contaldo was also aware of a hiring and training program that Licari was allegedly using for the Cocktails Naturally salespersons.

Following the close of evidence, defendants made a motion for a directed verdict as to the jury counts (counts II through V). The trial court heard arguments on the motion and granted the motion as to all defendants. The court also found in favor of all defendants on the nonjury counts (counts I, VI and VII). Plaintiff’s post-trial motion was denied. In addition, the court denied both parties’ motions for attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—611). Plaintiff filed a timely notice of appeal.

At the outset, we note that neither plaintiff nor defendants have pursued an appeal as to the trial court’s rulings on the parties’ motions for attorney fees. We also note that plaintiff, in his appellate brief, has admitted that the arguments concerning the Franchise Act and common-law fraud should not include defendant American Triad Corporation, apparently because the corporation did not participate in the agreement or engage in any fraudulent misrepresentations. Thus, we will not include defendant American Triad Corporation in our discussion of these issues.

Plaintiff’s first contention on appeal is that the trial court erred in holding that the Franchise Act did not apply to the sublicensing agreement at issue in this case. Plaintiff argues that the business he purchased falls within the purview of the Franchise Act, and, as such, that the Act would apply to the agreement.

Section 3 of the Franchise Act defines a “franchise” as:

“[A] contract or agreement, either expressed or implied, whether oral or written, between 2 or more persons by which:
(a) a franchisee is granted the right to engage in the business of offering, selling, or distributing goods or services, under a marketing plan or system prescribed or suggested in substantial part by a franchisor; and
(b) the operation of the franchisee’s business pursuant to such plan or system is substantially associated with the franchisor’s trademark, service mark, trade name, logo-type, advertising, or other commercial symbol designating the franchisor or its affiliate; and
(c) the person granted the right to engage in such business is required to pay, directly or indirectly, a franchise fee of $100 or more.” (Ill. Rev. Stat. 1985, ch. 1211/2, pars. 703(1)(a) through (1(c).)

Thus, by statutory definition, a franchise exists where an agreement meets the three objective criteria. (See Vitkauskas v. State Farm Mutual Automobile Insurance Co. (1987), 157 Ill. App. 3d 317, 325-26; Brenkman v. Belmont Marketing, Inc. (1980), 87 Ill. App. 3d 1060, 1063.) The trial court held that the relationship and transaction involved in the case at bar were not the type to fall within the purview or intent of the Franchise Act.

Under the first statutory criterion, plaintiff must demonstrate that defendants granted him the right to sell or distribute the Cocktails Naturally products pursuant to a prescribed marketing plan or system. Defendants argue that there was no evidence of any marketing plan or system in the case at bar. While defendants admit that the agreement that plaintiff signed mentioned the word “system,” they contend that there was no description as to what the “system” consisted of. Defendants Licari and Frank Contaldo both testified to and contend on appeal that the “system” referred to the method of mixing and pouring the drinks using the Cocktails Naturally product, and was not used to designate any type of marketing plan. We disagree.

Section 3 of the Franchise Act defines “[mjarketing plan” as:

“[A] plan relating to some aspect of the conduct of a party to a contract in conducting business, including but not limited to (a) specification of price, or special pricing systems or discount plans, (b) use of particular sales or display equipment or merchandising devices, (c) use of specific sales techniques, (d) use of advertising or promotional materials or cooperation in advertising efforts.” Ill. Rev. Stat. 1985, ch. 121xk, par. 703(19).

A review of the record indicates that the agreement at issue in the present case satisfies the statutory requirement of a marketing plan or system. Plaintiff was provided a copy of a sales manual detailing product information and sales strategies. The manual stated how to demonstrate the product to the potential customer and mix the drinks. Furthermore, plaintiff was given a document describing the “sub-licensee program” as a program in which the company is “with you [plaintiff] every step of the way.” The company promised support in marketing, training, advertising, and promotion. We believe that these representations amply satisfy the statutory requirement of the existence of a marketing plan or system. See Brenkman, 87 Ill. App. 3d at 1063-64.

The second statutory criterion concerns the use of a trademark or other commercial symbol designating the franchisor or its affiliate. Defendants contend that the name “Cocktails Naturally” was not substantially associated with the operation of the business. Defendants stated that plaintiff did business under the name “M.S. Distributors,” and did not use the Cocktails Naturally name in the written operations of his business. A reading of the agreement at issue in this case indicates that plaintiff was granted the authority to use trademarks associated with Cocktails Naturally. The agreement provided that the “[c]ompany is the authorized Licensee granted certain rights to the use of trademarks, including COCKTAILS NATURALLY which have been registered with the patent Office of the United States.” The agreement further provided that the “[s]ub-licensee [plaintiff] regognizes [sic] the benefits to be derived from being identified with and sub-licensed by Company [Innovative Concepts and The Buffer Zone], and being able to utilize the systems, patents, name and marks which Company makes available to its Sub-Licensee.” (Emphasis added.) It is our opinion that these representations were substantially associated with plaintiff’s business such that the second statutory requirement was satisfied.

The final statutory requirement is that plaintiff must have paid a fee of $100 or more to be granted the right to engage in the business. Plaintiff asserts, and none of the defendants dispute, that he paid $22,500 for the right to engage in his business. Thus, the third requirement of the statute has been satisfied in this case.

Having determined that each of the statutory requirements has been satisfied with respect to the existence of a franchise, we next consider whether plaintiff satisfied the notice requirement to properly rescind the sale of the franchise. Under the Franchise Act, it is unlawful to sell a franchise without providing an effective disclosure statement to the purchaser. (Ill. Rev. Stat. 1985, ch. 1211/2, par. 704(2); Brenkman, 87 Ill. App. 3d at 1064.) Where such an unlawful sale occurs, the purchaser shall have a right to rescind the sale provided that notice is sent to all parties from whom recovery will be sought. (Brenkman, 87 Ill. App. 3d at 1064.) Notice is timely if it is provided within 90 days from the time that the purchaser first had knowledge of a violation of the Franchise Act. Ill. Rev. Stat. 1985, ch. 1211/2, par. 721(2)(b); Brenkman, 87 Ill. App. 3d at 1064.

In the case at bar, defendants Licari, The Buffer Zone, and Innovative Concepts argue that plaintiff did not satisfy the notice requirements in that he did not provide notice within 90 days from the time in which he first had knowledge of a violation of the Franchise Act. Plaintiff testified that he first became aware of the possible violation of the Franchise Act on October 22, 1986, after he had a meeting with his accountant. Plaintiff contacted an attorney after this meeting and was informed that the agreement may have “involved” the Franchise Act.

While defendants admit that plaintiff served notice within 90 days from October 22, 1986, they contend that plaintiff became aware of the alleged violation before October 22, 1986. To support this position, defendants argue that plaintiff hired an attorney to review the agreement before plaintiff signed the agreement. Thus, according to defendants, any violation of the Franchise Act should have been known at that time. We disagree.

Plaintiff’s testimony as to when he first became aware of the application of the Franchise Act to the agreement at issue is not contradicted. In addition, the record does not support defendants’ contention that plaintiff learned of the violation before he signed the agreement. We therefore hold that plaintiff satisfied the notice requirements of the Franchise Act.

We thus conclude that the trial court erred in determining that the agreement at issue in the case at bar did not fall within the purview and intent of the Franchise Act. We make this determination after considering that the Franchise Act was enacted to protect Illinois residents from being misled into making investments for a franchise without first having the information necessary to make an intelligent decision. (Ill. Rev. Stat. 1985, ch. 1211/2, par. 702(1); Vitkauskas, 157 Ill. App. 3d at 325.) The statute was passed to remedy the perceived evil of nondisclosure in a franchise purchase and, as such, must be liberally construed to carry out legislative intent. (Geri’s West, Inc. v. Ferrall (1987), 153 Ill. App. 3d 579, 583.) As a result, plaintiff has presented a prima facie case for the full amount paid for the franchise ($22,500), along with interest at the legal rate from the date of payment (June 6, 1986), less any income received on the franchise ($900), along with reasonable attorney fees. See Ill. Rev. Stat. 1985, ch. 1211/2, par. 721(2)(a).

