author: JUSTICE GEIGER

text:
    VICTOR J. SAWKO, Plaintiff-Appellant, v. DOMINION PLAZA ONE CONDOMINIUM ASSOCIATION No. 1-A, Defendant-Appellee.
    Second District
    Nos. 2-90-0447, 2-90-0904 cons.
    Opinion filed September 4, 1991.

      Victor J. Sawko, of Addison, appellant pro se.

    William J. Wylie, Ronald P. Lilek, and Stephen A. Rehfeldt, all of William J. Wylie & Associates, of Wheaton, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

In this consolidated appeal, the plaintiff, Victor Sawko, appeals from the court’s dismissal of count III of his complaint, the granting of summary judgment to the defendant Dominion Plaza One Condominium Association No. 1-A (the Condominium Association) on counts I and II, and the denial of his cross-motion for summary judgment on counts I and II. We reverse in part and remand.

The Condominium Association is a not-for-profit corporation organized to manage the affairs of a condominium association in which the plaintiff is a member and condominium owner. In August 1987, the plaintiff filed his two-count complaint against the Condominium Association. In count I of the complaint, the plaintiff alleged that around 1983, after he became an owner, the Condominium Association acquired additional property including a parking structure he calls the “West Garage.” The plaintiff further alleged that since May 1986 he and his family had parked one of their cars in the West Garage. According to the count I allegations, the Condominium Association board (the board) had decided in closed meetings to restrict West Garage parking, assigning some spaces in violation of the plaintiff’s and other unit owners’ right to nonexclusive parking there. The plaintiff sought an injunction against enforcement of the Condominium Association’s resolution to assign the West Garage parking spaces.

In count II, the plaintiff alleged that the board had violated the Condominium Association’s declaration of condominium (the declaration) with its purchase of a sweeper-scrubber and storage lockers. He cited the declaration provision that limited annual spending for “capital additions and improvements.” Also in count II, the plaintiff alleged that the board had acted without authority when it had paid assessments of the Dominion Country Club Homeowners Association (the Road Association) from “the maintenance fund.” The plaintiff sought judgment declaring the parties’ respective rights and liabilities and limiting the Condominium Association’s actions, and for such other relief as the court would deem fit.

In September 1989, the plaintiff amended his complaint to add count III. In count III, the plaintiff alleged that the Road Association membership comprises all unit owners in the defendant Condominium Association plus the surrounding townhouse owners. He cited Condominium Association and Road Association bylaws related to the Condominium Association’s authority to collect pro rata annual and special assessments on the Road Association’s behalf. Further, he alleged that since January 1986 the Condominium Association’s only Road Association assessments to unit owners had been a monthly amount of $9.37 plus a $75 special assessment in 1986. He also alleged that since January 1986 the Condominium Association had paid in excess of $100,000 to the Road Association or to lawyers on the Road Association’s behalf; that those payments were not collected pro rata from all unit owners; that the payments were made from “the common fund”; and that they were ultra vires. He sought to enjoin the Condominium Association’s use of its common fund to pay Road Association legal fees and expenses.

The Condominium Association first moved, under section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), to dismiss count III of the complaint. It relied on two allegations: (1) that certain paragraphs of that count were mere quotes from the Road Association bylaws, while a copy of the bylaws was not attached to the complaint; and (2) that the remainder of the count was merely conclu-sory statements that failed to state a cause of action. The court granted the motion without any explanatory comment. The plaintiff appealed.

Thereafter, the parties brought cross-motions for summary judgment on counts I and II. The court denied the plaintiff’s motion and granted the defendant’s motion. The plaintiff appealed, excepting that it did not appeal from the court’s order regarding the sweeper-scrubber. That appeal was consolidated with the appeal from the dismissal of count III.

In the consolidated appeal, we first address the court’s dismissal of count III. The plaintiff argues that, contrary to the court’s apparent conclusion, count III presented a justiciable issue. In that regard, the plaintiff cites the not-for-profit corporation act’s provision for proceedings against ultra vires corporate acts. (Ill. Rev. Stat. 1989, ch. 32, par. 103.15.) He asserts generally on that specific statutory authority that an injunction was a proper remedy to control the Condominium Association’s ultra vires acts.

Under section 2 — 615 of the Code of Civil Procedure, a motion to dismiss for insufficient pleadings must point out specifically the alleged insufficiency. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(b).) When a complaint states a cause of action, the trial court lacks discretion to grant a motion to dismiss. Preferred Risk Mutual Insurance Co. v. Hites (1970), 125 Ill. App. 2d 144, 150.

In its section 2 — 615 motion, the Condominium Association first relied upon the plaintiff’s mere citation of bylaw provisions without submission of a copy of the bylaws. We find no basis for dismissal on those grounds. We note that the plaintiff’s count III claims recited the relevant provisions in compliance with section 2 — 606 of the Code of Civil Procedure. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 606.) Furthermore, we find no basis for dismissal in the Condominium Association’s general assertion that the remainder of count III is “mere conclusory statements that failed to state any claim or cause of action.”

In count III, the plaintiff alleged, among other things, that the Condominium Association had special authority to collect pro rata Road Association assessments from unit owners and that the Condominium Association had made ultra vires payments of Road Association legal fees out of its common fund. The plaintiff also made proper allegations regarding the availability of alternate relief, the likelihood of success on the merits, and emergency to support his request for injunction. (See Oscar George Electric Co. v. Metropolitan Fair & Exposition Authority (1982), 104 Ill. App. 3d 957, 965.) Although the pleading is perhaps in-artful, we find that it is sufficiently specific to state a claim for injunction against alleged ultra vires payments by the Condominium Association.

In so finding, we are unpersuaded by the Condominium Association’s arguments on appeal that the plaintiff has waived his right to argue the cause of action under section 103.15 of the General Not For Profit Corporation Act of 1986 (Ill. Rev. Stat. 1989, ch. 32, par. 103.15) and that he thus has waived his exclusive means to enjoin ultra vires acts by the Condominium Association. We note that although the plaintiff’s pleadings failed to cite to the section 103.15 ultra vires provision of the not-for-profit corporation statute (see 134 Ill. 2d R. 133(a)), they nevertheless specifically alleged ultra vires acts by the Condominium Association.

