text:
    ROBERT HADER, Plaintiff-Appellee, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant and Counterdefendant-Appellant (Terminal Railroad Association of St. Louis, Defendant and Counterplaintiff-Appellee).
    Fifth District
    No. 5—89—0793
    Opinion filed January 2, 1991.
    — Rehearing denied February 25, 1991.

      John B. Gunn and Leslie G. Offergeld, both of Walker & Williams, EC., of Belleville, for appellant.
    Richard M. Roessler and Kenneth L. Halvachs, both of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Robert Hader, filed suit against his employer, defendant, St. Louis Southwestern Railway Company (hereinafter the Cotton-belt), under the Federal Employers Liability Act (the Act) (45 U.S.C. §51 et seq. (1986)) and against codefendant, counterplaintiff, the Terminal Railroad Association of St. Louis (hereinafter the Terminal), for negligence. Plaintiff reached settlement agreements with both defendants. The Terminal filed a counterclaim against the Cottonbelt for indemnity based on a contract entered into between the parties. In this cause, the Cottonbelt appeals from an order of the circuit court of Madison County granting the Terminal’s motion for summary judgment, finding that the language of the indemnity agreement required the Cottonbelt to indemnify the Terminal and granting the Terminal’s motion to strike an affirmative defense filed by the Cottonbelt. In this cause, the Cottonbelt raises the following issues: (1) whether the trial court erred in denying the Cottonbelt’s motion for change of venue, (2) whether the injury incurred by plaintiff was within the scope of injuries for which the indemnification agreement was intended, (3) whether the language of the indemnity agreement expressed a clear and unequivocal intention to indemnify the Terminal for its own negligence, (4) whether the trial court erred in ruling that the affirmative defense of acquiescence was inapplicable, and (5) whether the Cotton-belt is entitled to further proceedings to ascertain whether the settlement between the Terminal and plaintiff included money for punitive damages. We affirm.

The facts of this case are not disputed. On November 25, 1985, plaintiff, an employee of the Cottonbelt, was working on a Cottonbelt train engaged in transfer operations which required crossing the Terminal’s main line track in St. Louis, Missouri. Prior to the Cottonbelt train being routed through the Terminal’s main line, a Terminal crew had proceeded across the same portion of track performing switching movements. At the Newspaper Dealers’ spur track, the Terminal train crew noticed that the main line switch was lined “wrong,” meaning that it led into the spur track instead of the main line. The Terminal train crew correctly aligned the switch and locked it; however, because the lock had been tampered with, the switch arm could again be forced over even with the lock in place. The Terminal crew reported the “bad lock” to its dispatcher at approximately 5:21 p.m. The dispatcher knew that a “bad lock” meant that the lock would not prevent the switch from being altered.

At approximately 6:11 p.m., the Cottonbelt train on which plaintiff was working approached the Newspaper Dealers’ switch. The Cottonbelt crew had been given clearance to proceed on this route by the Terminal’s dispatcher, but the dispatcher failed to give warning that the Newspaper Dealers’ switch had been tampered with or that there was a “bad lock” on the switch. The light at the Newspaper Dealers’ switch showed green, meaning that the main line was clear for entry. Upon coming closer to the switch, plaintiff noticed that the switch points were lined incorrectly. The Cottonbelt train was headed for the spur track instead of the main line. When plaintiff noticed this error, he yelled, “big hole,” which told the engineer to make an emergency stop. The train was unable to stop and headed onto the spur track. Plaintiff went to the side door and was intending to dismount when the train on which he was riding collided with an empty hopper car owned by Enron Chemical Company, but recently switched onto the spur track by the Terminal train crew. Plaintiff was knocked off the train car and seriously injured.

It was later determined that vandals had again thrown the switch lock and tampered with the target after the Terminal train crew had corrected the problem at 5:21 p.m. Had the Terminal dispatcher reported the potential for vandalism at the Newspaper Dealers’ switch to the Cottonbelt train crew, the Cottonbelt crew could have been on the lookout for potential problems and the accident most likely could have been avoided. There were frequent reports of vandalism in this area. The Terminal was aware of the vandalism and was aware of the technology that could have prevented the switch arm from being thrown. For a relatively inexpensive price, a “collar” could have been placed on the lock preventing vandals from tampering with the locks.

On December 27, 1985, plaintiff filed a lawsuit against the Cotton-belt under the Act and against the Terminal for negligence. The count against the Terminal was later amended, adding a count for punitive damages. The Terminal also filed a counterclaim against the Cotton-belt for indemnity. A settlement hearing was held on April 3, 1989. At that time, all parties were present through their attorneys. Settlements in the amount of $1 million between plaintiff and the Cotton-belt and $1,250,000 between plaintiff and the Terminal were ultimately concluded. The punitive damages count filed against the Terminal was dismissed. Counsel for the Cottonbelt did not object to the good-faith nature of the settlement, nor did he object to plaintiff’s counsel’s representation that no part of the $1,250,000 constituted a punitive damage award. At the conclusion of this hearing, it was determined that the only remaining issue was the Terminal’s counterclaim for indemnity.

On October 24, 1989, the trial court entered its order granting the Terminal’s motion for summary judgment and entering judgment thereon in favor of the Terminal and against the Cottonbelt in the amount of $1,250,000. In its order, the trial court ruled that the language of the indemnity agreement required the Cottonbelt to indemnify the Terminal under the undisputed facts of the case. The indemnity agreement was based upon a long-standing contract for the use of the Terminal’s track. In 1902, the Rock Island Railroad entered into a written agreement with the Terminal for the use of the Terminal’s track between Rock Island Junction and Carrie Avenue in St. Louis, Missouri. The area where the instant incident occurred is included in this stretch of track. The Cottonbelt purchased the Rock Island and became the successor in interest to Rock Island’s rights and liabilities under the 1902 agreement. On December 27, 1983, the Cottonbelt requested a change in billing procedures, a change to which the Terminal agreed, provided that certain indemnification provisions be included. The Cottonbelt agreed to these provisions, and on April 1, 1984, the provisions became part of the contract between the parties and were in effect at the time of the instant occurrence. The trial court also granted the Terminal’s motion to strike the Cottonbelt’s affirmative defense of acquiescence.

There is one additional pertinent fact. On January 23, 1989, the Cottonbelt filed a petition for change of venue alleging prejudice of the trial judge. The trial judge denied the Cottonbelt’s petition.

The first issue we are asked to address is whether the trial court erred in denying the Cottonbelt’s motion for a change of venue. The Cottonbelt asserts that the right to a change of venue due to the alleged prejudice of the trial judge is absolute, providing that the trial judge has not made a substantial ruling in the case. (In re Marriage of Birt (1987), 157 Ill. App. 3d 363, 366, 510 N.E.2d 559, 561.) The Cottonbelt then argues that in the instant case, the trial judge had not made any substantial rulings prior to its motion for change of venue so that the trial court erred in denying the Cottonbelt’s motion. The Terminal replies that the trial court did not err in denying the Cottonbelt’s motion for change of venue because the Cottonbelt ascertained the trial court’s position on substantial rulings, in particular, the Cottonbelt’s motion to continue and motion to bar two of plaintiff’s expert witnesses prior to seeking a change of venue.

Section 2 — 1001(a)(2) of the Code of Civil Procedure provides:

“(a) A change of venue in any civil action may be had in the following situations:
***
(2) Where any party or his or her attorney fears that he or she will not receive a fair trial in the court in which the action is pending, because the inhabitants of the county are or the judge is prejudiced against him or her, or his or her attorney, or the adverse party has an undue influence over the minds of the inhabitants. In any such situation the venue shall not be changed except upon application, as provided herein, or by consent of the parties.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1001(a)(2).)

The right to a change of venue is absolute where a motion alleging prejudice of the judge is filed before trial or hearing and before the judge presiding in the case has made any substantial ruling.,(Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 517 N.E.2d 5.) The reason behind such a principle is that one should not be compelled to plead his cause before a judge who is prejudiced, whether actually or only by suspicion. The corollary to this principle, however, is that a petition for change of venue must be brought at the earliest practical moment in order to prohibit a litigant from seeking a change of venue only after he has formed an opinion, based upon the court’s adverse rulings, that the judge may be unfavorably disposed toward his case. (Becker v. R.E. Cooper Corp. (1990), 193 Ill. App. 3d 459, 462, 550 N.E.2d 236, 238.) The law is clear that a party should not be allowed to “judge shop” until he or she finds a jurist who is favorably disposed to his cause of action. (Becker, 193 Ill. App. 3d at 462, 550 N.E.2d at 238; In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 637, 494 N.E.2d 541, 548; In re Marriage of Zannis (1983), 114 Ill. App. 3d 1034, 1038, 449 N.E.2d 892, 895.) It has previously been held that a petition based upon a general allegation of prejudice is untimely if brought after a hearing on the merits has started or the trial court has ruled on a substantial issue in the cause. (Heman v. Jefferson (1985), 136 Ill. App. 3d 745, 750-51, 483 N.E.2d 537, 542.) Moreover, if it is apparent that the request for a change of venue is made only to delay or avoid trial, the denial of the petition does not constitute error. (Hoffmann v. Hoffmann (1968), 40 Ill. 2d 344, 239 N.E.2d 792.) Therefore, we believe the questions are whether the Cottonbelt’s motion for a change of venue was motivated for purpose of delaying trial or whether the Cottonbelt was “judge shopping.” After reviewing the record, we conclude that the Cotton-belt’s attorney was both attempting to delay the trial and “judge shopping.”