Plaintiff next contends that the trial court erred in directing a verdict in favor of all defendants on his common-law fraud counts. Plaintiff argues that he presented evidence as to each element of a prima facie case of fraud such that the jury could have found in his favor.

A directed verdict is proper only in those cases in which all of the evidence, when viewed in the aspect most favorable to the opponent, so overwhelmingly favors the movant such that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510; Ketchum v. Dura-Bond Concrete, Inc. (1989), 179 Ill. App. 3d 820, 828-29.

In order to establish a prima facie case of common-law fraud, the plaintiff must show: (1) that the defendant made a statement; (2) of a material nature as opposed to an opinion; (3) that was untrue; (4) that was known or believed by the person making the statement to be untrue, or made in culpable ignorance of its truth or falsity; (5) that the victim relied upon to his detriment; (6) that the statement was made for the purpose of inducing reliance; and (7) that the victim’s reliance led to his injury. (Richard/Allen/Winter, Ltd. v. Waldorf (1987), 156 Ill. App. 3d 717, 721; Parsons v. Winter (1986), 142 Ill. App. 3d 354, 359.) The plaintiff must prove these elements by clear and convincing evidence. Parsons, 142 Ill. App. 3d at 359.

In his amended complaint, plaintiff alleged that defendants made fraudulent misrepresentations concerning the use of trademarks and patents, marketing and training systems, the financial stability of the business and its projected earnings, and the lack of competition for the product. Plaintiff alleged that defendants knew that the representations “were highly unlikely to be true,” and that plaintiff relied upon the representations to his detriment.

The trial court determined that plaintiff failed to sustain his burden of proof, finding that there were no material representations of present fact. The court also determined that plaintiff had no right to rely on any of the representations, in that by signing the contract, plaintiff “agreed that all these things were merged in the contract.” The court also determined that plaintiff failed to present prima facie evidence of damages.

Defendant Licari contends that our supreme court’s decision in Miller v. Whelan (1895), 158 Ill. 544, supports the trial court’s ruling that the representations made before the agreement was signed merged into the agreement and cannot be relied upon to support his allegations of fraud. In Miller, the court stated that a trial court may permit a merger if the purposes of justice and the intentions of the parties require it. (Miller, 158 Ill. at 555.) However, the court specifically stated that the rule “will not be permitted to be used for the accomplishment of fraud, or of injustice and wrong to others.” (Miller, 158 Ill. at 555.) In the instant case, plaintiff has alleged fraud in his amended complaint. We do not believe that the ends of justice will be served by allowing the merger clause in the agreement to mask the allegations of fraudulent misrepresentation in plaintiff’s amended complaint.

We now turn to plaintiff’s allegations of fraudulent misrepresentation. Plaintiff alleged that defendants represented the existence of patents and trademarks, even though there was no evidence indicating the existence of any patents or trademarks. At trial, plaintiff served defendant Licari with a subpoena requesting defendant to bring in documents showing the existence of patents or trademarks. Licari stated that “these documents don’t exist.” Licari also stated that he did not investigate whether a patent existed before putting language in the agreement stating that a patent and trademark were available for plaintiff’s use.

Defendants argue that plaintiff presented no evidence that the patents did not exist, that the existence of the patents was not material to the transactions, and that plaintiff did not rely upon the representations. We disagree. It was undisputed that defendants represented to plaintiff the existence of patents or trademarks, yet there was no evidence at trial as to their existence. Defendants point out that plaintiff did not request evidence of the patents until Licari was served with a subpoena on the day before the trial. The trial court was concerned with the fairness of the timing of plaintiff’s subpoena, and worked out a compromise between the parties as to when Licari would have to produce the documents. Licari failed to produce any documents. It is also apparent that plaintiff relied on the representations, in that he was told of the benefits of being associated with a “name image” like Cocktails Naturally before he signed the agreement.

Plaintiff also alleged that defendants’ representation that “virtually no competition existed for Cocktails Naturally” was false and caused him to rely on the statement to his detriment. Defendants emphasized the lack of competition on several occasions in the sales manual and sublicensee program description document. In the sublicensee program document, it was stated that there was “no competition on three levels-PRICE, QUALITY and CONVENIENCE.” Evidence of direct competition to Cocktails Naturally was presented at trial. Plaintiff also testified that the lack of competition was an important factor in his decision to sign the agreement.

Defendants argue that the representation of “virtually no competition” was simply an opinion or mere “puffing,” and therefore was not a fraudulent misrepresentation. Defendants cite Spiegel v. Sharp Electronics Corp. (1984), 125 Ill. App. 3d 897, to support their position. In Spiegel, the court held the representations that a photocopier would make “picture perfect copies” and would “reduce error and paper waste” were mere opinions and hence not actionable. (Spiegel, 125 Ill. App. 3d at 902.) In addition, in Zimmerman v. Northfield Real Estate, Inc. (1986), 156 Ill. App. 3d 154, the court held that descriptions of a house as “magnificent” and “comfortable” were subjective descriptions and thus could not qualify as fraudulent misrepresentations. Zimmerman, 156 Ill. App. 3d at 163.

In the case at bar, the evidence did not indicate that the oral and written assertions concerning a lack of competition were mere opinion or “puffing.” There was evidence that another product, Lani-Kai, was in direct competition with Cocktails Naturally. In addition, defendant Licari was engaged in a plan of marketing a competing product. Given this evidence of actual competition, a jury could reasonably find that plaintiff relied upon defendants’ representations as statements of fact and not as subjective descriptions or mere opinion.

As to plaintiff’s allegations concerning marketing, training, financial stability and sales projections, it is our opinion that a jury could find that plaintiff reasonably relied on defendants’ alleged untrue representations. Considered together, these representations painted a picture of a company which would “be with [plaintiff] every step of the way.” Plaintiff was given a financial statement which Licari described as a mere “projection” and was not known to be accurate. In addition, the sales projections plaintiff received were at an extreme variance from the actual sales that Licari experienced during the first half of 1986. Plaintiff was also told that he would receive the benefits derived from a national advertising and marketing campaign which apparently never materialized.

Defendant Licari also argues that plaintiff’s credibility was destroyed when he admitted, among other things, that he was selling Fosdick turkeys with Licari’s assistance. However, defendant fails to realize that the credibility of witnesses, including plaintiff, is for the trier of fact to determine. (National Bank v. County of Will (1987), 151 Ill. App. 3d 957, 959.) The jury, as the trier of fact on the common-law fraud counts, never got to consider the weight and quality of the evidence because the trial court directed a verdict in favor of all defendants.

We find that plaintiff has made out a prima facie case of fraud, and thus hold that the trial court erred in directing a verdict in favor of defendants Licari, The Buffer Zone, Inc., and Innovative Concepts.

We next address whether the trial court erred in directing a verdict in favor of defendants V.R, Bantam, and Frank and Robert Contaldo (the Contaldos). These defendants argue that they did not make any representations, fraudulent or otherwise, and were acting simply as a broker or messenger between plaintiff and defendant Licari. As such, these defendants contend that plaintiff failed to present a prima facie case of fraud as to them. We agree.

A review of the record indicates that these defendants were business brokers between Licari’s corporations and plaintiff. Plaintiff’s only contacts with these defendants included the initial meeting, which introduced plaintiff to the product, and the meeting at which time plaintiff signed the agreement. A representative of Bantam was also present at plaintiff’s first meeting with Licari, apparently to introduce plaintiff to Licari. There was no evidence to indicate that any of these defendants made any of the representations that plaintiff alleged were fraudulent. Instead, it was Licari who made the misrepresentations to plaintiff.

We do not believe that V.R., Bantam, or the Contaldos, acting as business brokers, had a duty to independently substantiate Licari’s representations absent any facts indicating that the representations were untrue. (Munjal v. Baird & Warner, Inc. (1985), 138 Ill. App. 3d 172, 182; Lyons v. Christ Episcopal Church (1979), 71 Ill. App. 3d 257, 260; Restatement (Second) of Agency §348, comment b (1958).) These defendants had no reason to believe that Licari’s representations were false, any more than plaintiff had any reason to believe they were false. Absent any duty or reason to investigate Licari’s representations, we do not believe that these defendants should be held liable for Licari’s misrepresentations. Thus, the trial court properly directed a verdict in favor of defendants V.R., Bantam, and the Contaldos.