We are fully unpersuaded by the Condominium Association’s argument that section 103.15 appears to be the exclusive means “[for the plaintiff *** to enjoin [the Condominium Association’s] alleged ultra vires acts.” When the legislature enacts a statute establishing a means to enforce existing rights, such as the common-law right of ultra vires as in this case (see Lincoln Park Traps v. Chicago Park District (1944), 323 Ill. App. 107), there is no presumption that the statutory means is intended either as an exclusive remedy or to abolish other actions at common law or equity; the legislature usually must express that intent to give such a preemptive effect. (Skilling v. Skilling (1982), 104 Ill. App. 3d 213, 221.) We find no indication of such an intent in the language of section 103.15. The absence of case law on common-law actions by members of a not-for-profit corporation not to the contrary, we find no waiver of an exclusive remedy.

Likewise, we find no basis for dismissal based upon the Condominium Association’s challenge to the plaintiff’s standing to bring the action. Although the Condominium Association correctly states that the plaintiff does not assert that he is in the group of persons who allegedly are being disproportionately assessed for the Road Association’s legal fees, count III also alleges injury to the plaintiff in the general weakening of the Condominium Association common fund; that weakening affects all unit owners, including the plaintiff.

We find that the trial court erred in dismissing count III. That count stated a justiciable cause of action. Consequently, we reverse the court’s determination on count III.

We now address the parties’ arguments regarding their cross-motions for summary judgment. Regarding the plaintiff’s parking-space issue, presented in count I, the Condominium Association relied primarily upon Article V, paragraph 7, of the condominium declaration. Under paragraph 7, the board may, at any meeting called for that purpose, when a quorum is present, adopt reasonable rules and regulations covering topics including use of the property’s parking space. The Condominium Association alleged that it had authority under paragraph 7 to make its West Garage assignments to accommodate handicapped condominium owners and remedy unsafe conditions. The Condominium Association also asserted that the plaintiff’s complaint was moot because he had been allotted two West Garage parking spaces. Furthermore, the Condominium Association suggested that because the plaintiff was using those two West Garage spaces, he lacked “clean hands” to pursue his equitable action.

In his memorandum opposing the Condominium Association’s motion for summary judgment, and supporting his cross-motion for summary judgment, the plaintiff emphasized his assertion that no notice was given unit owners that the board intended to assign West Garage parking spaces. He also asserted that no unsafe conditions created a valid reason for assigning spaces. On appeal, the plaintiff argues that the board’s parking decision was made without prior notice to unit owners and without unit owners’ approval. He asserts that it was, thus, in violation of the condominium declaration’s Article XII, paragraph 9, which sets out procedures to modify the declaration’s provisions regarding the unit owners’ ownership of the common elements.

In response, the Condominium Association first argues that the court’s summary judgment orders should be affirmed, albeit on different grounds from those expressed by the court. According to the argument, the West Garage space is not part of the condominium “common elements” and, thus, not controlled by the condominium declaration relied upon by the plaintiff. Alternatively, the Condominium Association argues that the court correctly determined that the board had authority to adopt its rule assigning parking spaces.

In its subarguments, the Condominium Association urges (1) that a rule or regulation assigning a portion of the common elements as parking space does not effectively diminish individual owners’ interest in the common elements; (2) that the board’s parking rule was reasonable under condominium declaration Article V, paragraph 7; and (8) that if the board generally had had authority to create its parking rule, the notice provided was adequate and the plaintiff has no standing to urge lack of notice. It also reiterates a variation on its earlier argument that the West Garage space property was not subject to the Condominium Property Act so that that act’s section requiring advance notice of proposed rules and regulations (HI. Rev. Stat. 1989, ch. 30, par. 318.4(h)) is of no consequence.

Summary judgment is a drastic remedy and must be granted only when the movant’s right to judgment is clear as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) It should be granted when the pleadings, depositions, admissions on file, and affidavits present no genuine issue of material fact. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1005(c).) In considering a motion for summary judgment, the trial court must draw all reasonable inferences from the record in favor of the non-moving party. (Knief v. Sotos (1989), 181 Ill. App. 3d 959, 963.) The reviewing court then must determine whether the trial court correctly concluded that there were no genuine issues of material fact and whether the judgment was correct as a matter of law. International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 571.

In reviewing the court’s order of summary judgment for the Condominium Association, we summarily dismiss the Association’s arguments based upon its assertion that the West Garage property neither was covered as part of the “common elements” under the condominium declaration nor was subject to the Condominium Property Act. In paragraph 10 of count I, the plaintiff alleged that the property at issue here, including the West Garage, “became part of commonly owned property maintained by Defendant through the maintenance fund.” The Condominium Association’s answer to paragraph 10 was as follows: “Defendant admits the allegations contained in Paragraph 10 of Count I of the Complaint and therefore neither admits nor denies same, but demands strict proof thereof.” Construing the record strictly most favorably to the plaintiff, as we must, we find that in its answer, the Condominium Association admitted the inclusion of the subject property in the common elements. Accordingly, its current arguments to the contrary must fail.

We next consider whether the record supports summary judgment for the Condominium Association because the Association’s adoption of the parking rule did not diminish the plaintiff’s interest in the common elements. On this issue the Condominium Association challenges the plaintiff’s reliance on two cases: Stuewe v. Lauletta (1981), 93 Ill. App. 3d 1029, and Schaumburg State Bank v. Bank of Wheaton (1990), 197 Ill. App. 3d 713. Those cases touch the issue of diminution of common elements.

The Stuewe court reversed dismissal of a complaint challenging a condominium developer’s “lease/easement” of a portion of the condominium common elements. By that lease/easement, the defendant was to acquire parking space. The court observed that the common elements had been diminished as to other tenants by that redesignation. Stuewe, 93 Ill. App. 3d at 1031.