The record shows that the case was originally filed on December 27, 1985. On January 23, 1989, a pretrial conference was held. On that date, the Cottonbelt filed three motions: (1) a motion to continue, (2) a motion to bar certain plaintiff’s expert witnesses, and (3) a petition for change of venue based upon the alleged prejudice of the trial judge. At the hearing on that date, the trial court had the attorneys identify themselves for the record. The Cottonbelt’s attorney, without prompting, then stated: “Your Honor, I think the first thing that we should take up is the motion for continuance, although we have several motions pending.” The Cottonbelt’s attorney then argued for nearly eight pages of transcript his reasons for needing a continuance, which were based in large part on his desire to take a vacation. After the Cottonbelt’s attorney’s lengthy argument, the trial court then gave the other attorneys an opportunity to address both the continuance issue and the motion to bar plaintiff’s experts. The trial court then stated: “I really haven’t heard anything yet warranting a continuance. *** I reserve my right if someone shows severe prejudice for the defendant.” After a reading of the complete transcript of the January 23, 1989, hearing, it is apparent to us that the parties would have been led to believe that the trial judge was going to deny the Cottonbelt’s motion for continuance. The transcript of the January 23, 1989, hearing lacks any discussion of the Cottonbelt’s motion for change of venue. The motions were continued, and on January 27, 1989, the parties again appeared before the trial court. The court allowed the parties to identify themselves for the record and then stated:

“THE COURT: I just noticed in the file, gentlemen, a Petition for Change of Venue was filed by one of the defendants. Perhaps the Court will proceed. I guess we’ll have to take that up I would think.”

The Cottonbelt’s attorney replied:

“MR. GUNN: Yes, sir. Well, the defendant St. Louis Southwestern Railway Company has filed a Motion to Substitute relying on the statutory provisions and that it’s our contention that the trial judge does not rule on any substantive matters as of this date and the change can be taken.”

Plaintiff’s attorney replied that he believed that the Cottonbelt had already gotten the “flavor or feeling” for the way the judge planned to rule on at least the motion to continue, so that the Cottonbelt’s motion for change of venue should be denied. The trial court agreed and denied the Cottonbelt’s motion for change of venue. The trial court then took up the pending motion for continuance and surprised both defense attorneys by granting both their motions for continuance. The case was then set for April 3,1989.

Even though the trial judge ultimately granted defendants’ motion for continuance, we believe that the Cottonbelt’s motion for change of venue was motivated by the desire to delay trial. The January 23, 1989, hearing transcript is replete with references to the Cottonbelt’s attorney’s need for a continuance. Clearly, the Cotton-belt’s attorney was manipulating the procedures of the court in order to gain a continuance. After simultaneously filing the motion for change of venue, motion to bar plaintiff’s experts, and motion for continuance, the Cottonbelt’s attorney asked the court to address his motion for continuance. Had the Cottonbelt truly believed that the trial judge was prejudiced against its cause, the Cottonbelt’s attorney would have asked the trial court to first address its motion for change of venue as the first matter before the court. We, therefore, conclude that the Cottonbelt’s motion for change of venue was motivated by the goal of delaying trial.

We also believe that the Cottonbelt further attempted to manipulate the procedural rules by extensively participating in the pretrial conference without pointing out to the trial court that a motion for change of venue had been filed. At least two of our sister courts have recognized the potential for abuse which can arise when litigants retain an absolute right to a change of venue. In Fennema v. Joyce (1972), 6 Ill. App. 3d 108, 285 N.E.2d 156, our brothers in the first district reversed the trial court’s denial of the plaintiff’s motion for a change of venue, but explained:

“We are not prepared to hold that a pre-trial conference could never render untimely a Motion for Change of Venue, for we recognize the potential for abuse in a rule which would allow litigants to test the disposition of a trial judge during pre-trial, while retaining an absolute right to a change of venue.” (6 Ill. App. 3d at 111, 285 N.E.2d at 158.)

(See also Becker v. R.E. Cooper Corp. (1990), 193 Ill. App. 3d 459, 464, 550 N.E.2d 236, 239.) Even though the trial court did not rule on the motion to continue or the motion to bar plaintiff’s experts prior to the time the motion for change of venue was considered, the Cotton-belt’s attorney was clearly testing the temperament of the trial court not only on the motion to continue, but also on the motion to bar plaintiff’s experts. Therefore, under the present facts, we find that the trial court did not err in denying the Cottonbelt’s motion for change of venue.

The next issue the Cottonbelt asks us to address is whether the injury incurred by plaintiff was within the scope of injuries intended to be covered by the indemnification agreement. The Cotton-belt initially argues that the accident involved a train of the Cotton-belt and a hopper car of the Terminal, making paragraph 9(a) of the contract inapplicable. We disagree. Paragraph 9(a) of the contract provides:

“(a) Whenever the trains, locomotives, or cars of one party hereto are involved in an accident without the trains, locomotives, or cars of the other party hereto being involved, the party whose trains, locomotives, or cars are involved shall be separately and individually liable for and shall forever indemnify and save harmless the other party hereto from all expenses and liability for loss of and damage to property of any kind (including property of either party hereto) and injury (including death) to persons regardless of the cause or causes of such accident.”

A car of the Cottonbelt was undeniably involved. The question then becomes whether a car of the Terminal was involved. While a Terminal crew had recently switched the hopper car into which the Cotton-belt's train collided, the evidence is uncontroverted that the hopper car was owned by Enron Chemical. As pointed out by both parties, it is an accepted rule of construction that words be given their usual and customary meaning. (Marshall Field & Co. v. J.B. Noelle Co. (1967), 81 Ill. App. 2d 409, 226 N.E.2d 454.) Quoting from the same dictionary, both parties give separate definitions of the word “of.” The Cottonbelt explains, “The word ‘of’ is used as a function word to indicate the place or thing from which anything comes.” (See Webster’s Third New International Dictionary 1565 (1976).) The Terminal states that “ ‘Of’ is a preposition meaning ‘belonging to.’ ” (See Webster’s Third New International Dictionary 1565 (1976).) Contracts must receive a reasonable construction, and a reasonable construction will be preferred to one which is unreasonable. (Marshall Field & Co. v. J.B. Noelle Co. (1967), 81 Ill. App. 2d 409, 226 N.E.2d 454.) In the instant case, we believe the reasonable construction of the word “of” connotes ownership. We hold that paragraph 9(a) is applicable to the instant situation and that only a train car of the Cottonbelt was involved. Even assuming, arguendo, that because the Terminal had recently switched the hopper car that act made the hopper car a car of the Terminal, the Cottonbelt would still be required to indemnify the Terminal under paragraph 9(b) of the contract, which states:

“(b) In all cases of collision between the trains, locomotives, or cars operated by one party hereto and the trains, locomotives, or cars operated by the other party, each party hereto shall assume responsibility for loss of and damage to the trains, locomotives, or cars operated by it and injury (including death) to its employees on such trains, locomotives, or cars, regardless of the cause or causes of such collision. Injury (including death) to all other persons and loss or damage to all other property (including the joint section) shall be shared equally to the parties hereto.”

Clearly, if the hopper car is considered to be a car of the Terminal by virtue of the fact that it had recently been switched by a Terminal crew, then it would have been a car “operated by” the Terminal. Paragraph 9(b) clearly states that when cars operated by both parties are involved in a collision, each party is responsible for the injuries incurred by its employees. Therefore, under both paragraphs 9(a) and 9(b), the Cottonbelt is required to indemnify the Terminal. We find that the trial court did not err in finding that under the contract the Cottonbelt was required to indemnify the Terminal.

The Cottonbelt next contends that paragraphs 9(a) and 9(b) are not broad enough to indemnify the Terminal against its own negligence. The Terminal replies that the indemnity provisions are clear and unambiguous and broad enough to indemnify it against claims arising out of its own negligence. We agree.

Contracts of indemnity are generally regarded as valid and enforceable. However, the nature of such a contract requires that the agreement be strictly construed against the indemnitee. As stated by our supreme court in Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604:

“It is quite generally held that an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language of the contract, [citations] or such intention is expressed in unequivocal terms.” (395 Ill. at 433, 70 N.E.2d at 607.)

Our supreme court has also stated that when interpreting indemnity provisions:

“[T]he contractual provisions involved are so varied that each must stand on its own language and little is to be gained by an attempt to analyze, distinguish or reconcile the decisions. The only guidance afforded is found in the accepted rule of interpretation which requires that the agreement be given a fair and reasonable interpretation based upon a consideration of all of its language and provisions.” (Tatar v. Maxon Construction Co. (1973), 54 Ill. 2d 64, 67, 294 N.E.2d 272, 273.)

Moreover, it is not necessary that specific reference to indemnification against liability arising out of the indemnitee’s negligence be provided for in the agreement. Spurr v. La Salle Construction Co. (7th Cir. 1967), 385 F.2d 322; Ahlvers v. Terminal R.R. Association (1975), 31 Ill. App. 3d 166, 171, 334 N.E.2d 329, 333.