Plaintiff’s final contention on appeal is that the trial court’s finding in favor of all defendants on counts VI and VII of his amended complaint was against the manifest weight of the evidence. In counts VI and VII, plaintiff alleged a violation of the Consumer Fraud Act (Ill. Rev. Stat. 1985, ch. 121V2, par. 261 et seq.). Section 2 of the Consumer Fraud Act states, in pertinent part:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.” (Ill. Rev. Stat. 1985, ch. I2IV2, par. 262.)

The Consumer Fraud Act is intended to provide broader consumer protection than the common-law action of fraud. (Munjal, 138 Ill. App. 3d at 182; Kellerman v. Mar-Rue Realty & Builders, Inc. (1985), 132 Ill. App. 3d 300, 306.) As such, a plaintiff alleging a violation of the Consumer Fraud Act is not required to establish all of the elements of fraud. A plaintiff is not required to show actual reliance on the misstatements and can also recover for innocent misrepresentations. (Munjal, 138 Ill. App. 3d at 182-83; Beard v. Gress (1980), 90 Ill. App. 3d 622, 627-28.) It has been stated that the legislature has sent a mandate to the courts to utilize the Consumer Fraud Act to eradicate all forms of deceptive and unfair business practices. Buzzard v. Bolger (1983), 117 Ill. App. 3d 887, 893; Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 198.

We have already determined that plaintiff stated a prima facie case of common-law fraud as to defendants Licari, The Buffer Zone, and Innovative Concepts. After considering all of the evidence adduced at trial, we believe that this determination is sufficient to warrant the conclusion that the same acts violated the Consumer Fraud Act because the Act prohibits any misrepresentation at all. (See Zimmerman, 156 Ill. App. 3d at 168.) Defendants painted an inaccurate and deceptive picture of a company supporting plaintiff with trademarks, patents, advertising, marketing, training, and promotional support, without any competing products to contend with. This conduct of defendants was misleading and deceptive within the meaning of the Consumer Fraud Act. As such, we hold that the trial court’s directed finding as to these defendants was against the manifest weight of the evidence.

As to defendants V.R., Bantam, and the Contaldos, we have already determined that plaintiff failed to state a prima facie case as to the common-law fraud counts. We have already determined that these defendants did not make any fraudulent misrepresentations or omissions. In addition, a review of the record fails to reveal that these defendants participated in any deceptive acts or conduct. The Consumer Fraud Act is not intended to transform nondeceptive and non-fraudulent statements or omissions into actionable ones. Kellerman, 132 Ill. App. 3d at 306.

We do not agree with plaintiff’s contention that these defendants have violated the Consumer Fraud Act, and thus hold that the trial court properly directed a finding in favor of these defendants. In addition, we also believe that the court properly directed a finding in favor of defendant American Triad Corporation, as there was no evidence that this corporation made any fraudulent misrepresentations or in any way participated in any activity which violated the Consumer Fraud Act.

For the above-stated reasons, the judgment of the circuit court of Kane County with respect to count I of plaintiff’s amended complaint is reversed and remanded as to all defendants except American Triad Corporation. On remand, the trial court should proceed with count I as though the court had originally denied defendants’ motion for a directed finding. (See 107 Ill. 2d R. 366(b)(3)(iii); Wilbur v. Potpora (1984), 123 Ill. App. 3d 166, 171.) As to counts II through V (common-law fraud), the judgment as to defendants The Buffer Zone, Inc., Innovative Concepts, and Licari is reversed, and the cause remanded for a new trial. In addition, with respect to counts VI and VII (consumer fraud), the judgment as to defendants The Buffer Zone, Inc., Innovative Concepts, and Licari is reversed and remanded with directions that the trial court proceed with the counts as though defendants’ motion for a directed finding was originally denied. (See 107 Ill. 2d R. 366(b)(3)(iii); Wilbur, 123 Ill. App. 3d at 171.) As to defendants V.R., Bantam, and the Contaldos, the judgment with respect to counts II through VII is affirmed. With respect to defendant American Triad Corporation, the judgment as to all counts is affirmed.

Affirmed in part; reversed in part and remanded.

UNVERZAGT, P.J., and REINHARD, J., concur.

APPENDIX A


source: Caselaw Access Project

author: JUSTICE HEIPLE JUSTICE STOUDER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. WILMER BROCKMAN et al., Defendants (Wilmer Brockman, Jr., d/b/a Brockman Sanitary Service, Third-Party Plaintiff-Appellant; AAA Disposal Systems, Inc., et al., Third-Party Defendants-Appellees).—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. WILMER BROCKMAN et al., Defendants (Wilmer Brockman, Jr., d/b/a Brockman Sanitary Service, Appellant; AAA Disposal Systems, Inc., et al., Appellees).—THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v. WILMER BROCKMAN, JR., et al., Defendants (Pioneer Equities, Inc., et al., Appellants; John Mathes and Associates, Inc., et al., Appellees).
    Third District
    Nos. 3—87—0641, 3—87—0643 cons.
    Opinion filed December 15, 1989.
    Modified on denial of rehearing February 5, 1990.

      STOUDER, J., dissenting.
    Armstrong, Surin & Engels, of Ottawa (Craig M. Armstrong and Keith R. Leigh, of counsel), for appellant Wilmer Brockman, Jr.
    Keith R. Leigh, of Seneca, William A. Speary, Jr., of Tenney & Bentley, of Chicago, and S. Louis Rathje, of Rathje, Woodward, Dyer & Burt, of Wheaton, for other appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Pamela M. Ciarrocchi, Assistant Attorney General, of Chicago, of counsel), for appellee Environmental Protection Agency.
    Fred C. Prillaman and Lisa A. Manion, both of Mohan, Alewelt & Prillaman, of Springfield, for appellees John Mathes & Associates and Gary Mathes.
    Dixie L. Laswell, of Coffield, Ungaretti, Harris & Slavin, of Chicago (Fred C. Prillaman, of counsel), for appellee Borg Warner Chemicals, Inc.
    Harvey M. Sheldon and Shell J. Bleiweiss, both of McDermott, Will & Emery, of Chicago, for appellee Amoco Chemical Company.
    Percy L. Angelo and Vincent B. Olcazkiewicz, both of Mayer, Brown & Platt, of Chicago, for appellee Motor Wheel Corporation.
    Michael S. Guilfoyle, of Mendota, for appellee HOF Sanitation Service.
    Michael T. Reagan, of Ottawa, for appellee AAA Disposal Systems, Inc.
    Henry J. Handzel, of DeWitt, Porter, of Madison, Wisconsin, for appellee Midwest Plating Corporation.
    Donald L. Shriver, of Law Offices of Donald L. Shriver, of Rockford, for appellee Interstate Pollution Controls.
    Louis M. Rundió, Jr., and Susan E. Cox, both of McDermott, Will & Emery, of Chicago, for appellee Conservation Chemical Company of Illinois.
    Paul Perona, of Perona Law Offices, of Peru, and Nancy Bryson and R. Timothy McCrum, both of Crowell & Moring, of Washington, D.C., for appellee Environmental Systems Company
    Darleen J. Stockley, of Pool & Stockley, of Ottawa, and R. Davy Eagles-field, of Cromer, Eaglesfield & Maher, of Indianapolis, Indiana, for appellee Chrysler Corporation.
    Barbara B. Guibord and Natalie A. Walsh, both of Katten, Muchin & Zavis, of Chicago, for appellees Browning Ferris of Illinois and Van Der Molen Disposal.
   JUSTICE HEIPLE

delivered the opinion of the court:

The plaintiff, the State of Illinois, filed a complaint on September 22, 1981, against the defendant and third-party plaintiff Wilmer Brockman, Jr., a landfill operator of a 25-acre tract of land in La Salle County, Illinois, commonly referred to as the Brockman I landfill. The State’s complaint alleged that from August 1970 through September 1979, Brockman improperly operated the Brockman I landfill in violation of various provisions of the Illinois Environmental Protection Act (IEP Act) (Ill. Rev. Stat. 1987, ch. HV-lz, par. 1001 et seq.). Specifically, the State alleged that Brockman permitted the open burning of refuse, that the landfill accepted and disposed of unpermitted special wastes, and that the site created a water pollution hazard. The State’s prayer for relief requested the following: injunctive relief; installation of monitoring wells; an order directing Brockman to bring the site into compliance with the IEP Act; the imposition of civil penalties in the amount of $10,000 for each violation of the IEP Act and $1,000 for each day that a violation is established; the assessment of costs and fees; and any other additional relief that is appropriate.