Among other things, the Schaumburg court considered whether the purported easement there, one for pedestrian and vehicle traffic over a “common elements” area serving as a driveway, constituted a change in the percentage of each condominium unit’s common ownership. The court noted that the grant of the easement did not diminish the individual owner’s percentage of undivided interest in the condominium common elements: each plaintiff unit owner owned a one-eighth undivided interest in the condominium common elements both before and after the easement. (Schaumburg, 197 Ill. App. 3d at 721.) Further, the court found that the plaintiffs’ interest in the common elements had not been diluted because of any diminishment in the common elements parcel itself. (197 Ill. App. 3d at 721.) The court found that the individual owner’s individual interest was not diminished by the grant to a third party of a nonexclusive use or easement over the common elements; the court concluded that that interest would have been diminished only if the use or easement was exclusive and precluded an owner from using a portion of the common elements to which he previously had had access. 197 Ill. App. 3d at 721; see also Parrillo v. 1300 Lake Shore Drive Condominium (1981), 103 Ill. App. 3d 810.

Considering the authority of Stuewe and Schaumburg, we disagree with the Condominium Association’s argument that it has not granted any exclusive rights in its designation of reserved West Garage parking. We do not challenge the Condominium Association’s assertion that it has granted no easement and that the owners to whom West Garage parking has been designated have no right to transfer their West Garage parking rights. Neither do we challenge the Condominium Association’s point that it is at the condominium board’s pleasure that owners occupy designated West Garage space. Nevertheless, the parking allowances made in this case are not of the nonexclusive Schaumburg nature.

Although the parking grants here gave a smaller property right than that of the easement in Stuewe, they certainly are grants of exclusive use, albeit for an undetermined time period. In Schaumburg, where the court found a nonexclusive grant, unit owners could continue after the grant to drive upon the challenged area, with little change from before the grant. The grants here, to the contrary, fully preclude the plaintiff and other unit owners from use of common elements’ parking to which they previously had access.

In conclusion, we find that the West Garage parking space allocation diminished the plaintiff’s interest in the common elements associated with his condominium ownership. Further, we note that the Condominium Association acknowledges on appeal that no rule or regulation that diminishes the plaintiff’s interest in the common elements may be adopted without the unanimous consent of all Condominium Association members. Additionally, the plaintiff included in his affidavit that the Condominium Association’s parking rule was adopted following an executive session of the board and without prior notice to owners that the issue would be presented at the meeting. Thus, considering the Condominium Association’s concession that a rule diminishing the plaintiff’s “common elements” interest may not be adopted without unanimous membership consent, we proceed to the plaintiff’s further argument on appeal.

The plaintiff’s further argument is that the court should have granted his cross-motion for summary judgment. Insofar as that cross-motion addressed the parking issue, it was limited to what the plaintiff characterized as “[t]he only legal issue in Count I:” whether the board had authority to make its exclusive parking assignment. We find that the plaintiff’s cross-motion on count I is, in effect, a motion for partial summary judgment on the question of the board’s authority for its parking rule. See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(d).

In addressing the court’s denial of the plaintiff’s cross-motion, we do not construe the Condominium Association’s answer to paragraph 10 of the plaintiff’s complaint as an admission that the subject property was included in the common elements. Thus, we address the Condominium Association’s arguments that the property is not subject to the condominium declaration’s provisions covering the common elements.

We find that the Condominium Association’s argument that the property is not included in the condominium’s common elements misplaces reliance on Stuart Town Homes Corp. v. Rosewell (1988), 176 Ill. App. 3d 59. The Stuart case merely focused upon whether the tax status of the plaintiff townhouse corporation there should have been analyzed under the principles of condominium corporation law. In that case, unlike here, no property of the corporation had been submitted to the provisions of the Condominium Act.

We are aware of no authority that directly answers the question of what role the articles of condominium properly play regarding the garage property here. The Condominium Association correctly observes that it is empowered to acquire and hold title to real estate in its own name. (Ill. Rev. Stat. 1989, ch. 32, par. 103.10(d).) It also correctly observes that in Illinois, corporation members or shareholders generally hold no legal or equitable title in the corporation’s property. Winakor v. Annunzio (1951), 409 Ill. 236, 250-51.

Nevertheless, here, according to the well-alleged and uncontradicted facts in the plaintiffs affidavit, the Condominium Association purchased the garage property on behalf of the unit owners, with funds individual owners had contributed to the Association’s common fund. The Condominium Association does not offer any counterevidentiary affidavits in that regard. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587.) Further, as the plaintiff points out, the Condominium Association apparently intended, at least for tax purposes, for the property here to be included in the common elements. The record shows that the Association did not budget funds to pay real estate taxes on the property; apparently it intended the individual unit owners to pay the taxes as they would on common condominium property under the Act. Ill. Rev. Stat. 1989, ch. 30, pars. 309(c), 310(a).

We note again that according to the plaintiff’s uncontradicted affidavit, the garage property was acquired with common funds and was acquired in the interest of the condominium owners, and we find that the property was intimately connected with the property covered under the condominium declaration and that it was available for use and control by the individual owners. (See Cambridge-on-the-Lake Homeowners Association v. Hynes (1983), 116 Ill. App. 3d 63, 65.) Here, where it was the unit owners’ common funds which financed the garage purchase, that finding is consistent with a resulting-trust-like analysis whereby when two persons together advance the price of property and title is taken in only one of their names, a trust results in favor of the other, in proportion to his contribution to the purchase. (Caudill v. Beil (1984), 127 Ill. App. 3d 847, 852.) Considering those factors, the fact that we find no remaining questions of material fact, and the analysis preceding our determination that the Condominium Association was improperly granted summary judgment on this issue, we conclude that the Association’s actions towards the garage property should be regulated by the condominium declaration’s provisions covering common elements and that the plaintiff was entitled to summary judgment in that regard. We find no barrier to that judgment in the fact that the plaintiff has been assigned and is using two spaces in the West Garage, pending the nonexclusive use that he seeks.

Additionally, we address the plaintiff’s complaint for declaratory judgment regarding the Condominium Association’s payments to the Road Association. According to the complaint, the Condominium Association had lacked authority and had exceeded its authority by paying Road Association assessments out of the “maintenance fund.”

Under the Condominium Association’s declaration of condominium, each unit owner shall pay a share of the expenses of administration, maintenance and repair of the common elements; except as otherwise provided, each owner’s share of such expenses shall be related to his percentage of ownership in the common elements. (Article VI, paragraph 1.) Among other provisions, the declaration provides that members of the Condominium Association are subject to assessment by the separate entity of the Road Association; those assessments, pursuant to Article IV, paragraph 4.05, in the Road Association’s declaration, “shall be fixed and levied equally among all Dwelling Units, share and share alike.”