We believe that the terminal has met the requirements which must be met for a party to exculpate itself from its own negligence. The language “regardless of the cause or causes of such accident” is broad enough to include the Terminal’s own negligence. To hold otherwise would, in effect, mandate that the word “negligence” must be specifically included in the language of the contract in order to provide indemnification for one’s own negligence. We decline to make such language mandatory and find that the general inclusive language in the instant case was sufficient.

The Cottonbelt analogizes the language found in the contract in the case of McGinn v. Northwestern Steel & Wire Co. (1978), 68 Ill. App. 3d 632, 386 N.E.2d 71, to the language in the present case. The indemnification provision in McGinn provided:

“INDEMNIFICATION — If this purchase order requires the performance of work or services on Purchaser’s [Northwestern’s] property, then Seller [M & M] shall indemnify and save harmless Purchaser of and from (a) all claims which may be made against Purchaser by reason of any injury or damage suffered or sustained by any person, firm or corporation caused by or alleged to have been caused by an act or ommission [sic], negligent or otherwise, of Seller or of Seller’s employees, workmen, servants or agents; (b) and and [sic] injury or damage to Purchaser’s property occupied or used by or in proximity to the site of the work caused by an act or omission, negligent or otherwise, of Seller or of Seller’s employees, servants or agents; and (c) all claims which may be made against Purchaser by reason of any injury or damage, however caused, which may be suffered or sustained by employees, workmen, servants or agents of Seller.” (Emphasis added.) (68 Ill. App. 3d at 635, 386 N.E.2d at 74.)

We find such language distinguishable. The contract in McGinn provided three separate levels on which liability could be based. Paragraphs (a) and (b) clearly stated that the subcontractor was only indemnifying the general contractor for the subcontractor’s own actions. Therefore, the McGinn court refused to expand clause (c), even with the language “however caused” to include indemnification for the indemnitee’s own negligence. In the instant case, there is no such distinction between paragraphs (a) and (b). Both paragraphs contain the language “regardless of the cause or causes.” Therefore, the Cottonbelt’s argument that the language “however caused” is analogous to “regardless of the cause or causes” is unconvincing. Accordingly, based solely on the sufficiency of the language, we find that the indemnity provisions in the instant case clearly and unequivocally provide that the Cottonbelt indemnify the Terminal for its own negligence.

The next issue we are asked to address is related to the indemnity agreement. We are asked to consider whether the trial court erred in ruling that the affirmative defense of acquiescence was inapplicable. The Cottonbelt contends that the defense of acquiescence can be valid even if there is an express indemnity agreement. The Terminal, on the other hand, contends that the defense of acquiescence has no application to a cause of action for contractual indemnity. We agree.

Illinois courts have not yet considered the question whether the defense of acquiescence is valid when an indemnity agreement exists between the parties. Other jurisdictions which have considered this question have found a basis for the defense of acquiescence in section 95 of the Restatement of Restitution, which provides:

“§95: Person Responsible for a Dangerous Condition.
Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.” (Restatement of Restitution §95 (1937).)

The Cottonbelt cites to the case of Pennsylvania R.R. Co. v. Erie Avenue Warehouse Co. (3d Cir. 1962), 302 F.2d 843, in support of its contention that the defense of acquiescence is valid even where there is an express indemnity agreement. However, in the Erie Avenue Warehouse Co. case, Pennsylvania law was applied. We decline to follow the Pennsylvania court. Instead, where, as in the instant case, there is a contract of indemnity, the rights of the indemnitee as against the indemnitor must be determined by the provisions of the contract. We find that when a court is firmly convinced, as we are here, that the indemnification agreement permits the indemnitee to recover for its own negligence, the defense of acquiescence is invalid. (Missouri Pacific R.R. Co. v. Arkansas Oak Flooring Co. (8th Cir. 1970), 434 F.2d 575, 579; see also Doyle v. Pacific Telephone & Telegraph Co. (1962), 202 Cal. App. 2d 708, 21 Cal. Rptr. 326.) Therefore, we find that the trial court did not err in ruling that the defense of acquiescence was inapplicable.

The final issue we are asked to address is whether the Cottonbelt is entitled to further proceedings to ascertain whether the settlement between the Terminal and plaintiff included money for punitive damages. The Cottonbelt argues that the $1,250,000 settlement between plaintiff and the Terminal, which was $250,000 more than the settlement between plaintiff and the Cottonbelt, included money for punitive damages; therefore, the Cottonbelt is not required to indemnify the Terminal for that portion of the settlement which constituted payment for punitive damages. The Cottonbelt argues that the case must be remanded for further proceedings to determine whether the settlement between the Terminal and plaintiff included any money for punitive damages. The Terminal replies that any objection the Cottonbelt may have had concerning the settlement between plaintiff and the Terminal has been waived. We agree.

On April 3, 1989, a settlement hearing was held. All parties were represented by counsel at the hearing. Counsel for the Terminal specifically stated that the $1,250,000 to be paid by the Terminal was for actual damages and that no part of that money constituted payment for punitive damages. Plaintiff’s count for punitive damages was voluntarily dismissed with prejudice. All parties were given an opportunity to object to the settlement, but no objections were made. The trial court found that the settlements were in good faith. Therefore, we find that the Cottonbelt’s contention that part of the settlement between the Terminal and plaintiff constituted payment for punitive damages has been waived. See Barreto v. City of Waukegan (1985), 133 Ill. App. 3d 119, 478 N.E.2d 581 (where it was found that the trial court did not abuse its discretion by refusing to conduct an evidentiary hearing on whether settlement between the plaintiff and one of the defendants was made in good faith, given the fact that the second defendant was aware of the settlement conferences prior to trial and was also given an opportunity to settle but chose not to, and did not allege bad faith either at the settlement hearing or by filing written objections).

In reply to the waiver issue, the Cottonbelt contends that requiring it to object at the settlement conference would be engrafting a restriction on the favored right to settle directly with a plaintiff. However, we find that not to require the Cottonbelt to object would be even more contradictory to the policy in Illinois that encourages voluntary and peaceful resolution of disputes through settlement. McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157.

A settlement is not considered made in bad faith simply because its purpose is to eliminate third-party liability. (Dixon v. Northwestern Publishing Co. (1988), 166 Ill. App. 3d 745, 752, 520 N.E.2d 932, 937.) By not requiring the Cottonbelt to object to the good-faith nature of the settlement, we believe we would be discouraging defendants, similar in situation to the Terminal, from settling their disputes with plaintiffs. Such defendants would settle believing that they had eliminated any third-party liability, only to find after the settlement had been accepted by the trial court and had been found to be in good faith, that they may be further liable to another defendant. Such a possibility would greatly discourage settlement. Therefore, we find that the Cottonbelt has waived any objection it may have had concerning whether any of the $1,250,000 settlement between plaintiff and the Terminal constituted punitive damages.

For the foregoing reasons, the order of the circuit court of Madison County is affirmed.

Affirmed.

LEWIS and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
      In re ESTATE OF PAUL HOOK, Deceased (Byron Hook, Objector-Appellant, v. Lillian Juanice Hook, Respondent-Appellee).
    Fifth District
    No. 5—90—0118
    Opinion filed January 3, 1991.

      Gregory A. Veach, of Barrett, Twomey, Morris, Broom & Hughes, of Carbondale, for appellant.
    No brief filed for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Byron Hook (hereinafter objector) appeals from the order of the circuit court of Johnson County entered January 24, 1990, denying objector’s post-trial motion, and the order entered October 13, 1989, denying objector’s petition objecting to distribution of the estate of his brother, Paul Hook (hereinafter decedent), to Lillian Juanice Hook (hereinafter respondent). We affirm.

Respondent and the decedent were married on September 28, 1984. It was the first marriage for both; respondent was aged 42 and decedent was aged 67 at the time. Respondent had been employed for several years in the coal mines in southern Illinois. After the marriage she worked for her husband in his LP gas business. Decedent operated Hook Brothers Gas Company, a partnership decedent owned with his brother, Carl Hook. Carl and his wife, Frances, who lived in Carlinville, Illinois, took care of the books for the business.

The business was located on a small farm where decedent and respondent lived on Bilou Church Road near Vienna, Illinois. The farm had been owned by decedent’s parents but title had never been transferred after the last surviving parent died in 1982 because neither of his parents’ estates was administered. Decedent, objector, Carl, Henry, and Frances Hook were heirs of the deceased parents.

Decedent was murdered on September 18, 1985. The pathologist who performed the autopsy determined that death was caused by cardiac tamponade resulting from 13 stab wounds to the chest. In addition, decedent was struck on the back of the skull, a blow, the pathologist opined, which would have rendered decedent unconscious. Death would have occurred within 15 minutes of the attack. In the pathologist’s opinion, it was medically impossible for decedent to have inflicted all of these wounds on himself. The pathologist opined that the approximate time of death was between 7 p.m. and 10 p.m. on September 18,1985.

After filing a petition for letters of administration, proof of heir-ship, oath and bond, respondent was named administratrix of decedent’s estate and declared to be decedent’s sole heir on September 30, 1985. Respondent was arrested and charged with the murder of her husband in December 1985, but was released three weeks later for lack of probable cause. Linda Boyd was a cellmate of hers during the time respondent spent in jail. At a criminal trial in 1988, a jury found respondent not guilty.