On April 15, 1987, Brockman filed a third-party complaint seeking to join numerous generators and transporters who had allegedly contributed to the disposal of unpermitted wastes at the Brockman I landfill. On July 15, 1987, the trial court ruled in favor of motions to dismiss by various third-party defendants, dismissing Brockman’s third-party actions against generators and transporters with prejudice. On August 12, 1987, Brockman then filed a motion to vacate the trial court’s dismissal order. In his motion to vacate, Brockman also sought leave of court to file a second amended third-party complaint joining 23 additional generators and transporters of the Brockman I landfill. After a hearing on the motion, the trial court denied Brock-man’s motion to vacate and for leave to file a second amended third-party complaint. Brockman appeals both the dismissal of his original third-party complaint and the denial of his motion to vacate which requested leave to file a second amended third-party complaint.

The State, in its September 22, 1981, complaint, also brought suit against defendant and third-party plaintiff Pioneer Equities, Inc. (Pioneer), alleging that since October 1, 1979, Pioneer caused or allowed the Brockman I landfill to be operated in such a manner as to permit “leachate” from the refuse disposed of at the site to be discharged, causing a water pollution hazard in violation of the IEP Act and resulting in a common law public nuisance. The State’s complaint sought the following relief from Pioneer: an injunction ordering the abatement of the public nuisance and cessation of various statutory violations; an order directing Pioneer to bring the landfill into compliance with the IEP Act; the imposition of civil penalties in the amount of $10,000 for each violation of the IEP Act and $1,000 for each day that said violation is established; the assessment of costs and fees; and any additional appropriate relief.

On April 15, 1987, Pioneer filed a third-party complaint against John Mathes, a contractor hired by the Illinois Environmental Protection Agency, alleging that Mathes drilled various monitoring wells through garbage cells located at the Brockman I landfill, causing the discharge of “leachate” and resulting in a water pollution hazard. On July 31, 1987, the trial court granted Mathes’ motion to dismiss Pioneer’s third-party complaint. Pioneer appeals the trial court’s dismissal of its third-party complaint.

In its simplest form, this appeal involves the question of whether third-party actions are allowed when the State brings an action in civil court seeking injunctive relief, civil penalties, and clean up costs for violations of the Illinois Environmental Protection Act. A similar issue was presented to this court in the case of People v. Fiorini (1989), 192 Ill. App. 3d 396, which was consolidated with the instant case for purposes of oral arguments. Both the case at bar and Fiorini were heard before La Salle County Circuit Judge Thomas Flood. In Fiorini, the third appellate district court found that the IEP Act and the Illinois Code of Civil Procedure promoted allowing third-party actions, and therefore reversed Circuit Judge Flood’s dismissal of the Fiorinis’ third-party action. Likewise, this court finds that Circuit Judge Flood erred in dismissing Brockman’s and Pioneer’s third-party actions. In order to thoroughly explain the holding reached by this court and to resolve all issues raised by the parties, this court will take the following steps. First, the court will dispel all of those claims asserted by Brockman that are without merit. Second, the court will address Brockman’s claim based on section 22.2 of the Illinois Environmental Protection Act. Finally, this court will address whether the trial court erred in dismissing both Brockman’s and Pioneer’s third-party claims based on the Illinois Contribution Act.

Initially, this court notes that Brockman did not attempt to amend his third-party complaint until July 15, 1987, a full three months after the trial court’s deadline for adding new legal theories. Permission to allow an amendment to a third-party complaint rests within the sound discretion of the trial court, and its decision "will not be disturbed absent an abuse of that discretion. (Oldenburg v. Hagemann (1987), 159 Ill. App. 3d 631.) We find that the trial court did not abuse its discretion in denying Brockman’s motion for leave to amend his third-party complaint based on the fact that Brockman attempted to plead numerous new legal theories at such a late date. However, as is noted later in this opinion, this court is directing the trial court to permit Brockman to amend his pleadings with regard to two of his third-party claims which were brought in his original third-party complaint; the nature of those claims being a private cause of action under section 22.2 of the IEP Act and a claim under the Illinois Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). Thus, this ruling shall not prejudice Brockman’s right to bring in additional parties, which Brockman also requested in his amended third-party complaint, if he chooses to replead under those two theories. Notwithstanding, on appeal, this court will focus primarily on the trial court’s dismissal of Brockman’s original third-party complaint.

Brockman’s original third-party complaint contained the following six counts: (I) private cause of action under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) (42 U.S.C. §9601 et seq. (1982)); (II) private cause of action under the hazardous waste section of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. lll1^, par. 1022.2); (III) private cause of action under section 113(b)(i) of the Superfund Amendments and Reauthorization Act of 1986 (CERCLA amendments); (IV) alleged liability pursuant to Federal common law apportionment; (V) alleged liability under the theory of quantum meruit; and (VI) a claim for contribution under the Illinois Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). Brockman’s original third-party complaint named 43 third-party defendants as well as unknown generators joined as “John Doe, et al. Brockman.”

Counts I and III of the original third-party complaint were properly dismissed since State courts do not have jurisdiction over Federal CERCLA cases. (42 U.S.C. §9613(b) (1982).) Count IV, which purported to state a cause of action for equitable apportionment under the Federal common law, was properly dismissed because Federal environmental common law only applies to interstate pollution settings. (United States v. Price (N.J. 1981), 523 F. Supp. 1055.) Count V, which stated a cause of action for quantum meruit based on Brock-man’s claim that he may be forced to expend large sums of money in cleaning up the landfill, was properly dismissed since Brockman failed to allege that the third-party defendants received a benefit from Brockman and were therefore unjustly enriched. Therefore, this leaves counts II and VI remaining.

Count II of Brockman’s third-party complaint attempted to state a private cause of action under the hazardous waste fund section of the IEP Act. Initially, we respond to the third-party defendants’ claim that since the State did not specifically allege a violation of section 22.2 in its complaint against Brockman, count II of Brockman’s third-party complaint should be dismissed since this claim is separate and distinct from the underlying action. As was established in Filip ponio v. Bailitz (1978), 73 Ill. App. 3d 389, and reiterated in Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196, 201:

“Although third-party practice is properly used to reduce litigation where the third-party claim arises out of the same basic facts which determine the plaintiffs claim against the defendant, it can not be used to maintain an entirely separate and independent claim against a third-party, even if it arises out of the same general set of facts as the main claim.”

Count V of the State’s amended complaint sought the abatement of a public nuisance and prayed for an injunction, a prohibition of depositing further wastes, corrective action to remove toxic wastes, and any other appropriate relief. Thus, a portion of the State’s action against Brockman sought to have the toxic wastes removed in order to clean up the landfill. Section 22.2 concerns the liability of persons for costs incurred by the State in removing hazardous substances deposited at facilities. Consequently, we find that Brockman’s count II is derivative of the State’s action and is not an entirely separate or independent claim. The third-party defendants may be partially liable to Brockman for the costs of cleaning up the landfill, which was part of the main claim brought against Brockman, and is therefore a proper claim under third-party proceedings. Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196.