The Condominium Association maintains it has the right to make assessments using either the percentage-of-ownership method or the equal-contribution method. We find no support for that position. Under the two respective declarations, the funds supporting the separate associations are to be assessed under different formulae. There is no provision giving the board discretion to use funds collected for one association to benefit the other. Construing the record to favor the Condominium Association, we find that the plaintiff successfully has demonstrated his entitlement to declaratory judgment that the Condominium Association’s use of the proportionately assessed “common fund” for Road Association assessments is improper. Accordingly, we reverse the trial court’s grant of summary judgment to the Condominium Association in this regard and direct the trial court to enter summary judgment in favor of the plaintiff.

Based on the foregoing, we reverse the judgment of the circuit court of Du Page County, except as it covered the Condominium Association’s purchase of a sweeper-scrubber unit from which the plaintiff brought no appeal. We remand the cause with instructions for the court to enter summary judgment in favor of the plaintiff on counts I and II, except as to the sweeper-scrubber, and to reinstate the plaintiff’s count III, consistent with our decision.

Reversed and remanded with directions.

BOWMAN and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
      In re MARRIAGE OF JOSEPH F. FREDERICK, JR., Petitioner-Appellee, and JOANNE A. FREDERICK, Respondent-Appellant.
    Second District
    No. 2-90-0659
    Opinion filed September 4, 1991.

      Lawrence S. Starkopf and William H. Hrabak, both of Feiwell, Galper & Lasky, Ltd., and Murphy & Boyle, Chartered, both of Chicago (George S. Feiwell, of counsel), for appellant.
    Amy L. Gertler, of Grund, Marcus, McNish, Knabe & Nadler, of Chicago (David I. Grund, of counsel), for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Following a hearing in the circuit court of Lake County, a judgment for dissolution of marriage was entered on October 2, 1989, whereby the marriage between petitioner, Joseph F. Frederick, and respondent, Joanne A. Frederick, was dissolved. Pursuant to respondent’s motion to reconsider, the judgment was subsequently amended. Petitioner was awarded custody of the parties’ minor son. The marital home with net equity of $219,000, initially awarded to petitioner, was to be sold upon the son’s graduation from high school, and the net proceeds divided equally between the parties. The marital portion of petitioner’s pension plan valued at $372,000 was divided equally; 5,716 shares of Hilton stock valued at $600,180 was divided 60% to respondent, 40% to petitioner. By stipulation petitioner was awarded a $17,000 thrift savings plan, and respondent received a 1988 Toyota Célica. The trial court retained jurisdiction to allocate the profits realized from the exercise at petitioner’s discretion of 6,772 vested Hilton stock options and 11,000 nonvested stock options to be divided equally between the parties. Petitioner was to pay the college expenses of the parties’ daughter and to pay respondent $2,500 per month in maintenance. Each party was to retain the personal property in his or her possession with the exception of certain personal property awarded to respondent. Respondent had sought to set aside a certain trust called the “Maine Trust” (Maine Trust) based upon fraud, duress or coercion and have the trust res, a house and 82 acres in Maine valued at $160,000, apportioned as marital property. The court refused to strike down the trust. Respondent raises four issues on appeal.

Petitioner, presently 56 years old, and respondent, presently 55 years old, were married in 1955. Their daughter, Joelle, was bom in 1968, and their son, Joseph III, was bom in 1972. Petitioner was a senior vice-president for the Hilton Hotels in the Midwest region and had worked for the Hilton Hotels Corporation for 33 years. For nearly 17 years of the parties’ marriage, the family lived in the Hilton hotels at which petitioner was assigned to work as general manager. They had available to them maid service, housekeeping, restaurants, health clubs and other hotel amenities afforded to them by Hilton. Respondent worked at part-time jobs at various times during the marriage.

In August 1987, petitioner executed certain trusts, none of which are in dispute on appeal. The property in Maine was placed in a revocable trust with petitioner as settlor and trastee on October 30, 1987. Respondent signed a letter on October 30, 1987, whereby she acknowledged that the Maine property was being conveyed to a revocable trust for the primary benefit of their two children. The letter stated that the trust would provide that upon the sale of the property during respondent’s lifetime she would receive 25% of the net proceeds. Respondent further acknowledged that she had an opportunity to review the Maine Trust before signing the letter and that she acknowledged and agreed that the Maine property would not be treated as marital property under the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.).

In the first issue, respondent contends that the manifest weight of the evidence proved that the waiver of her marital rights in the Maine property was the result of fraud, duress and coercion. She argues that the confidential relationship between a husband and wife required that the trial court strictly scrutinize the transaction, which it did not do. Respondent further claims that the Maine Trust was a fraud on her marital rights. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205.) We find that the manifest weight of the evidence proved that the Maine Trust was a fraud on respondent’s marital rights. The facts pertinent to our decision are set forth therein.

In Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, the supreme court stated that the owner of property had an absolute right to dispose of the property during the owner’s lifetime in any manner and may do so even if the transfer was for the precise purpose of minimizing or defeating marital interests of the surviving spouse in the property. The transfer was not vulnerable to attack by the surviving spouse unless it was a sham and was “colorable” or “illusory” and tantamount to a fraud. The court noted that a fraud on the marital rights of the surviving spouse was not fraud in the traditional sense. “Intent to defraud” must be construed in connection with the words “illusory” and “colora-ble.”

The Johnson court examined the trust created and found that, while the settlor retained a significant degree of control over the trust assets as trustee of a revocable trust, the form of control which the donor retained did not make the trust invalid. (Johnson, 73 Ill. 2d at 363.) The trust was not inoperable because the settlor had the power to revoke and retained a life interest in the trust property. However, Johnson went on to provide that the facts of a particular case may show the trust in question, while ostensibly valid, is in actuality a sham transaction. Johnson, 73 Ill. 2d at 364.