Objector filed a petition on May 16, 1986, pursuant to section 2 — 6 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. llOVa, par. 2 — 6), to vacate the order declaring heirship, to enjoin distribution, release or dissipation of decedent’s property, and to quiet title to real and personal property. This provision of the Probate Act provides in pertinent part as follows:

“Person causing death. A person who intentionally and unjustifiably causes the death of another shall not receive any property, benefit, or other interest by reason of the death, whether as heir, legatee, beneficiary, joint tenant, survivor, appointee or in any other capacity and whether the property, benefit, or other interest passes pursuant to any form of title registration, testamentary or nontestamentary instrument, intestacy, renunciation, or any other circumstance. The property, benefit, or other interest shall pass as if the person causing the death died before the decedent, provided that with respect to joint tenancy property the interest possessed prior to the death by the person causing the death shall not be diminished by the application of this Section. A determination under this Section may be made by any court of competent jurisdiction separate and apart from any criminal proceeding arising from the death, provided that no such civil proceeding shall proceed to trial nor shall the person be required to submit to discovery in such civil proceeding until such time as any criminal proceeding has been finally determined by the trial court or, in the event no criminal charge has been brought, prior to one year after the date of death. A person convicted of first degree murder or second degree murder of the decedent is conclusively presumed to have caused the death intentionally and unjustifiably for purposes of this Section.” (Ill. Rev. Stat. 1987, ch. 110^2, par. 2 — 6.)

Respondent filed a motion to strike the petition, claiming that objector was not an interested party, the motion to vacate the order claiming heirship was filed more than 30 days after its entry and no adjudication had been made that respondent caused or was responsible for decedent’s death. After oral argument and submission of authority, the court denied the motion to strike and entered an order that, until determination of objector’s petition under section 2 — 6 of the Probate Act, administratrix was enjoined from distributing or dissipating assets of the estate.

On December 12, 1986, objector filed a petition to amend the order declaring heirship and objecting to distribution of property to respondent, again based on section 2 — 6 of the Probate Act. On July 9 and 10, 1987, Judge Horman heard testimony on the petitions and admitted the evidence deposition of Dr. Miles J. Jones, the pathologist who performed the autopsy on the decedent.

At the same hearing, Frances Hook testified that she witnessed respondent’s temper toward decedent after his release from the hospital. He had been in the hospital in early 1985 after he injured his shoulder falling from a tree. She said that respondent got angry with decedent because his instructions on gas deliveries were too specific, at which time she cursed at him and slammed doors, saying she was going and she wasn't coming back. Frances admitted that when respondent returned she apologized for, in Frances’ words, “her maniacal display of temper.” She also stated that respondent was surprised to learn from her that Paul did not own all of the farm, gas company and certain other property.

Frances Hook also testified that she saw decedent two weeks before his death and that he seemed thinner and depressed and had great pain in his shoulder. Herbert Hook, decedent’s cousin, also saw decedent two weeks before his death and noticed that he was thinner and testified that decedent had commented that his wife, who weighed 220 pounds, could handle 100-pound gas tanks and was pretty wicked with a knife and the English language. He never witnessed any arguments between the two, however, and neither did Joe Hunter nor Cecil Baltzell, good friends of decedent, who both testified that the couple got along well. Baltzell testified that respondent worked hard to help her husband. Another friend, Charles Burnham, said the only disagreement he witnessed between the couple had to do with the remodeling respondent wanted to do to the house.

Respondent testified that she had known the decedent for 16 years before she married him in 1984. She testified that they had had two serious disagreements during their marriage. The first disagreement involved decedent’s insistence on going out in an ice storm to show some men how to operate a tractor, after his recent release from the hospital and while he still had a brace on his arm. The second disagreement involved decedent’s refusal to put clothes on over his long underwear when his brother and sister-in-law came over to visit. She insisted that she never threatened to divorce decedent but told him if he didn’t want her to take care of him she would leave. She admitted having a temper but denied killing her husband.

While she couldn’t think of anyone who would want to kill decedent, she stated that he had a habit of carrying around a large amount of cash in his shirt pocket. She admitted that decedent owned seven dogs which slept on the porch and that they generally barked when people or animals came on the property. She also stated that there were two security lights by the loading platform where decedent’s body was found and that the chain across the drive leading up to the platform was hooked. She admitted that she sold decedent’s firearms worth $13,000 and that she became the sole owner of a joint bank account following his death. She denied Frances Hook’s testimony that she was surprised that decedent did not own all of the farm and business and said that she had discussed this with him before they married.

Respondent testified that she had been gone most of the day on September 18, 1985, with two friends, moving some household goods from her trailer to the house. Her friend, Dianna Mummy, came over with her truck and picked up some items and, after helping Mummy unload them at Mummy’s house, respondent returned home about 7 p.m. She testified that at approximately 7:30 p.m. a vehicle drove onto the property and decedent walked outside. He turned around and came back inside, then walked back outside again. Respondent thought he had forgotten his hat. She did not go to see what type of vehicle it was or who was in the vehicle but she remembered hearing decedent’s and two other voices. She thought the vehicle sounded like a truck. She did not remember hearing the dogs bark. Approximately an hour to an hour and a half later she heard decedent talking to some people again and then the vehicle left.

Respondent was watching television in the kitchen throughout the evening. She said there was a lot of traffic on Bilou Church Road that night because it was a church night. She remembered a telephone call from decedent’s cousin, Herbert Hook, some time during the evening and told him that her husband would call him when he came back inside. Herbert testified that he called the house about 8 p.m. Respondent testified that she was on the phone with Lori Walker from 8:30 to 8:55 p.m.

After respondent finished her phone call with Walker, respondent testified that she walked outside on the porch and called for her husband but got no response. She again went outside at 10 p.m. and walked toward the loading dock. She testified that the dock was lit up and that nothing seemed disturbed. She also looked toward the barn and called for her husband but again got no response. She figured her husband had gone with the men in the vehicle to chase a bull that they had sold to a broker a few days earlier, but which had escaped when they tried to load it on the truck going to the livestock auction. She said it wasn’t unusual for decedent, who had been a single man for so many years, to leave without telling her where he was going.

Respondent testified that around 1:45 to 2 a.m. she heard some dogs barking in the field. She put her shoes on, picked up a gun and flashlight and went outside. At this time, she testified the dogs were asleep on the front porch. It was shortly thereafter that she discovered her husband covered with blood and lying by the gas tank which was located approximately 8 to 10 feet away. She did not go over to him but instead went back into the house and called for an ambulance, telling the dispatcher that her husband had fallen. She then called her friends, Lori and Lee Walker, and asked them to come over. The ambulance arrived shortly thereafter and the attendants told respondent that her husband was dead. They notified the sheriff’s and coroner’s offices. The Walkers arrived shortly thereafter and respondent called decedent’s brothers, her parents and Diane Mummy. She was interviewed by the sheriff, who asked her to look for decedent’s billfold, which was missing.

Claude Harper, one of the ambulance attendants, testified that respondent seemed disturbed after he told her that her husband was dead. He testified that he did not observe any indication of a scuffle in the area. Randy Ren, another attendant, agreed that respondent seemed upset when they first talked to her.

Sherry Kerley, the dispatcher, testified that she took respondent’s call requesting an ambulance about 2:15 a.m., and that she asked for directions and the type of injury. She stated that respondent said her husband was lying in the yard, unconscious, bleeding from the head and that he had gone out earlier to wait on a gas customer, that she had “hollered for him” but he had never come back.

Richard Sweeney, a deputy with the sheriff’s department, said that he had taken a call about 9 that evening about a bull being out. He also responded to the call from the ambulance attendants about Paul Hook’s death. He said that although there was no sign of a struggle, the hose from the LP gas tank was lying out from the tanks by Hook’s body.

Sheriff Faulkner also noted that the hose was not in its position behind the scales and that decedent’s shirt pocket was unbuttoned and empty. Decedent’s wallet was never found. Faulkner searched the house for an ice pick because the crime scene technician said the wounds appeared to have been caused by that type of weapon, but was only able to locate a rusted pick in the wall on the back porch and it was obvious that it hadn’t been used in a while. Respondent told Sheriff Faulkner there were no ice picks at the house when he spoke with her a week after the murder. Later, after respondent had moved to Tennessee, she produced two icepicks at his request. She represented to him that one of the ice picks had been located in the wall on the back porch and one had been stored in a drawer which Sheriff Faulkner had searched the morning after the murder but had not seen when he performed the search. These items were eliminated forensically as being the murder weapon. Moreover, none of the hammers located at the house were shown to have caused the wound to the back of decedent’s head.

Faulkner had served in law enforcement for 17 years but had taken part in only three homicide investigations, including Paul Hook’s homicide, during that service. Faulkner interviewed respondent on the morning of September 19, 1985, and noted that she was angry and upset. He interviewed respondent two more times in the next few days, and she never changed her story from the first time he interviewed her. No weapon was found and decedent’s hat was not located. Respondent told him that her husband always wore a hat. In Faulkner’s opinion someone who didn’t know anything about decedent’s habits placed the LP gas hose on the ground in order to make it look like decedent had been waiting on a gas customer. He admitted that this would exclude respondent, who knew from operating the business that decedent would not lay the hose there. However, Faulkner was permitted to testify, over objection, that in his opinion only one person could have been responsible for the death of Paul Hook and that was respondent.