Next, we must decide if the statutory language of section 22.2 envisions permitting third-party actions. Section 22.2 provides in relevant part:

“(f) Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (j) of this Section, the following persons shall be liable for all costs of removal or remedial action incurred by the State of Illinois as a result of a release or substantial threat of a release of a hazardous substance:
(1) The owner and operator of a facility or vessel from which there is a release or substantial threat of release of a hazardous substance;
(3) Any person who by contract, agreement, or otherwise has arranged with another party or entity for transport, storage, disposal or treatment of hazardous substances owned, controlled or possessed by such person at a facility owned or operated by another party or entity from which facility there is a release or substantial threat of a release of such hazardous substances; and
(4) Any person who accepts or accepted any hazardous substances for transport to disposal, storage or treatment facilities or sites from which there is a release or a substantial threat of a release of a hazardous substance.
Any monies received by the State of Illinois pursuant to paragraph (f) of this Section shall be deposited in the state Treasury to the credit of the ‘Hazardous Waste Fund.’
(g)(1) No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or substantial threat of a release under this Section, to any other person the liability imposed under this Section. Nothing in this Section shall bar any agreement to insure, hold harmless or indemnify a party to such agreements for any liability under this Section.
(2) Nothing in this Section, including the provisions of paragraph (g)(1) of this Section, shall bar a cause of action that an owner or operator or any other person subject to liability under this Section, or a guarantor, has or would have, by reason of subrogation or otherwise against any person.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. HV-k, par. 1022.2.)

Thus, under the statutory scheme of section 22.2, generators of hazardous substances who contract to transport those substances to another facility may be liable for remedial action incurred by the release of those hazardous substances. Likewise, transporters may be liable for" remedial costs caused by the release of hazardous substances. Further, under section 22.2, an owner or operator of a facility where hazardous substances are released is not barred from bringing a cause of action against others “by reason of subrogation or otherwise.”

The third-party defendants argue that under the statutory framework of the IEP- Act, Brockman must first exhaust administrative remedies before the Illinois Pollution Control Board before attempting to bring the third-party defendants into civil court pursuant to section 22.2. (Ill. Rev. Stat. 1987, ch. llN/a, pars. 1022.2(i), 1031(b), 1045(b).) These sections of the IEP Act, which refer to the exhaustion of administrative remedies, however, only require that private parties file a complaint with the Pollution Control Board before initiating a private cause of action in civil court. In the case at bar, the State of Illinois is the plaintiff who chose to file an action in civil court. Hence, the requirement that private parties exhaust administrative remedies under the IEP Act does not apply.

The third-party defendants also contend that since the issue of cost recovery for cleaning up the Brockman I landfill and the issue of possible liability of generators or transporters is being addressed in a separate administrative proceeding, pursuant to section 4(q) of the IEP Act, a third-party action in civil court, based on section 22.2 or the IEP Act, should not be permitted. (Ill. Rev. Stat. 1987, ch. HV-k, par. 1004(q).) Once again, this court points out that it was the State who opted to seek relief both in civil court and through administrative proceedings. The State’s civil complaint, among other things, seeks to force Brockman to clean up the landfill in order to bring the landfill into compliance with the IEP Act. Thus, the State is pursuing clean up costs both in the administrative proceeding and in civil court.

As was discussed by this court in People v. Fiorini, we find that under these circumstances the IEP Act does not preclude third-party actions for two important reasons. First, the legislative declaration of the IEP Act promotes providing private remedies against those who cause adverse effects to the environment. Section 2 of the IEP Act, which sets forth the legislative declaration, provides in pertinent part:

“(a) ***
(v) that in order to alleviate the burden on enforcement agencies, to assure that all interests are given a full hearing, and to increase public participation in the task of protecting the environment, private as well as governmental remedies must be provided; ***
(b) It is the purpose of this Act, as more specifically described in later sections, to establish a unified, statewide program supplemented by private remedies, to restore, protect and enhance the quality of the environment, and to assure that adverse effects upon the environment are fully considered and borne by those who cause them.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. pars. 1002(a)(v), (b).)

Thus, since the IEP Act is silent with respect to third-party actions, we find that allowing third-party actions is more consistent with the purposes of the IEP Act as expressed in the legislative declaration.

Secondly, section 2 — 406 of the Illinois Code of Civil Procedure allows defendant to join as third-party defendants anyone against whom he may have a possibility of recovery on account of the plaintiff’s claimed damages. (Ill. Rev. Stat. 1987, ch. 110, pars. 2—406(a), (b); Embree v. DeKalb Forge Co. (1964), 49 Ill. App. 2d 85.) The purpose of this section is to avoid a multiplicity of actions and a repetition of proof by permitting a determination of all claims in a single action. (Security Insurance Co. v. Moto (1973), 13 Ill. App. 3d 11.) Here, the State, in civil court, seeks remediation costs to bring the landfill into compliance with the IEP Act, and Brockman seeks to bring in third-party defendants, who allegedly dumped unpermitted waste at the site, to help pay for the clean up costs. Under this set of circumstances, the filing of a third-party action was proper.

Consequently, this court finds that the trial court incorrectly dismissed count II of the defendants’ third-party complaint for failure to state a claim for which relief could be granted. Rather than dismissing count II outright, the trial court should examine the merits of the defendants’ claim.

Count VI of Brockman’s third-party complaint attempts to state a cause of action under the Illinois Contribution Act, which provides in relevant part:

“[Wjhere 2 or more persons are subject to liability in tort arising out of the same injury to person or property *** there is a right of contribution among them, even though judgment has not been entered against any or all of them.” Ill. Rev. Stat. 1987, ch. 70, par. 302(a).

Circuit Judge Thomas Flood made the following statements with regards to Brockman’s contribution claim when he dismissed Brock-man’s third-party complaints:

“The Motion[s] To Dismiss the Third-Party Complaints are allowed. And the Third-Party Complaints will be dismissed with prejudice on the ground that it is [sic] not a proper vehicle for contribution. ***
Basically it boils down to the fact that this is not a tort action. Whether the State in its original Complaint used the word tortious conduct or not, that does not convert this into a tort action within the meaning of the Contribution Act.”

Similarly, Judge Flood made the following remarks concerning Pioneer’s contribution claim when he dismissed Pioneer’s third-party complaint.

“However the feeling of this Court, that although you referred to abatement of a nuisance and a tort, the Contribution Act, I do not think, intends to pay the expense of abating a nuisance nor the penalties imposed for having created [it] in the first place. And this is just not within the purview of the Contribution Act as far as this Court is concerned.
I think that in addition to having a tort involved, you must have damages which you are paying which they must then reimburse you for. Rather than, than the type of thing where you are abating a nuisance, getting rid of it, because of something you did, as distinguished from something they did with you.”

We disagree with Judge Flood’s interpretation of the Contribution Act.

In Illinois, an action for a mandatory injunction to abate a public nuisance, such as the one brought by the State in the instant case, is a tort action. The Illinois Supreme Court in Village of Wilsonville v. SCA Services, Inc. (1981), 86 Ill. 2d 1, quoting from Prosser on Torts, defined a public nuisance as “the doing of or failure to do something that injuriously affects the safety, health or morals of the public, or works some substantial annoyance, inconvenience or injury to the public.” (W. Prosser, Torts §88, at 583 n.29 (4th ed. 1971).) The Wilsonville decision further states that “[i]t is generally conceded that a nuisance is remediable by injunction or a suit for damages.” (Wilsonville, 86 Ill. 2d at 22.) Thus, the trial court was incorrect when it stated that this case simply “is not a tort action.”

Moreover, under Illinois law, there exists, among joint tortfeasors, joint and several liability for the common or concurrent injuries or harm caused by their nuisances. (Cook v. City of Du Quoin (1930), 256 Ill. App. 452.) As was stated in City of Du Quoin, where the defendant city was sued under a nuisance theory for damages caused by its water pollution to the property of a downstream owner:

“Though other wrongful acts than that of the defendant city may have been responsible for the collection of this objectionable sewage, such fact furnishes no defense to the defendant city, if it in fact contributed to the nuisance complained of and participated in the pollution of the water that caused injury to appellee. [Citation.]
Where the acts of several persons, although separate and distinct as to time and place, culminate in producing a public nuisance, which injures the person or property of another, they are jointly and severally liable.” City of Du Quoin, 256 Ill. App. at 456.

This court finds the reasoning in City of Du Quoin persuasive in resolving whether the Contribution Act applies to the instant case. As in City of Du Quoin, both Brockman and Pioneer are seeking relief from parties who allegedly contributed to the creation of a public nuisance at the Brockman I landfill. Brockman attempts to bring in as third-parties generators and transporters of unpermitted waste. Pioneer seeks to bring in as a third-party Mathes, who allegedly drilled through garbage cells at the landfill, causing the discharge of pollutants into the groundwater. It is conceivable that all of these actions, although separate and distinct in time and conduct, contributed to Brockman I landfill becoming a public nuisance. Consequently, since the State is seeking clean up costs in order to abate Brockman I landfill as a public nuisance, this court finds that a third-party action for contribution is within the purview of the Contribution Act.