Relying on Johnson and other cases, the supreme court found that fraud against marital property was not to be condoned even though it occurred before dissolution. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205; In re Marriage of Glessner (1983), 119 Ill. App. 3d 306.) When the characterization of a transfer of marital assets is questioned by a spouse, fraud is properly assessed by referring to the donative intent of the settlor. (In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256.) An illusory transfer is one which takes back all that it gives, and a colorable transfer is one which appears absolute on its face, but due to some secret or tacit understanding between the transferee and the transferor, it is not a transfer because the parties intended ownership be retained by the transferor. (Glessner, 119 Ill. App. 3d at 315.) Whether the conveyance at issue was fraudulent depends upon all the circumstances surrounding the transfer. (In re Marriage of Shehade (1985), 137 Ill. App. 3d 692.) A fraud must be proven by clear and convincing evidence. (Hofmann, 94 Ill. 2d at 222.) A trial court’s determination in this regard will be set aside only if it is against the manifest weight of the evidence. Shehade, 137 Ill. App. 3d at 701.

Respondent relies upon the fact that petitioner had the power to revoke, terminate, amend or modify the trust at anytime and had use of the property as long as he wanted to show the illusory nature of the transfer. However, under Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, these features do not necessarily render the trust inoperative. The facts surrounding the transfer show that the trust, while ostensibly valid, is in actuality a sham transaction to defraud respondent’s marital rights. See Hofmann, 94 Ill. 2d 205; Johnson, 73 Ill. 2d 342.

Petitioner testified that he and respondent discussed their estate planning and the Maine property from early in 1987. Respondent denied this fact. The trial court as the trier of fact is in the superior position to determine the credibility of the witnesses, to weigh the evidence and to determine the preponderance thereof especially where the testimony is contradictory. (In re Marriage of Dwan (1982), 108 Ill. App. 3d 808.) However, other evidence also showed that only petitioner went to see John Buttita, of the law firm Altheimer and Gray, who drafted the various trust documents. Petitioner made all the arrangements for the distribution of the parties’ assets, insurance, etc., and respondent had no direct input into the arrangements.

Under the initial trusts and petitioner’s will executed on August 27, 1987, the Maine property, as an asset of petitioner’s estate, would have poured into trusts set up for respondent and the children. Respondent would have had an interest in the Maine property. The Maine Trust set up in October 1987 removed that property from the will so that respondent would no longer have received any part of it. Petitioner testified that he changed the manner in which the Maine property was handled because he wanted to be certain his children would receive it. He was concerned about his children’s interest in this regard because of conduct by respondent toward the children in the early-to-mid 1980s and her alcohol abuse. The evidence indicated, however, that petitioner was aware of these facts in August 1987, when he first provided for the Maine property.

Buttita testified that there were other ways to provide the children with the Maine property upon petitioner’s death without respondent losing her marital rights in the property. He said that he did not recall discussing these with petitioner, although he also stated that he and petitioner did discuss the best way to handle the Maine property when petitioner contacted him regarding a change in the prior estate plans executed in August 1987.

The evidence showed that after petitioner executed the will and trusts on August 27, 1987, he saw an attorney on August 28, 1987, who later represented him in the dissolution proceeding. Petitioner testified that he was not contemplating divorce at that time, but wanted to have information on what would happen in the event of divorce. He stated that the Maine Trust was only done for estate planning purposes. Within a few weeks of this meeting, petitioner contacted Buttita regarding the Maine Trust. Buttita testified that he suspected problems between petitioner and respondent and spoke with a divorce attorney in his firm because of his concern with respondent’s marital rights. He stated that he prepared the October 30, 1987, letter for respondent to sign because divorce was an anticipated contingency for many of his clients. Buttita claimed that petitioner never told him that petitioner was contemplating a divorce, and Buttita did not know if there were going to be divorce proceedings. However, his October 29, 1987, letter to petitioner in which was enclosed the October 30, 1987, letter for respondent to sign, referred to the Maine property being excluded from marital property “at the divorce.” (Emphasis added.) The letter also stated that “if the divorce proceedings become acrimonious,” respondent could attempt to set aside the agreement. (Emphasis added.) This language indicates more than mere suspicion of a possible divorce.

Respondent was given the Maine Trust document to read, and she said that petitioner explained it to her. She was aware that she would receive 25% of the proceeds if the property was sold. Although she said she was not aware that a lawyer was advising petitioner and had drafted the letter, common sense would have told her that petitioner probably did not draft the trust document. (See generally State Bank v. Sorenson (1988), 167 Ill. App. 3d 674, 681.) On the other hand, petitioner testified that he did not tell respondent he had seen a divorce attorney in August 1987 because he was not contemplating divorce at that time. In addition to the visit to the divorce lawyer, the change in the trusts, and Buttita’s letter, petitioner filed for dissolution in January 1988. We find that under these circumstances petitioner was being more than merely curious about the ramifications of dissolution and should have advised respondent of his consultation with a divorce attorney when he gave her the letter to sign.

Petitioner testified that when he gave respondent the October 30, 1987, letter to sign, she told him that she had a lawyer. Respondent did not have an attorney, however. Petitioner said he had previously told respondent that his lawyer and he were concerned about the Maine Trust being upset. He told respondent that if there was ever a problem with the marriage, i.e., divorce, “one or the other” could challenge the trust and “somebody” could take back what they had already given. Petitioner wanted to be sure this did not occur because it was their mutual intent that the children have the property. He told respondent that by signing the letter the trust would be protected.

It is clear from petitioner’s testimony that he misrepresented the true nature of the letter. Based upon Buttita’s letter to petitioner, the October 30, 1987, letter to be signed by respondent was designed to protect the Maine Trust from any claim by respondent during a divorce. Petitioner would have no need to challenge the Maine Trust in a divorce. Yet, petitioner misrepresented to respondent that either one of them could challenge the trust and that the letter would protect the trust from that occurring. He indicated by his explanation that the trust would have to be protected from him as well as her in the event of divorce. Regardless of any letter signed by respondent, petitioner had the power to revoke the trust.

Respondent had the letter about two weeks before she signed it and did not consult an attorney although she could have. Those cases in which coercion was found usually involved hastily contrived agreements occurring only hours before a hearing. (In re Marriage of Riedy (1985), 130 Ill. App. 3d 311, 314.) However, respondent was laboring all that time under petitioner’s misrepresentations regarding the purpose of the letter, and she was unaware of his visit with a divorce lawyer. She finally signed the letter after petitioner again told her that this was her opportunity to do something for the children, to which they both agreed.