Frances Hook testified that about a month after the murder, re- i spondent told her husband and her that she had been receiving crank phone calls accusing her of killing Paul and that respondent then played an answering machine recording wherein a woman’s voice said, “Murderer.” Frances testified that respondent was bothered by this and said, “[s]he’s right, you know, I am.” Frances reported this “admission” to Sheriff Faulkner but he testified that he did not follow up on it. Respondent testified that she did not remember saying anything to Frances and Carl Hook about this, but that she did feel guilty over her husband’s death because she sat in the house while somebody killed him. She also testified that it was Carl who put the answering machine in the house after Paul Hook died.

Greg Geittmann, a State trooper, was called in to aid in the investigation. Geittmann had been a trooper for 14 years and had served as a criminal investigator for eight years, during which time he participated in 24 homicide investigations and 400 other criminal investigations. Geittmann interviewed 30 to. 35 persons including respondent, but admitted that there were no eye witnesses to the murder. Over respondent’s objection Geittmann gave an opinion that respondent was responsible for Paul Hook’s death. He testified that he based this opinion on statements of others that discounted respondent’s story that she thought Hook was out chasing a bull that night. These witnesses told Geittmann that Hook had never before helped to capture the bull; also his age and poor health and possibility of injury made it unlikely that he would have done this. Geittmann also based his opinion on his interview of Linda Boyd, although the court sustained an objection to a recounting of her statement. Finally, because there was no one else present that evening and no sign of struggle at the scene, Geittmann opined that decedent knew his murderer.

As Sheriff Faulkner noted, respondent told Sweeney, Geittman and Faulkner approximately the same story, that Paul had gone outside to wait on a customer, that he had left about 30 minutes later, that the vehicle sounded like a truck although she could not identify who had driven up to the residence, and that she did not become alarmed when he did not return because she thought Paul had gone with some people who had been chasing a bull. Although Jerry Meyer, Louis Whiteside and Charles Cook all testified that decedent had never before helped them to catch the bull, Cook admitted that the bull was still loose the night Hook was killed. Respondent testified that when she said she thought her husband had gone with the men to help them find the bull she meant that he probably went with them to show them where the bull had been sighted the day before. White-side also testified that on the evening of September 18, 1985, he had seen a green truck backed in by the side of Hook’s garage with an LP gas tank in it.

Alice and Willie Hawkins traveled Bilou Church road that evening going to services, and Alice testified that she saw a man in the backyard that looked like Paul Hook at approximately 6:45 p.m. Neither saw any cars coming from the opposite direction when they left church about 8:45 p.m. While Alice did not see any lights in the front of the house, respondent testified that the only light she had on that night was in the kitchen, where she was watching television, and the kitchen was in the back of the house.

Denise Thornton, wife of the pastor of Bilou Church, also saw a man standing by the gas tanks at approximately 6:50 p.m., and she assumed it was Paul Hook. She asked her husband if they should stop and invite Hook to services but he said there was a motorcycle there; he had company. She testified that there was a truck on the right side of the tanks when they were on their way to church but that it had been moved to the left side of the tanks when they were on their way home. They saw no lights on in the house and they saw no one outside.

Linda Boyd was subpoenaed to testify the night before the trial began in this case. She had been arrested the previous weekend for driving under the influence. She had had two previous convictions for DUI and had spent two months in jail in 1985, during which time she was incarcerated with the respondent. She had also been convicted in 1980 for conspiracy to commit the murder of her husband and spent 2xk years in prison.

Boyd testified that shortly after respondent became her cellmate she had told her that her husband had been killed with an ice pick and hit in the head. Boyd testified that respondent changed her story a few weeks later and bragged that the ice pick would never be found; it was in a rock quarry near Vienna or in some graves. She testified over objection that respondent said that she and Dianna Mummy were lovers and that her marriage to the decedent was never consummated. Boyd stated that Julie Atwood was present during this conversation. She testified that respondent had tried to sexually assault her and that she complained to one of the jailers.

Boyd testified that respondent later told her that she was in love with her and that when this was over she and her daughter could come live with her and that she would take care of them. Boyd testified that she then asked respondent if she had killed her husband and that respondent admitted that she had. She also stated that she overheard respondent talking to herself saying, “I killed him, but they’ll never find it,” but admitted that she was not in the same cell with respondent at this time. Sheriff Faulkner testified that the first time Boyd claimed to have heard respondent confess to the murder was the night before the trial herein. He testified that he had interviewed her some six months earlier because he knew she and respondent were incarcerated together in 1985, but Boyd did not at that time tell Faulkner that respondent had confessed to her.

After her release from jail, Boyd testified that respondent called her and asked if she and her nephew Greg could come over because she wanted to talk with Boyd. Boyd gave them permission to come over. Respondent told her, Boyd testified, that they had come to move Boyd and her daughter to respondent’s home in Alamo, Tennessee, as Boyd had requested. Boyd denied that she had made such a request of respondent. Boyd told respondent, however, that she and Greg could spend the night in spite of the fact that she was so scared of respondent she didn’t sleep. Boyd testified that the next day her husband returned and respondent and Greg left.

Boyd admitted that she never told anyone about the confession when it happened before testifying in this proceeding, except for a prison matron named Marita she had seen at a horse sale after her release. The reason she hadn’t told anyone before was that she figured no one would believe her. Boyd also admitted that objector’s attorney, Gregory Veach, was her attorney in another case. However, she denied that any deals were made in exchange for her testimony in this case.

Respondent testified on her own behalf that she was incarcerated at the same time as Linda Boyd and Julie Atwood in December 1985, but vehemently denied ever telling either woman that she had killed Paul Hook. She denied ever telling them or talking out loud to the effect that “they’ll never find it,” or where the weapon might be buried. Respondent denied that Linda and Julie were afraid of her and stated that the women wrote letters to her parents for her because respondent couldn’t spell very well. She also vehemently denied ever sexually assaulting or attempting to assault either woman. The court sustained objections to questions on cross-examination of whether respondent and Dianna Mummy were lovers or whether she had ever had sexual relations with another female.

Respondent testified that Boyd called her about a year before the trial herein in Alamo, Tennessee, where she was then living and asked for help because she had left her boyfriend and had nowhere to stay except to go back to her husband’s house. Respondent and her nephew Greg went to Anna, Illinois, the next day to visit Boyd where she was- staying. Respondent, Greg, Boyd, and a friend of Boyd’s spent the night on the floor in the same room. She denied making any passes at Boyd that night. She and Greg went home the next day after Boyd’s husband came home. Respondent stated that she could not offer Boyd a place to stay because Boyd could not leave the State after her DUI conviction.

The court denied respondent’s motion to strike or dismiss the petitions at the end of objector’s case. Respondent’s only testimony was her own, although she requested a continuance in order to obtain rebuttal witnesses to the testimony of Linda Boyd. The case was continued until August 21, 1987, to allow respondent to subpoena these witnesses. On August 19, 1987, Carl Hook filed a petition to disqualify respondent as administratrix based on section 2 — 6 of the Probate Act and asked that his petition be heard and decided with objector’s petition. No testimony was taken on August 21, 1987; instead, respondent filed a motion to strike the petition filed by Carl Hook.

Judge Horman died before the close of the evidence in this matter. The case was assigned to Judge Foster, who called the matter for hearing to close the evidence on August 26, 1988. This hearing was continued at respondent’s request to December 16, 1988, and at the request of objector to May 26, 1989. At this time the parties had stipulated that the court should consider the transcripts of the hearings conducted by Judge Horman on July 9 and 10, 1987, the objector rested, and respondent asked the court to take judicial notice of the jury verdict of not guilty in respondent’s criminal trial in 1988. The court refused to take judicial notice of the verdict in the criminal proceeding because the burden of proof was higher than the burden of proof faced by objector in the instant proceeding. The parties were asked to submit written closing argument in support of their respective cases. On October 13, 1989, Judge Foster ruled that the objector did not meet their burden of proof and denied the petitions.