In so finding, however, we do not rule on the merits of either Brockman’s or Pioneer’s contribution claims. We simply hold that the trial court erred in ruling that the Contribution Act had no application to the instant case. Using the language from the Contribution Act, it is possible that Brockman and the generators and transporters or Pioneer and Mathes are “2 or more persons *** subject to liability in tort arising out of the same injury” and as such, “there is a right of contribution among them.” Yet, as was stated in Fiorini, contribution would not apply to offset any fines or penalties assessed against either Brockman or Pioneer under section 42 of the IEP Act. Ill. Rev. Stat. 1987, ch. 1111/2, par. 1042.

In summary, this court finds that the trial court improperly dismissed Brockman’s and Pioneer’s contribution claims, without examining the merits of their claims. Likewise, the trial court erred in dismissing outright Brockman’s third-party claim based on section 22.2 of the IEP Act. Additionally, this court finds that Brockman and Pioneer should be allowed to fashion an amended complaint with regard to these claims, if the instant claims are deemed insufficient. Only if Brockman and Pioneer cannot plead facts sufficient to support these third-party claims should the complaints be dismissed.

Therefore, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

BARRY, J., concurs.

JUSTICE STOUDER,

dissenting:

For the reasons set forth in my dissent in People v. Fiorini (1989), 192 Ill. App. 3d 396, as applicable to the instant case, and for the additional reasons stated below, I respectfully dissent from the majority opinion.

The majority holds that the trial court erred in dismissing that portion of Brockman’s complaint which alleged a claim under section 22.2 of the Illinois Environmental Protection Act (Ill. Rev. Stat. 1987, ch. 1111/2, par. 1022.2). Initially, I note, the amended complaint filed by the State in the original action did not allege a cause of action under section 22.2. Brockman’s claim is therefore separate and independent from the claim brought by the State. Although third-party practice is properly used to reduce litigation where the third-party claim arises out of the same basic facts which determine the plaintiff’s claim against the defendant, it cannot be used to maintain an entirely separate and independent claim against a third party, even if it arises out of the same general set of facts as the main claim. Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196, 496 N.E.2d 1104.

Even though the State did not bring an action under section 22.2, the majority finds that because the State sought an injunction to clean up the site, this makes Brockman’s claim under section 22.2 derivative of the State’s action. I find this analysis unpersuasive. Count V of the State’s amended complaint alleged that contamination of the groundwater and surface water as a result of waste material deposited on the site constituted a public nuisance under the common law. In count V, the State requested an injunction to prevent further dumping at the site and to require the defendants to take corrective action to remove potentially toxic or hazardous waste. Section 22.2(f), on the other hand, concerns the liability of certain persons “for all costs of removal or remedial action incurred by the State of Illinois as a result of a release or substantial threat of a release of a hazardous substance.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. HV-k, par. 1022.2(f).) All monies received by the State pursuant to section 22.2(f) are credited to the State’s “Hazardous Waste Fund.” The request for an injunction to abate a public nuisance has nothing to do with recovering the cost incurred by the State in cleaning up or removing a hazardous substance.

In addition, the majority does not point to any authority for a third-party action under section 22.2. Nor does it cite any authority for the use of third-party actions in causes seeking injunctive relief.

The majority also holds that since the State is seeking clean up costs in order to abate a public nuisance, a third-party action for contribution can be brought pursuant to the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.). I would note that the majority cites no authority for third-party actions involving the abatement of a public nuisance. However, the majority finds that the reasoning of Cook v. City of Du Quoin (1930), 256 Ill. App. 452, supports application of the Contribution Act in the instant case. In City of Du Quoin, the court stated that parties are jointly and severally liable if they contribute to the creation of a public nuisance. However, the case is silent regarding the issue of contribution between the jointly liable parties. The City of Du Quoin involved an action brought by an injured party. The case did not involve an action by one party against other parties who share responsibility for the creation of a public nuisance.

I would also note that the Illinois Supreme Court has recently held that the Contribution Among Joint Tortfeasors Act was meant to create a right of contribution for negligent tortfeasors and that intentional tortfeasors are not entitled to contribution under the Act. (Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 538 N.E.2d 530.) There is no claim that Brockman or the third-party defendants were negligent in violating the IEPA. I do not believe that a violation of the IEPA involves a species of tort subject to contribution under the Contribution Act.

In sum, the majority is attempting to find a way to spread the cost of clean up among co-polluters. It is the province of the legislature, not this court, to provide such a remedy. I would affirm the trial court’s dismissal of the third-party complaints brought by Brockman and Pioneer.


author: JUSTICE DUNN

text:
    SMITH, WATERS, KUEHN, BURNETT & HUGHES, LTD., et al., Plaintiffs-Appellees, v. ROBERT W. BURNETT, Defendant-Appellant.
    Third District
    No. 3—89—0380
    Opinion filed December 20, 1989.
    Rehearing denied February 7, 1990.

      James D. Broadway, of Westervelt, Johnson, Nicoll & Keller, of Peoria (Daniel L. Johns, of counsel), for appellant.
    Walter W. Winget, of Winget & Kane, and Baymiller, Christison & Radley, both of Peoria (James E Kane and Andrew W. Covey, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Robert Burnett (Burnett), appeals from an order of the circuit court of Peoria County granting a preliminary injunction to plaintiffs, Lester Berry Smith (Smith) and Smith, Waters, Kuehn, Burnett & Hughes, Ltd. (SWKB & H). The order restrained Burnett, an attorney, from soliciting clients for workers’ compensation and personal injury cases in most Illinois counties. Burnett argues that the order should be reversed, because: (1) plaintiffs failed to establish the requisites for injunctive relief; (2) the compensation provision in his employment agreement with SWKB & H was vague and indefinite, rendering the agreement unenforceable; (3) such a restriction on an attorney’s ability to practice law violates public policy; and (4) the restrictive covenants in the employment contract were unenforceable. We reverse and remand.

SWKB & H, formerly known as Lester Berry Smith, Ltd., is a professional corporation engaged in the practice of law. The firm has an office in Peoria and specializes in representing injured parties in personal injury and workers’ compensation cases. The firm has an extensive practice throughout southern and central Illinois. Burnett began working for Lester Berry Smith, Ltd., in 1981.

In 1984, Smith, the sole shareholder, decided to sell his stock in the firm. Burnett and three other attorneys from the firm agreed to purchase the stock in February of that year. On February 7, 1984, Smith and the firm executed a contract that was labeled as a consulting agreement. Under the terms of this agreement, Smith was to receive 10% of the total fees collected by the firm for the next 10 years and certain other remuneration. The agreement further provided that Smith could provide consulting services for the firm for three years but was not required to do so.

Section 5.02 of the contract prohibited Smith from soliciting or accepting business from any firm clients for a period of 10 years. This provision also barred Smith during the same period from opening an office within a 50-mile radius of a certain intersection in Peoria, a certain intersection in Urbana, and the county courthouse in Effingham.

The recitals in the beginning of the agreement included the following statement:

“The Consultant will be effectively precluded from receiving the remuneration specified in this Agreement unless each of the Shareholders enter into employment agreements incident to which each is precluded from competing with the Corporation during and after the cessation of their employment with the Corporation for a period of time.”

Each of the four new shareholders, including Burnett, signed employment agreements with the corporation the same day Smith entered into the consulting agreement.

Burnett’s employment agreement contained the following relevant provisions:

“03.01 The Corporation hereby offers to employ the Employee to perform such services in respect of the Business as may periodically be designated by the Corporation and in accordance with such rules, regulations and procedures as may periodically be promulgated by the Corporation.
03.02 The Employee hereby accepts the Corporation’s offer and agrees to work full time and devote the Employee’s attention and best abilities exclusively to the services of the Corporation. The Employee shall refrain from engaging in, directly or indirectly, as an employee or otherwise, any other activity for monetary gain.
04.01 The services shall commence this date and shall continue for an initial term ending March 1, 1994.”