The facts of this case show an intent to defraud respondent. The circumstances surrounding the trust and the trust provisions when viewed together show that the transfer was illusory and created to defeat respondent’s marital rights to the property in a dissolution proceeding. Although she signed the agreement after it had been in her possession awhile, there was no consideration for the agreement. Petitioner misrepresented the nature of the letter. Respondent was unaware of petitioner’s consultation with a divorce attorney. She had no attorney. The Maine Trust is set aside, and the matter is remanded in order that the Maine property be apportioned between the parties as the trial court deems proper in its discretion.

In the second issue, respondent asserts that the trial court erred in giving sole discretion to exercise the Hilton stock options to petitioner. She argues that petitioner may not act in her best interest or he may fail to exercise the options, thus leaving respondent with nothing. She asks that the trial court retain jurisdiction over the matter so that she may petition the trial court to compel petitioner to exercise her share of an option at her expense. Although petitioner points out that the stock options can only be exercised by him, respondent is not asking for the right to exercise the options directly or to have them transferred to her.

We initially note that, with the exception of two cases which are not on point with respect to the issue presented, respondent has provided no citation of authority to support her argument. (Petitioner has also failed to do so.) Bare contentions without citation of authority do not merit consideration on appeal. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605.) We have determined to address the issue on the merits despite this fact.

Petitioner was the recipient of certain stock options by virtue of his employment with the Hilton Hotels Corporation. He had vested unexer-cised options for 6,772 shares of Hilton stock and nonvested unexercised options for another 11,000 shares. Under the stock option plan, petitioner’s right to exercise an option was limited to a specific percentage of shares each year until the option fully vested. The options could not be transferred except by will or laws of descent and distribution, and only petitioner could exercise the options. The options expired at a certain time. If petitioner’s employment terminated, the options expired within three months. The trial court retained jurisdiction to allocate 50% of any profit realized from the exercise of the vested options to each party and 50% of the marital fraction of any profit from the exercise of nonvested options to each party. Exercise of the options was in petitioner’s discretion.

We are aware that the treatment of future benefits varies from jurisdiction to jurisdiction. (In re Marriage of Evans (1981), 85 Ill. 2d 523, 528-29.) The manners of distribution of stock options in dissolution cases are numerous. (Annot., 46 A.L.R.4th 640, 645 (1986).) For example, in Callahan v. Callahan (1976), 142 N.J. Super. 325, 361 A.2d 561, the court upheld a constructive trust on the husband in favor of the wife’s 25% interest in options. The wife could direct him to exercise her share at her expense. The Missouri Court of Appeals upheld a distribution of one-half of certain stock options to each party with the husband retaining the right to decide to exercise the options. The wife was to be given 30 days’ notice and had to pay for her portion. (Smith v. Smith (Mo. App. 1984), 682 S.W.2d 834.) In Green v. Green (1985), 64 Md. App. 122, 494 A.2d 721, the court found that the husband could not be compelled to exercise his stock options. However, the trial court could determine a percentage to each spouse by which the profits would be divided, if, as and when the options were exercised.

The method of distribution employed by the trial court herein is supported by In re Marriage of Moody (1983), 119 Ill. App. 3d 1043. In that case the husband was awarded his entire interest in certain stock options as part of an apportionment of marital property. The court had determined the value of the options as of the date of the hearing by taking judicial notice of the market value and calculating the profit. The husband argued that the options had no value until they were exercised, and the Appellate Court for the First District agreed. Moody, 119 Ill. App. 3d at 1047-48.

Relying on its interpretation of In re Marriage of Evans (1981), 85 Ill. 2d 523, the Moody court noted that an award of an interest in future benefits derived from one’s employment was inappropriate under section 503 of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 503), where the evidence presented did not establish the present value of the benefits. The appellate court found it was improper for the trial court to take judicial notice of the market value of the stock, and there was insufficient evidence to support the valuation amount. Moody, 119 Ill. App. 3d at 1048.

The court went farther, however, and found that it was impossible to value the options until they were exercised. The court examined the fact that the options were nontransferable and must be exercised to realize any profit. They had no value if they were never exercised. The husband had only 1,600 shares exercisable and not 3,000 under terms of the option plan. There was evidence that the husband’s health and financial situation made it impossible for him to exercise the options without a loan and expenditure of a certain amount of money from his own sources. These factors established that the options may never be exercised before they expired. Thus, the options did not constitute property under section 503 until they were exercised. The trial court erred in apportioning the options to the husband. The husband was to retain his interests in the options as his separate property. The trial court was directed to retain jurisdiction until the options were exercised or expired. If they were exercised, the trial court, in its discretion, could allocate an appropriate share of any profit to each spouse. Moody, 119 Ill. App. 3d at 1047-48.

In the instant case, there was no evidence of the present value of the stock options to petitioner, and appropriately, the trial court did not attempt to value them. We also note many of the same features of the Moody stock options are present herein which show that the options have no value until and if they are exercised. While there was no evidence that petitioner may not be able to exercise the options due to poor health or financial reasons as there was in Moody, we do not find that the lack of these factors alone affects the fact that the value of the options cannot be properly valued until they are exercised.

The fact that the options could not be valued until such time as they were exercised indicates that, under Evans (85 Ill. 2d 523) and Moody (119 Ill. App. 3d 1043), the options did not constitute property under section 503 of the Act until they were exercised. (Ill. Rev. Stat. 1989, ch. 40, par. 503.) Thus, petitioner should retain his interest in the options as his separate property until such time as they are exercised. This fact was accomplished by the trial court’s determination that petitioner have the sole discretion to exercise the options. The trial court also properly retained jurisdiction to allocate the profits realized from the exercise of the options. (Moody, 119 Ill. App. 3d at 1048.) While Moody provided that the trial court should allocate an appropriate share to each spouse at its discretion if and when the options were exercised, we find no abuse of discretion with the trial court’s determination now that such allocation will be 50% of any profit from the exercise of vested options and 50% of the marital fraction of any profit from the exercise of nonvested options to each party. Unlike Moody, neither spouse is being awarded an entire or majority interest in the options as a specific apportionment of marital property. Each spouse will share equally in any profit realized from the exercise of the options. There is no indication in the record or the judgment that the apportionment of marital property was affected in any manner by the determination to allocate the profits equally between the parties. We find no error in the trial court’s treatment of the stock options, and petitioner properly retained the sole discretion to exercise them.