In the court’s post-trial order entered January 24, 1990, it gave a rationale, based on its findings of fact, for its finding on the ultimate issue of law, that objector failed to prove that respondent intentionally and unjustifiably caused the death of Paul Hook:

“Respondent is the only person the authorities were able to place at the Hook home the night Paul Hook was murdered. Respondent’s testimony as to what she did that night does leave doubt as to the truth of her statements. It seems hard to believe she would not have made more effort than she said she did between 7:30 p.m. and 2:00 a.m. to find out where Mr. Hook was, even if she did believe he was out with others looking for the bull. This obviously casts suspicion on her. It is understandable why she is the prime suspect. But it is not proof that she intentionally and unjustifiably killed Mr. Hook.
There is really no physical evidence linking respondent to the killing. In fact, Sheriff Faulkner admitted the position of the gas hose ruled her out as the perpetrator. Mrs. Thornton testified that her husband saw a motorcycle at the Hook residence and she saw a person standing in front of the gas tank at 6:50 P.M. Also, when they returned home from church the truck had been moved. There was no follow-up testimony on any of this.
The only other significant evidence the petitioners produced was the opinions of the police officers and the confessions.
The opinions of Officer Geittmann and Sheriff Faulkner are just that — opinions. They are based upon the same evidence that is in the court record. Their opinions are not proof that respondent intentionally and unjustifiably caused Mr. Hook’s death.
If I were a police officer, I would probably have the same opinion as these officers. In this case though, these opinions, even if they are considered expert opinions, are not proof. They are opinions that the respondent, the prime suspect, must have done it.
Frances Hook testified that respondent stated, T am’, (a murderer), in response to a recorded crank telephone call. Respondent’s explanation of that statement is that she did feel guilty for not checking sooner about Mr. Hook — that she might have saved him.
It seems hard to believe that if respondent did kill Mr. Hook that she would make such an incriminating statement and yet not slip up or confess at least once in all the other interviews, statements and testimony she gave. The statement she made to Frances Hook can be construed in more than one way. It was an ambiguous utterance and not sufficient to carry petitioner’s burden of proof.
Linda Boyd’s testimony has no credibility. Disregarding the fact of her conviction and sentence for conspiracy to murder her husband and the fact that she was in the Williamson County Jail for her third DUI when respondent allegedly confessed the crime to her, her credibility was destroyed by her conduct after she was released from the Williamson County Jail.
Ms. Boyd testified she was physically afraid of respondent. Yet, she allowed respondent to visit in her home and even spend the night there (although Ms. Boyd did not sleep at all).
Ms. Boyd said she told a matron named Marita about the respondent’s confessions. Apparently neither Marita nor any other law enforcement officer followed up on this. I would think that someone who works in a jail would realize the importance of this information, if it was in fact disclosed.
Ms. Boyd was interviewed by Sheriff Faulkner 6 to 8 months before the trial and did not disclose the confessions respondent had made. She did not tell the truth then.
Instead, Ms. Boyd did not tell the ‘truth’ until the night before the trial in this case. That was the same night she was arrested in Johnson County for another DUI. Had she not been arrested the night before the trial, this ‘truthful’ testimony would not have been available.
Ms. Boyd said she did not come forward because with her background no one would believe her. It is not so much her background that leads me not to believe her, but the way in which she finally decided to come forward with her information.
She would have had more credibility if she had come forward in September, 1985, when the confessions were made. Or, at least at the time she was released from the Williamson County Jail. She would have had more credibility if she had disclosed this information to Sheriff Faulkner when he interviewed her. By the time she decided to reveal the confession, the night before the trial while in custody for a DUI, any credibility she had was destroyed.
If the evidence that was presented in this case was also produced at the criminal trial, I can certainly see how the respondent was acquitted. Even under the lesser standard of proof by a preponderance of the evidence, the proof is just not sufficient.
The objections are denied.”

The first issue objector raises in this appeal regards the standard of appellate review of a judgment in a case where, as here, the trial judge who heard the testimony was not the judge who made the ultimate findings of fact and law. Generally, while a trial court’s holding is always subject to review, this court will not disturb a trial court’s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Laroia v. Reuben (1985), 137 Ill. App. 3d 942, 946, 485 N.E.2d 496, 499.) Manifest weight has been defined as that weight which is clearly evident, clear, plain and indisputable. (Laroia, 137 Ill. App. 3d at 946, 485 N.E.2d at 499.) Moreover, unless the evidence overwhelmingly supports an opposite conclusion, we may not overturn a judgment merely because we might disagree with it or might, had we been the trier of fact, have come to a different conclusion. Laroia, 137 Ill. App. 3d at 946, 485 N.E.2d at 499.

Objector urges, however, that because the manifest weight of the evidence rule is based upon reasoning that the trier of fact has the superior position to see and hear witnesses and thereby evaluate their credibility (Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624, 626), the standard of appellate review in this case requires an independent examination of the evidence and an independent decision on the facts. Objector contends that because the judge who ultimately entered judgment in this matter was not the judge who heard the evidence, independent appellate review of the trial transcript, fact-finding and evaluation of whether objector met their burden of proof in this case is warranted. We agree that if the evidence before the trial court consists of depositions, transcripts or is documentary in nature, the appellate court is not bound by the trial court’s findings and may make an independent decision on the facts. (Wolverine Insurance Co. v. Jockish (1980), 83 Ill. App. 3d 411, 413-14, 403 N.E.2d 1290, 1292.) Accordingly, we will make such an examination of the record and decision on the facts we find are proved therein.

Objector contends that an independent examination of the record by this court will show that he did sustain his burden of proving by a preponderance of the evidence that respondent intentionally and unjustifiably caused the death of decedent, as required by section 2 — 6 of the Probate Act. While criminal conduct charged in a civil proceeding need only be proved by a preponderance of the evidence rather than beyond a reasonable doubt (Sundquist v. Hardware Mutual Fire Insurance Co. (1939), 371 Ill. 360, 365, 21 N.E.2d 297, 300), the evidence of guilt must be clear and convincing. (Drezner v. Civil Service Comm’n (1947), 398 Ill. 219, 227, 75 N.E.2d 303, 309.) Moreover, while the prior probate act required conviction of the murder of another before a person could be barred from inheriting or receiving distribution from the estate of the murdered decedent (see Ill. Rev. Stat. 1973, ch. 3, par. 15a; see also In re Estate of Buehnemann (1975), 25 Ill. App. 3d 1003, 324 N.E.2d 97), conviction of first or second degree murder under the present Act is not required, but does furnish a “conclusive presumption” that the person convicted of murder “intentionally and unjustifiably” caused the death of the decedent from whose estate he seeks distribution. We also note that in life insurance cases, which were not governed by the predecessor probate act, the courts applied the common law policy that one may not profit by his intentionally committed wrongful act. (See State Farm Life Insurance Co. v. Smith (1977), 66 Ill. 2d 591, 363 N.E.2d 785.) In Smith, the supreme court held that a life insurance beneficiary who had caused her husband’s death could not recover on his policy even though there was no conviction or prosecution for murder, where the evidence supported a finding that the beneficiary was not acting in fear of death or great bodily harm when she shot her husband. Smith, 66 Ill. 2d at 605, 363 N.E.2d at 791.

If respondent had been convicted of her husband’s murder in 1988, that would have furnished a conclusive presumption that she caused his death intentionally and unjustifiably for purposes of section 2 — 6 of the Probate Act. In the instant case not only did we not have a conviction of murder but, unlike the situation in the Smith case, we also did not have any direct evidence that respondent was in any way involved in Paul Hook’s death. While the acquittal in the murder trial cannot serve as evidence that she did not cause his death, objector must still prove by a preponderance of the evidence that respondent intentionally and unjustifiably caused her husband’s death and that evidence must be clear and convincing. We have closely scrutinized the trial transcript herein and agree with the conclusion of Judge Foster that objector did not meet his burden of proof. We agree that Linda Boyd’s testimony was incredible and note that the opinion of the law enforcement witnesses that respondent killed her husband was primarily based on Boyd’s testimony that respondent confessed to her in December 1985. Moreover, Officer Geittman based his opinion, which discounted respondent’s story that she thought Hook had gone with some men to chase a bull, on statements of others indicating that he hadn’t helped to chase the bull before, as well as his age and poor physical health. Respondent adequately explained this discrepancy in her later testimony that he probably went with them to show them where the bull had been sighted before. We also agree with Judge Foster that the so-called “admission” to Frances and Carl Hook that “she was a murderer” was an ambiguous utterance, explained by respondent to be a statement reflecting her emotional guilt. We also note that although respondent was the only person Sheriff Faulkner could place on the Hook property that night, there was testimony from the church witnesses that a green truck and motorcycle were on the property and, as Judge Foster noted, there was no follow-up testimony about this. Also, decedent’s shirt pocket was unbuttoned and his wallet in which he always carried a great deal of cash was missing and never found. Finally, the testimony of decedent’s close friends indicated that respondent and her husband seemed happy after their marriage. To summarize, we do not find that respondent’s evidence of guilt was clear and convincing and find that objector did not prove by a preponderance of the evidence that respondent intentionally and unjustifiably caused the death of Paul Hook.

Finally, objector claims that the trial court abused its discretion by denying his post-trial motion to reconsider. Because we have affirmed Judge Foster’s findings of fact in its order of October 13, 1989, we necessarily find no abuse of discretion in the court’s denial of objector’s post-trial motion to reconsider on January 24, 1990. Accordingly, the judgment of the circuit court of Johnson County is affirmed.

Affirmed.

CHAPMAN and GOLDENHERSH, JJ., concur.


author: PRESIDING JUSTICE RARICK JUSTICE GOLDENHERSH,

text:
    PAUL L. ROBINSON, Plaintiff-Appellant, v. CHRISTOPHER GREATER AREA RURAL HEALTH PLANNING CORPORATION, Defendant-Appellee.
    Fifth District
    No. 5—89—0060
    Opinion filed January 7, 1991.

      GOLDENHERSH, J., dissenting.
    Douglas N. Dorris, of Harris & Lambert, of Marion, for appellant.
    Edwina Warner, of Troutt, Alexander, Popit & Warner, of Benton, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Paul L. Robinson, appeals from an order of the circuit court of Franklin County granting the motion for summary judgment of defendant, Christopher Greater Area Rural Health Planning Corporation, under section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005). We affirm.