Plaintiffs contend that section 3.02 of the contract is a negative covenant which prohibits Burnett from working for another employer or performing legal services on his own during the term of the agreement which is set forth in section 4.01. Whenever the term “negative covenant” is used in the remainder of this opinion in relation to the employment agreement, it refers to section 3.02. The term “restrictive covenant,” when used in relation to the employment agreement, refers to section 6.02. This provision of the contract prohibits Burnett from doing any of the following during the term of the agreement and for 36 months thereafter: (1) contacting any SWKB & H client for purposes of solicitation; (2) accepting business from any client of the firm; (3) communicating any information concerning firm clients to any person; and (4) having an office within 50 miles of a certain street intersection in Peoria, the courthouse in Effingham, or an intersection in Urbana.

The compensation provision of Burnett’s employment contract is found in section 5.00, which states as follows:

“The Corporation shall pay the Employee, and the Employee agrees to accept for services rendered on behalf of the Corporation, a fixed salary computed at an annual rate periodically determined by the Parties, payable as determined by the Parties.”

Burnett left a letter of resignation on his desk at SWKB & H on May 27, 1989, and opened his own law office in Naperville, Illinois, in Du Page County. On June 6, plaintiffs filed their complaint for preliminary and permanent injunctive relief against Burnett, including an order restraining him from practicing law in Illinois with anyone except SWKB & H until March 1,1994.

A hearing concerning plaintiffs’ request for a preliminary injunction was held on June 13, 1989. Michael Waters testified at the hearing that he was an attorney who worked for SWKB & H and was one of its shareholders. Waters stated that 90% to 95% of the firm’s cases were personal injury or workers’ compensation cases, and the firm took cases from almost anywhere in Illinois south of Interstate 80. Burnett was in charge of the firm’s workers’ compensation calls for the Peoria area and the Champaign area. He also handled some cases on the firm’s Danville call.

Waters stated that due to the nature of the firm’s practice, union business agents were important sources of client referrals and it was essential to maintain contact with these agents. Many union members turned to the agents for advice when they needed to hire attorneys. Burnett kept in contact with the business agents in the Champaign and Danville areas. According to Waters, Burnett had a unique ability to maintain the trust of the agents in those areas.

Smith introduced Burnett to the business agents in the Champaign and Danville areas. Before Smith sold his stock, the firm would rotate attorneys into different areas regularly so they would not develop too close a relationship with the business agents or other important contacts. Smith also did not allow the firm’s attorneys to meet with clients outside the office without his permission. These policies were discontinued after Smith sold his stock because the four new shareholders all signed 10-year employment contracts. Waters stated that Burnett could not have developed his extensive contacts with the business agents and other union personnel were it not for Smith’s introductions.

According to Waters, Burnett possessed confidential information about the firm. This included information about sources of referrals other than business agents, about the financial condition of the firm, and about clients. Waters testified that defendant received over $500,000 in compensation from the firm since signing the employment agreement in 1984, including more than $200,000 in 1988.

In Waters’s opinion, Burnett’s departure had caused harm to the firm. On May 30, 1989, the day Burnett’s resignation letter was found and the following day, a number of clients called and discharged the firm. One client stated that he did not believe the firm had the manpower to handle his case. Waters testified that it would be very difficult to measure in terms of dollars the amount of damage that resulted from Burnett’s departure because it would be hard to determine the fees that would have been generated from the clients who discharged the firm and difficult to determine how many potential clients were lost as a result of Burnett’s actions.

Brian Kuehn, one of the other shareholders at SWKB & H, also testified. Kuehn stated that Burnett knew about the firm’s financial condition and this was very important because many of the clients were not able to finance their litigation. Burnett was also aware that Smith was no longer an active member of the firm.

Kuehn felt it was possible that the names of many union business agents could be discovered merely by telephoning the unions. Burnett was aware, however, that in several unions, the union steward was the primary source of referral rather than the business agents. The names of those stewards would be difficult to discover.

Burnett testified that he informed his colleagues at SWKB & H on or about March 7, 1989, that he would soon be leaving the firm. After leaving SWBK & H, he opened the law office of Robert Burnett, Ltd., in Naperville, Illinois. Burnett admitted that he placed advertisements in local newspapers in Champaign and Danville which appeared shortly after he left SWBK & H. These ads for his new office mentioned his availability for workers’ compensation and personal injury cases.

Burnett testified that after he opened the new office, he accepted business from only one SWBK & H client, and that was with the firm’s permission. Burnett told other SWKB & H clients who called that he had agreed not to solicit any firm clients in his employment contract.

According to Burnett, one of the other shareholders who purchased a portion of Smith’s stock, Henry Gentry, was dismissed from the firm by the other shareholders in 1986. The firm did not seek to enforce the restrictive covenant in Gentry’s employment contract, which was the same agreement Burnett had signed. Another former attorney with the firm, Jay Robeson, who handled workers’ compensation and personal injury cases throughout central Illinois, left in 1984 and was currently specializing in the same fields of law. Robeson never signed an employment agreement with SWKB & H.

SWKB & H currently had two associate attorneys, Steven Glancey and Michael Brandow, neither of whom had signed employment contracts. Glancey had been with the firm two or three years and handled personal injury and workers’ compensation cases throughout central Illinois. Brandow had only been with the firm one or two months.

Burnett testified that the shareholders would agree on compensation from time to time as funds became available. Each of the shareholders received 25% of the available funds. Initially, Burnett had received a lesser percentage than Waters.

The trial court granted plaintiffs a preliminary injunction prohibiting Burnett from soliciting clients for workers’ compensation and personal injury cases in any Illinois county except Cook, Du Page, Will, Kane, McHenry, and Lake. Burnett filed a timely notice of appeal from the preliminary injunction order.

A party must establish the following in order to demonstrate entitlement to injunctive relief: (1) that he or she possesses a clearly ascertained right which needs to be protected; (2) that he or she will suffer irreparable harm without injunctive relief; (3) that there is no adequate remedy at law; and (4) that he or she is likely to be successful on the merits of the case. (Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 672.) Appellate review of an order granting or denying a preliminary injunction is limited to a determination of whether the trial court abused its discretion. Shodeen, 162 Ill. App. 3d at 673.

Burnett initially contends that his employment contract is unenforceable for want of consideration and because of the indefinite nature of the provision concerning compensation. Plaintiffs contend that this argument is without merit since Burnett received over $500,000 in compensation from the firm after executing the employment agreement. We need not consider the issue of whether the agreement is enforceable because even if it is, plaintiffs failed to establish an entitlement to injunctive relief.

Plaintiffs argue that the trial court entered the preliminary injunction in order to protect their rights under sections 3.02 and 4.01 of the employment agreement to have Burnett work exclusively for the firm until March 1, 1994, rather than to enforce their rights under the restrictive covenant in section 6.02. It is well settled that a court may not order specific performance of a contract for personal services. (See Rath v. Degener (1933), 352 Ill. 135, 138; Rabinovich v. Reith (1905), 120 Ill. App. 409, 412.) In Rabinovich defendant entered into an agreement to work for plaintiff as a hat trimmer but left plaintiff’s employ shortly thereafter. Plaintiff sought an injunction to bar defendant from engaging in the occupation of hat trimming in the City of Chicago. The court held that the denial of injunctive relief in Rabinovich was proper, noting that defendant never agreed not to work for any other employer while employed by plaintiff and then stating as follows:

“We find nothing unique or extraordinary in this employment of trimming hats. It is undoubtedly true that appellee is well skilled in her work, but that work is largely mechanical and must follow the prevailing fashion to be acceptable to purchasers. It does not appear that the loss of her services inflicts irreparable damage upon appellants.” Rabinovich, 120 Ill. App. at 418.

Unlike the contract in Rabinovich, Burnett’s employment agreement does contain a negative covenant requiring him to refrain from working with other employers during the duration of his contract with the firm. Although Burnett argues to the contrary, section 3.02 of the agreement states that Burnett will devote his best efforts exclusively to the firm and engage in no other activity for monetary gain. This provision prohibits Burnett from working for another law firm or practicing law on his own during the term of his employment contract.