Next, respondent contends the trial court abused its discretion in the amount of maintenance it awarded. She claims that her monthly expenses totalled $4,710 and that income taxes on this amount of maintenance at 35.5% raised her monthly expenses to $6,382.05. Respondent argues that the award of $2,500 failed to take into consideration tax consequences, insurance obligations, debts, school expenses, and the lifestyle respondent enjoyed during her lengthy marriage.

The trial court is allowed to award maintenance in an amount it deems just after considering relevant factors such as: financial resources of the party seeking maintenance including marital property the party was apportioned; standard of living established during the marriage; duration of the marriage; age, physical and emotional condition of both parties; ability of other spouse to pay maintenance while meeting his needs; and the tax consequences of the property division. (Ill. Rev. Stat. 1989, ch. 40, par. 504(b); In re Marriage of Swigers (1988), 176 Ill. App. 3d 795, 802.) The trial court should also consider the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment. (In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 633.) An award of maintenance is within the discretion of the trial court, and it will not be disturbed on review unless there is an abuse of discretion or the determination is against the manifest weight of the evidence. In re Marriage of Wolf (1989), 180 Ill. App. 3d 998, 1007-08.

Petitioner and respondent submitted affidavits of their expenses and income before the trial court, and neither party challenges these amounts. Although respondent states that she worked two part-time jobs, her affidavit fails to include any income. However, later testimony by her showed she was unemployed, and the trial court considered that fact in awarding maintenance. Respondent’s affidavit does not indicate any debts.

While petitioner claims the trial court failed to consider certain factors, where the basis for an award of maintenance is established by the record, explicit findings regarding the statutory basis are not required. (In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904; In re Marriage of Coram (1980), 86 Ill. App. 3d 845, 848.) Contrary to respondent’s claim, the trial court specifically considered the life-style of the parties during the marriage. It also made express findings regarding some of the factors provided in section 504(b); however, it did not mention tax consequences. The trial court was not required to make an express finding on the tax consequences. (See Weinberg, 125 Ill. App. 3d at 916.) The record establishes a basis for the amount of the award, and we find no abuse of discretion occurred.

Respondent was unemployed at the time maintenance was awarded; however, she has an affirmative duty to try diligently to secure gainful employment. (Wolf, 180 Ill. App. 3d at 1008.) While petitioner earned a substantial income of over $218,000 per year, the trial court found that his net earnings were about $12,000 per month, as supported by the affidavit. Petitioner also had expenses, including those for the minor child and maintenance, which exceeded his monthly income. A party is entitled to maintenance not only on her own needs but also the comparative ability of the other party to pay. In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 258.

Respondent also was apportioned marital property which must be considered in awarding maintenance. (Mittra, 114 Ill. App. 3d at 631.) After credit is given to petitioner for his reduction of the mortgage principal, respondent receives 50% of the net equity of the marital residence, which at the time of trial would be $109,000. (Swigers, 176 Ill. App. 3d at 803.) She was awarded one-half of petitioner’s pension from which she will receive additional income when it becomes payable. Swigers, 176 Ill. App. 3d at 803.

The trial court further ordered petitioner to pay for the college expenses of the parties’ daughter. This expense could be properly considered by the trial court in determining the amount of maintenance. (Swigers, 176 Ill. App. 3d at 802.) The record supports the amount of the award, and we find no abuse of discretion.

In the last issue, respondent argues that the trial court made an inequitable distribution of the personal property. She points to the personal property in the marital home as found in exhibit 24 and the fact that she was only awarded one set of china, her choice of silver or crystal and a Hummel figurine collection.

The trial court has broad discretion to make an equitable apportionment of marital property. (In re Marriage of Zummo (1988), 167 Ill. App. 3d 566.) A court of review will not disturb that apportionment unless it can be clearly shown that the trial court abused its discretion. In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320.

Respondent testified about certain pieces of art in the marital home, a collection of Hummel figurines, sterling silver, china, crystal, a bicycle and a chaise lounge which were acquired during the marriage. A list of other personal property in the home was admitted (exhibit 24) as was a list of personal property delivered to respondent by petitioner from the marital home (exhibit 23). Petitioner testified that he had delivered three truckloads of furniture and clothing to respondent and gave her $7,700 in cash for furniture. The trial court awarded each party the personal property in his or her respective possession and then awarded respondent one set of china to be selected by petitioner, silver or crystal to be selected by respondent, and the Hummel collection.

Specific findings of value may be required if they are necessary to provide a basis for the trial and reviewing courts to determine the propriety of the property division; however, an apportionment in kind need not be accompanied by an exact evaluation. (In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 415-16.) There was testimony that respondent received personal property from the marital home as well as money from petitioner for furniture prior to the dissolution judgment. The trial court passed on the credibility of the witnesses in this respect. (Zummo, 167 Ill. App. 3d at 576-77.) While respondent claims the trial court compounded its error by allowing petitioner to choose the china, she in turn could select either the silver or crystal. On the basis of the record and the evidence before the trial court, we find no abuse of discretion in the division of personal property.

Based on the foregoing reasoning, the judgment of the circuit court is affirmed in part, and the cause is remanded to permit the trial court to allocate the Maine property as it deems proper.

Affirmed in part; reversed in part and remanded.

McLAREN and DUNN, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE CITY OF BATAVIA, Plaintiff-Appellant, v. ALETA L. ALLEN, Defendant-Appellee.
    Second District
    No. 2-90-1103
    Opinion filed August 30, 1991.
    William R. McGrath, of Wheaton, for appellant.
    Fred M. Morelli, Jr., of Law Offices of Fred M. Morelli, Jr., of Aurora, and Vincent C. Argento, of Law Offices of Vincent C. Argento, of Elgin, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Defendant, Aleta L. Allen, was charged with violation of a Batavia, Illinois, municipal ordinance which required in part that the doors and windows of taverns remain closed during business hours. Defendant moved to dismiss the charge alleging that the ordinance was unconstitutional. The trial court agreed with defendant and declared the ordinance unconstitutional. The city appeals.