In April of 1983, Robinson was hired by defendant, a not-for-profit health care corporation, as its vice-president for fiscal services, at a salary of $40,000 per year. Within 90 days, Robinson’s title was changed to executive vice-president. Robinson, however, did not perceive any change in his duties. Shortly after he began working for defendant, the personnel director gave Robinson a copy of the personnel handbook. Robinson’s understanding of the manual was that “it was to provide directions, procedures, and policies for employees to abide by.” At the time he was hired by defendant, Robinson believed he could remain in defendant’s employ up until the time he retired so long as his work remained satisfactory.

On April 1, 1984, Robinson’s salary was increased to $42,000 per year. Subsequently, on April 1, 1985, his salary was raised to $46,000 per year. In July 1985, defendant terminated Robinson’s employment. Initially, the executive director, Jerry Cummings, informed Robinson in person he had been terminated. A short time later, Robinson received a letter from Cummings stating that the executive vice-president position which he had held had been abolished and that his termination was not a result of poor performance. In his deposition, however, Cummings revealed that one of the reasons Robinson’s position was abolished was because Robinson had voiced a reluctance to travel to defendant’s satellite offices.

Other employees of defendant gave differing versions of why Robinson was terminated. The clinic administrator, Kim Battaglia, stated in her deposition the reason for Robinson’s termination was because a new computer system was not being integrated into the accounting system quickly enough. Battaglia also commented that the termination made no economic sense because a new fiscal officer was hired after Robinson’s termination at a salary of $40,000. This officer performed only fiscal duties while Robinson, at a salary of $46,000 per year, performed the same fiscal duties in addition to serving as assistant executive director. William Moorman, an independent public accountant working for defendant, testified there were several reasons for Robinson’s discharge. First, several members of defendant’s board of directors, including Cummings, were concerned with Robinson’s inability to get the new computer system on line and running properly. Second, they were concerned about his reluctance to travel to satellite offices. Finally, they had reservations about Robinson’s not being a “team player” and his inability to get along with Cummings.

Members of defendant’s board of directors expressed varying accounts of why Robinson was terminated. Norman Snyder stated Robinson was terminated solely at the undertaking of Cummings. According to Snyder, the board was not involved in the decision to terminate him, and Snyder himself had received no complaints about Robinson’s job performance. It was Snyder’s understanding that the position was no longer needed and, therefore, abolished. Board chairman Charles Prather testified Robinson was terminated because he was not doing his job correctly. Another board member, Thomas Vaughn, believed Robinson was fired because he was not doing the job that was expected of him. Vaughn’s understanding was that Robinson did not want to travel as extensively as the job required and that the new computer system was not being brought on line quickly enough. Vaughn further stated he knew nothing specific that Robinson had done or not done from April 1, 1985, when he received a $4,000 raise, until July, when terminated, which would have been grounds for termination.

The 1983 employee handbook, entitled “Christopher Greater Area Rural Health Planning Corporation’s Manual of Rules, Regulations, Policies, and Procedures,” comprising some 58 pages and 10 chapters, contains numerous provisions concerning employee evaluations. Those pertinent to this case include:

“Section 7.030 — Employee Evaluations
a. A written, itemized summary of an employee’s performance shall be termed an employee evaluation.
b. All employee evaluations shall be conducted by said employee’s appropriate authority.
c. All employees shall be evaluated at the end of their probationary period.
d. All employees shall be evaluated at least annually, and said evaluation shall be completed prior to the date of preparation for the annual budget.
e. All employee evaluations shall be reviewed by the President or his designee.
f. All employee evaluations shall be reviewed by the affected employee and signed by said employee.
g. All employee evaluations shall be maintained by the Personnel Manager.
h. All employees being separated from the Corporation shall be evaluated prior to the date of separation, and said evaluation shall follow the guidelines in paragraphs b, e, and f of this section.
i. When a supervisor, manager, Vice-president, or the President is being separated, said person(s) shall evaluate all employees within the scope of their authority.
j. An employee may be evaluated when, at the request of the President or his designee, said employee’s performance is of a nature either being exceptionally outstanding, or exceptionally substandard.”
“Section 7.032 — Evaluation of Vice-Presidents, Managers, and Supervisors
a. Evaluations of Vice-Presidents, Managers, and Supervisors shall be conducted by the President at least annually, and said evaluations shall be referred to the Board for approval and recommendations as to disposition, compensation, and advancement.”
“Section 7.033 — Evaluation Format
a. It shall be the responsibility of the Corporation to provide an appropriate printed format for the documentation of all evaluations.
b. Evaluation Formats shall include at least the following criteria:
1. Quality of Work
(a) Accuracy
(b) Neatness
(c) Thoroughness
(d) Economy
2. Quantity of Work
(a) Productivity
3. Dependability
(a) Follows Instructions
(b) Judgement
(c) Punctuality
(d) Attendance
4. Cooperation
(a) With Appropriate Authority
(b) With Other Employees
(c) With Clients/Patients
(d) With Public
(e) With Other Health Providers
5. Initiative
(a) Ingenuity
(b) Self Reliance
(c) Planning
6. Self Improvement
(a) Interest
(b) Observation
(c) Questions
(d) Study
7. Personality
(a) Appearance
(b) Courtesy
(c) Friendliness
8. Additional Comments by evaluator.
c. All evaluation formats shall be maintained by the Personnel Manager.”

The handbook also contains the following paragraph found in section 7.010(h), entitled “Job Descriptions:”

“h. The Corporation assumes no contractual liability to any employee via the job description or this publication. The employee shall hold the Corporation harmless from liability due to the nature, scope, or assignment outlined by any job description.”

The question we are asked to determine is whether the trial court erred by granting summary judgment for defendant. Robinson contends the record is replete with testimony supporting his position that the employment manual was a document regarded and relied upon by both employer and employees as creating standards to which both sides had to conform. Robinson asserts the manual made it mandatory for an employee to be evaluated before discharge and, therefore, the manual created an enforceable right to this evaluation prior to discharge. Defendant, on the other hand, replies its manual does not contain any provisions which would change the at-will status of its employees.

Under Illinois law, an employment relationship without a fixed duration is terminable at will for any reason or no reason at all, absent a violation of clearly mandated public policy. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353; Hogge v. Champion Laboratories, Inc. (1989), 190 Ill. App. 3d 620, 628, 546 N.E.2d 1025, 1030.) In Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314, our supreme court interpreted the general “employment-at-will rule” as a rule of construction which mandates a presumption that hiring without a fixed term is at will, a presumption which can be overcome, however, by demonstrating that the parties contracted otherwise using traditional requirements of contract formation. (115 Ill. 2d at 489, 505 N.E.2d at 318.) As stated by the Duldulao court:

“[W]e hold that an employee handbook or other policy statement creates enforceable contractual rights if the traditional requirements for contract formation are present. First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement. When these conditions are present, then the employee’s continued work constitutes consideration for the promises contained in the statement, and under traditional principles a valid contract is formed.” 115 Ill. 2d at 490, 505 N.E.2d at 318.

Robinson alleges the provisions in sections 7.030 to 7.034 of defendant’s manual constitute a clear promise for annual evaluations and, more importantly, evaluations prior to discharge which would lead a reasonable employee to conclude defendant was making an offer it would not discharge employees without an evaluation informing the employee of the alleged unsatisfactory conduct and the opportunity to correct such conduct. We need not address this contention as the manual itself contains a disclaimer negating any such possible promises made by virtue of its contents. Unlike the introduction to the handbook in Duldulao, which stated that the policies in the handbook were “designed to clarify your rights and duties as employees” (emphasis in original) (115 Ill. 2d at 491, 505 N.E.2d at 319), here we have an express statement declaring defendant “assumes no contractual liability to any employee via the job description or this publication” (emphasis added). Several courts since Duldulao have held express disclaimers in employee handbooks negate any promises made. For example, in Hogge v. Champion Laboratories, Inc. (1989), 190 Ill. App. 3d 620, 546 N.E.2d 1025, we determined that the following language found in defendant’s employee handbook constituted an express disclaimer:

“This handbook serves only to outline Champion’s major employment policies. It is not intended, and shall not be considered all inclusive or construed as an employment contract. This handbook reflects the company policy at the time of publication. The Company, of course, may improve or change these policies and reserves the right to do so at any time.” (190 Ill. App. 3d at 623, 546 N.E.2d at 1027.)

Likewise, in Moore v. Illinois Bell Telephone Co. (1987), 155 Ill. App. 3d 781, 508 N.E.2d 519, the court referred to the observation of the Duldulao court that the handbook in question contained no disclaimers to negate the promises made. The Moore court went on to con-elude that under the facts of the case before it, no employee could reasonably have believed an offer to have been made when the incentive plan in question stated: “[T]he Plan is a statement of management’s intent and is not a contract or assurance of compensation.” (155 Ill. App. 3d at 784, 508 N.E.2d at 521.) Such language clearly revealed the employer was promising nothing in the incentive plan. Yet another example is found in Bennett v. Evanston Hospital (1989), 184 Ill. App. 3d 1030, 540 N.E.2d 979, where the employee handbook contained a statement in its introduction declaring that the handbook was not intended to create a contract of employment. This too was found to be an express disclaimer. 184 Ill. App. 3d at 1031, 540 N.E.2d at 980.