In several cases from other jurisdictions, courts have held that an injunction will be granted to restrain violation of negative covenants in a personal service contract forbidding employees from working for any other employer during the term of the contract if the employee is an individual of exceptional and unique knowledge and ability in performing the services called for in the agreement. (Dallas Cowboys Football Club, Inc. v. Harris (Tex. Civ. App. 1961), 348 S.W.2d 37, 42; Winnipeg Rugby Football Club v. Freeman (N.D. Ohio 1955), 140 F. Supp. 365, 366-67; Associated Newspapers v. Phillips (2d Cir. 1923), 294 F. 845, 850; Philadelphia Ball Club, Ltd. v. Lajoie (1902), 202 Pa. 210, 212, 51 A. 973, 974.) In most American cases in which courts of review have held that employers were entitled to injunctive relief to restrain violations by former employees of such negative covenants in employment contracts, including three of the four above-cited cases, the former employees were athletes. (See, e.g., Munchak Corp. v. Cunningham (4th Cir. 1972), 457 F.2d 721; Washington Capitols Basketball Club, Inc. v. Barry (9th Cir. 1969), 419 F.2d 472; Houston Oilers, Inc. v. Neely (10th Cir. 1966), 361 F.2d 36; Nassau Sports v. Peters (E.D. N.Y. 1972), 352 F. Supp. 870; Matuszak v. Houston Oilers, Inc. (Tex. Civ. App. 1974), 515 S.W.2d 725; Central New York Basketball, Inc. v. Barnett (1961), 19 Ohio Op. 2d 130, 181 N.E.2d 506.) There are also some older cases involving entertainers in which similar relief was afforded. (See, e.g., Keith v. Kellermann (S.D. N.Y. 1909), 169 F. 196; McCaull v. Braham (S.D. N.Y. 1883), 16 F. 37.) Plaintiffs have not cited nor has our research uncovered a single American case in which injunctive relief was sought or granted to restrain the breach of such a negative covenant in an employment contract by an attorney.

This does not necessarily mean it would be inappropriate under any circumstances to issue such an injunctive order against an attorney, especially if the attorney possessed unique or extraordinary skills. In the case at bar, however, plaintiffs do not claim that Burnett is an exceptional attorney or that he has extraordinary skills in handling personal injury or workers’ compensation cases. Instead, plaintiffs argue that Burnett has demonstrated great ability in maintaining good relationships with union business agents and other union officials who refer clients to the firm, thereby helping the firm to maintain a steady flow of clients. According to the testimony of Waters and Kuehn, Burnett did this by remaining accessible to these union officials and through thoughtful gestures, such as stopping by the various union halls during the Christmas season with bottles of liquor. Burnett also organized and arranged for talks by attorneys from the firm to union members on various legal topics.

We do not wish to diminish the importance of the role Burnett played in helping the firm to maintain good relations with the union business agents and other sources of referral. This is not a role, however, which required unique or extraordinary skills. As we have seen, the court in Rabinovich stated in upholding the denial of injunctive relief that while defendant may have been a very good hat trimmer, this was not a unique or extraordinary skill. (Rabinovich, 120 Ill. App. at 418.) In the case at bar, Burnett displayed organizational abilities in arranging the talks by firm attorneys to union members. There is nothing extraordinary or unique about being able to organize such an activity. Burnett was also very courteous to the business agents and other personnel, remaining accessible to them and giving them small gifts during the holidays. We do not believe that courtesy should be considered a unique or extraordinary skill, especially in a profession in which courteous treatment of members of the general public should be commonplace.

The evidence also reveals that Burnett was diligent in attempting to maintain a good relationship with the union personnel. While courtesy, diligence, and organizational ability are certainly admirable traits, they are not the types of unique or exceptional skills that would justify enforcement of a negative covenant in an employment agreement by means of injunctive relief. To the extent that the injunction entered in this case was premised upon Burnett’s violation of the negative covenant in his employment agreement, it was error.

Plaintiffs contend in the alternative that the injunction could have properly been based upon the restrictive covenants in section 6.02. That provision prohibits Burnett during the duration of his employment contract and for three years thereafter from: (1) contacting any client of the firm for purposes of solicitation; (2) accepting any business from any clients of the firm; (3) communicating any information concerning firm clients to any person; and (4) having an office within 50 miles of a certain street intersection in Peoria, the courthouse in Effingham, or a certain intersection in Urbana. Since Burnett’s office is in Naperville, well over 50 miles from the above cities, the final restriction has not been breached. Plaintiffs are apparently concerned only with the first two restrictions we have mentioned, solicitation and acceptance of business from their clients.

Burnett argues that any injunction based upon the restrictive covenants in section 6.02 was improper because there was no evidence presented at the hearing that he had violated any of the covenants or intended to do so. Burnett admitted that he had placed advertisements in Champaign and Danville newspapers in an attempt to attract potential clients with workers’ compensation and personal injury cases shortly after he left SWKB & H. Burnett also testified that several SWKB & H clients called him after he opened his new office. Burnett only accepted business from one of these clients, however, and that was with the consent of the firm. He told the other callers he had agreed in his employment contract not to solicit any of the firm’s clients and advised them to contact the firm. This testimony was not contradicted by any other evidence, although Waters testified that a number of clients discharged SWKB & H shortly after Burnett left the firm.

The general advertisements placed in the newspapers by Burnett did not constitute contacting SWKB & H clients for solicitation purposes in violation of section 6.02. The term “solicit” “implies personal petition and importunity addressed to a particular individual to do some particular thing.” (Black’s Law Dictionary 1249 (5th ed. 1979).) Solicitation of legal services, as opposed to advertising, connotes a private communication directed at a person or category of persons known by an attorney to have an immediate potential need for legal services. (See Ill. Ann. Stat., ch. 110, par. 2 — 103, Committee Comments (Smith-Hurd 1983).) Thus, the general advertisements placed in the Champaign and Danville newspapers by Burnett did not constitute solicitation of SWKB & H clients in violation of the restrictive covenant.

The fact that a number of clients discharged the firm after Burnett’s departure does not constitute evidence that he violated the restrictive covenants by soliciting them or accepting business from them. Michael Waters testified that it was his impression from speaking to the former clients and to certain business agents that the dismissals resulted primarily from concern over the firm’s manpower and stability. Although this would indicate that the dismissals resulted from Burnett’s departure, it does not mean he solicited those clients. If these clients were concerned primarily with the stability and manpower at SWKB & H, as Waters testified, it is highly unlikely they would take their business to Burnett, a sole practitioner whose new office had been in business for a matter of days.

As we have seen, one of the requisites for injunctive relief is that the party seeking it is likely to suffer irreparable harm if no injunction is granted. (Smith Oil Corp. v. Viking Chemical Co. (1984), 127 Ill. App. 3d 423, 431.) Proof of a speculativé possibility of injury is not sufficient to meet this requirement. (In re Marriage of Strauss (1989), 183 Ill. App. 3d 424, 429; Smith Oil Corp., 127 Ill. App. 3d at 431.) The trial court does not have to wait until an injury actually occurs to grant an injunction. (Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 505; Armour & Co. v. United American Food Processors, Inc. (1976), 37 Ill. App. 3d 132, 137.) In Shorr Paper Products, however, there was evidence that defendant had actually solicited some of plaintiff’s customers. In Armour & Co., there was evidence that the former employees intended to solicit plaintiff’s customers. In the case at bar, there was no evidence that Burnett solicited any SWKB & H clients or intended to do so, nor was there any evidence that he accepted any business from the firm’s clients or intended to do so. In the absence of such evidence, injunctive relief premised upon the restrictive covenants was improper. It would have been sheer speculation for the trial court to have concluded plaintiffs were likely-to suffer irreparable harm from breaches of the restrictive covenants when they presented no evidence that defendant had violated the covenants or intended to do so.

Because there was no basis for injunctive relief in the case at bar, we conclude the trial court abused its discretion in granting a preliminary injunction. In light of our disposition of this matter, we need not consider the other arguments raised by Burnett. The order of the circuit court of Peoria County is reversed, and the cause is remanded.

Reversed and remanded.

UNVERZAGT, P.J., and McLAREN, J., concur.