Robinson argues, however, that the disclaimer here is limited to job description only. If this were true, why were the words “or this publication” added to the disclaimer? Surely defendant did not include such words solely for the limited effect Robinson suggests. Moreover, Robinson himself testified in his deposition he did not consider the manual any type of contract. If he did not so consider it, how can we declare otherwise? The record reveals the employees used the manual only as a guide, not as a set of mandatory rules and regulations. Even Robinson did not follow all of its suggestions. For instance, he too did not complete evaluations of those employees under his supervision. Under such circumstances, we find the trial court correctly granted summary judgment in favor of defendant in this instance. The question of the existence of a contract is a matter of law for determination by the court. (See, e.g., Bennett, 184 Ill. App. 3d at 1033, 540 N.E.2d at 981.) Robinson quite simply was an at-will employee who could be terminated at any time for any reason. See Hogge, 190 Ill. App. 3d at 630, 546 N.E.2d at 1032. See also Rudd v. Danville Metal Stamping Co. (1990), 193 Ill. App. 3d 1009, 1012, 550 N.E.2d 674, 676.

For the foregoing reasons, the order of the circuit court of Franklin County granting summary judgment for defendant is affirmed.

Affirmed.

CHAPMAN, J., concurs.

JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

Summary judgment shall be rendered on a party’s motion “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. (Lawrence v. Rubio (1980), 85 Ill. App. 3d 472, 476, 406 N.E.2d 946, 951.) In ruling on a summary judgment motion, the trial court must construe the pleadings, depositions, and affidavits most strictly against the moving party and most liberally in favor of the opponent. (Cimino v. Dill (1980), 92 Ill. App. 3d 345, 348, 415 N.E.2d 1272, 1274.) The right of a party to summary judgment must be clear and free from doubt. (92 Ill. App. 3d at 348, 415 N.E.2d at 1274-75.) In the instant case, defendant’s right to summary judgment is not clear and free from doubt.

I first address plaintiff’s claim that he was terminated from his employment in violation of policy statements contained in the 1983 personnel manual. There are provisions in sections 7.030 to 7.034 of the manual that require employees be evaluated periodically in writing, including a mandatory evaluation prior to separation. This final evaluation is required to be reviewed by the president and the employee and signed by the employee. Section 7.032 mandates that vice-presidents, a position held by plaintiff, be evaluated by the president annually with such evaluations being referred to the board of directors for approval and recommendation as to disposition. Essentially, plaintiff argues that these provisions constituted a clear promise for annual evaluations and, more importantly, evaluations prior to discharge which would lead a reasonable employee to conclude that defendant was making an offer that it would not discharge employees without an evaluation informing the employee of the alleged unsatisfactory conduct and the opportunity to correct such conduct. On review of the language relied on by plaintiff, I conclude that it meets Duldulao’s requirements of a clear promise.

Under the general provisions in section 1.019(a) of the manual, it is stated that “shall is mandatory and may is permissive.” Section 7.030(d) goes on to state that “[a]ll employees shall be evaluated at least annually, and said evaluation shall be completed prior to the date of preparation for the annual budget.” Section 7.030(f) states that “[a]ll employee evaluations shall be reviewed by the affected employee and signed by said employee.” Finally, section 7.030(h) states that “[a]ll employees being separated from the Corporation shall be evaluated prior to the date of separation.” I would find that this language may lead a reasonable employee to conclude that he or she would not be separated from defendant’s employment without an evaluation informing that employee of his or her unsatisfactory conduct and the opportunity to correct the deficiency. These sections were therefore sufficient to constitute a promise by defendant to its employees that certain procedural due process rights would be afforded to an employee before he or she could be terminated.

In determining that there was no genuine issue as to material fact and that defendant was entitled to judgment as a matter of law, the trial court found that the manual contained a disclaimer negating the promises made. Defendant also relies on this so-called disclaimer clause to support its position that the trial court did not err in granting summary judgment in its favor.

In contrast to the disclaimers noted by the majority, the alleged disclaimer clause in the instant case is found buried within section 7.010(h) of the manual entitled “Job Descriptions.” It states:

“The Corporation assumes no contractual liability to any employee via the job description or this publication. The employee shall hold the Corporation harmless from liability due to the nature, scope, or assignment outlined by any job description.”

In my view, the trial court erred in finding this to be a general disclaimer. The placement of the clause in the manual, as well as the wording of the clause itself, leads to the conclusion that this disclaimer is limited to job description only. This disclaimer is not strong enough to overcome a reasonable employee’s belief that an offer had been made.

The second requirement under Duldulao is that the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. In the instant case, all employees were given a copy of the manual and the manual was expected to be followed. Plaintiff was given a copy of the manual shortly after he started working for defendant. Plaintiff’s understanding of the manual was that “it was to provide directions, procedures, and policies for employees to abide by.” The trial judge placed great emphasis on deposition testimony in which plaintiff stated that he did not consider the manual to be a contract. Defendant also relies on this statement to argue that the manual did not create a binding contract. I believe this statement must be reviewed in context. During his discovery deposition, plaintiff was asked by defendant’s attorney:

“Q. Was it your understanding, at the time you were working, that this manual was any type of contract?

A. No, madam.

Q. Did you follow the manual?

A. To the best of my ability, yes.

Q. Was the manual followed generally at the clinic?

A. No, madam.

Q. Who didn’t follow it?

A. I — I can’t tell you everybody didn’t follow it. I don’t know.

Q. Well, why did you say it wasn’t followed.

A. Well, there’s things that weren’t done.

Q. Like what?

A. The evaluations.

Q. You’re speaking of the evaluations of the employees at the clinic?

A. Right.

Q. Did you evaluate the employees who were under you?

A. Yes, madam.

Q. How did you do that?

A. I evaluated personnel, you know, with employees.

Q. Did you do it in writing?

A. To the best of my knowledge I did, yes.

Q. Did you ever do it orally?

A. Yes, madam.

Q. These would be the employees in your bookkeeping department or other employees that you supervised at the clinic?

A. Right.

Q. Was it any way part of your responsibility to see that the manual was enforced or followed?

A. Yes, madam.

Q. How was that part of your responsibility, in your opinion?

A. As it was the responsibility of every person within management — within the organization.

Q. To follow the guidelines in the manual?

A. Yes, madam.”

In his order granting defendant’s motion for summary judgment, the trial court expressly held “[t]he Plaintiff stated in depositions that the manual was not followed and he did not consider it a contract.” However, in light of the strict standards which govern the granting of a motion for summary judgment, I believe the trial court erred in granting summary judgment for defendant based in large part on plaintiff’s statement that he did not consider the manual to be a contract. If the evidence is viewed in the light most favorable to plaintiff, it can be concluded that plaintiff was aware of the contents of the manual and reasonably believed the manual to contain an offer. The above-quoted language of plaintiff’s deposition shows that plaintiff followed the terms of the manual and that except for evaluations, all other provisions in the employee handbook were followed by defendant’s employees. Plaintiff’s being asked whether he considered the manual to be a contract could be objectionable at trial, as it calls for a legal conclusion. I believe that there was sufficient evidence presented by plaintiff to raise a genuine issue of material fact as to whether plaintiff reasonably believed that an offer had been made. Plaintiff’s statement is damaging, but we do not know what other evidence plaintiff might produce at trial to buttress his own position. Schuster v. East St. Louis Jockey Club, Inc. (1976), 37 Ill. App. 3d 483, 487, 345 N.E.2d 168, 170.

Finally, defendant gave the manual to plaintiff with the intent that plaintiff become familiar with it. In fact, section 5.006 specifically states:

“a. Employees shall familiarize themselves with the Manual of Rules, Regulations, Policies and Procedures.
* * *
f. An employee’s lack of knowledge in reference to any items covered in this section, shall not be considered useable in their defense of any violations of said items.”

There is no question but that plaintiff continued to work with knowledge of defendant’s manual. Thus, the requirements set forth in Duldulao were met here.

Contrary to defendant’s assertion that even if a contract is found to exist, plaintiff’s termination did not violate provisions of the manual, it is reasonable to infer from the language of the manual that the evaluations specified therein were not merely academic and meaningless exercises, but rather that they were intended to be performed in order to give an employee a chance to improve his or her performance and thereby avoid discharge. An employee reading the handbook could reasonably believe that he or she would not be terminated without such evaluation and opportunity to improve. Likewise, an employee could reasonably believe that he would not be terminated except for good reason. As pointed out earlier in this opinion, it is not clear why plaintiff was dismissed. There were several different theories given by members of the board and by plaintiff’s colleagues. Defendant rightly points out that plaintiff himself, as executive vice-president, did not consistently perform employee evaluations nor did plaintiff request any of his rights under the manual such as an employee evaluation or review of the actions taken by Jerry Cummings in dismissing him. These issues are better left for the trier of fact to determine the reasonableness of plaintiff’s position that a contract was, in fact, made. Accordingly, I conclude that there are genuine issues of material fact and that the trial court erred in finding that the personnel manual did not constitute a contract as a matter of law. Therefore, we should find that the trial court erred in granting summary judgment for defendant, but that its denial of summary judgment for plaintiff was appropriate, and remand this cause for further proceedings.