Defendant was charged with violation of municipal ordinance 89 — 33 (Batavia, Ill., Municipal Code, title 3, ch. 3 — 9—E (1989)). That ordinance states:

“All doorways to premises upon which the sale of alcoholic liquor for consumption on the premises is licensed shall contain at least one door which is solid and contains no openings, louvers, screened portions, or other openings which may allow noise to pass through, and such door shall remain closed during all hours of business except as necessary for ingress and egress into said premises. Any window of such premises which opens into a room in which alcoholic liquor is sold or consumed shall remain closed at all times.”

The complaint alleged that defendant allowed the front door of the Night Gallery, a business licensed for the sale and consumption of alcohol, to remain open at 7:45 p.m. on October 27,1989.

Defendant responded with a motion to dismiss alleging that the ordinance violated her “right to access to the outside and to air and light.” She asked the court to find the ordinance unconstitutional. Although the motion to dismiss did not specify which constitutional provision the ordinance violated, at the hearing on the motion defendant argued that the ordinance violated “the constitutional right *** to enjoy the air and to enjoy the light.” She further argued that although the stated purpose of the ordinance was to control noise, the ordinance went too far and deprived people of “fresh air and light from the street.” Finally, defendant argued that the ordinance was not a reasonable exercise of police powers.

The trial court found that all of the taverns in Batavia are located in the downtown area, not in residential areas, and that there could be no noise emanating from an open tavern door that would have an adverse effect on anyone; the court determined that if a noise problem arose, it could be controlled by applying other ordinances and statutes. The court also found that it was important to the health and welfare of the citizens of Batavia that they have access to fresh air and light while in such establishments; the court determined that the ordinance deprived them of that right. The court concluded that the ordinance was unnecessarily intrusive and did not serve the purpose for which it was intended and was, therefore, unconstitutional. The city appeals from that ruling.

Batavia argues that the door and window regulation is a valid exercise of its police power to regulate licenses. Defendant argues that it is an unconstitutional zoning restriction of a purported nuisance and that it fails to serve the public health, safety, morals, or general welfare. We agree with the city that the door and window ordinance is a licensing restriction and not a zoning provision; it regulates establishments based on the type of business they conduct, not based on their location. See David E. Shelton Productions, Inc. v. City of Chicago (1988), 167 Ill. App. 3d 54, 56-57.

It is well established that unless an enactment impinges on a fundamental personal right or is drawn upon an inherently suspect classification, it is presumptively valid, and it will survive constitutional scrutiny if it is rationally related to a legitimate governmental purpose. (Triple A Services, Inc. v. Rice (1989), 131 Ill. 2d 217, 225-26.) A party challenging an ordinance has the burden of establishing its invalidity. (City of Aurora v. Navar (1991), 210 Ill. App. 3d 126, 132.) Liquor licensees are not an inherently suspect classification, and the government can impose regulations on liquor traffic that are more stringent than would be permitted in other businesses. (See Cheetah Enterprises, Inc. v. County of Lake (1974), 22 Ill. App. 3d 306, 314.) The trial court determined, however, that the ordinance impinged on the right to fresh air and light.

Assuming that there is a constitutionally protected right to fresh air and light, it is clear that the ordinance at issue has no effect on access to light. In the trial court, defendant urged that the word “solid” in the ordinance meant without a window. Defendant’s construction of the ordinance, however, does not comport with the plain meaning of the language. As the ordinance makes abundantly clear, “solid” merely means without an opening. A “solid” door, therefore, can be made entirely of glass or clear plastic or it can contain a window. If the meaning of a statute or ordinance is clearly expressed in the statute or ordinance, the courts cannot imply another meaning. Triple A Services, 131 Ill. 2d at 229.

The ordinance does not restrict access to air either. If tavern operators wish to provide “fresh” air in their establishments, the ordinance merely restricts the manner in which they may provide ventilation by requiring them to find an alternative to open doors and windows; they may, for example, use vents and fans. We conclude that the ordinance does not impinge on the right to fresh air and light.

The final question is whether the ordinance is rationally related to a legitimate governmental purpose.

The preamble to the ordinance identifies the problem the ordinance was enacted to combat. It states that the “practice of allowing doors [of taverns] to remain open *** is disturbing and creates a nuisance to citizens who are outside of such establishments and *** interferes with their peaceful enjoyment of public and private property in close proximity to such establishments.” There is no question that the ordinance is intended to control noise. Preventing disturbing noises is a legitimate governmental purpose. (See Kovacs v. Cooper (1949), 336 U.S. 77, 83, 93 L. Ed. 513, 520, 69 S. Ct. 448, 451.) It is reasonable to assume that keeping tavern doors and windows closed will cut down on the amount of noise from such establishments which is audible from the street. The ordinance is, therefore, rationally related to the goal of preventing disturbing noise. Although keeping tavern doors and windows closed may not be the only way, or the best way, or the least intrusive way of controlling noise from such establishments, it is not an unreasonable way.

The judgment of the circuit court of Kane County is reversed, and the cause is remanded to the circuit court for further proceedings.

Reversed and remanded.

McLAREN and INGLIS, JJ., concur.


text:
    CHARTER BANK AND TRUST OF ILLINOIS, Plaintiff-Appellee, v. BEVERLY NOVAK, Defendant-Appellant.
    Second District
    No. 2-90-1006
    Opinion filed September 6, 1991.

      Randall K. Erler, of Oakbrook Terrace, for appellant.
    Thomas B. Scheck, of Regas, Frezados & Harp, of Chicago, for appel-lee.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Beverly Novak, appeals from the denial of her motion to quash service of process in this forcible entry and detainer action instituted by the plaintiff, Charter Bank & Trust of Illinois. We affirm.

The plaintiff filed a complaint in forcible entry and detainer seeking possession of the premises occupied by the defendant. A summons was issued to the defendant on April 24, 1990, and personally served on her on April 25, 1990. On May 25, 1990, the case came up for status report, and the court set the cause for prove up on June 22,1990.

After two continuances, the prove up was held on July 3, 1990. There, the plaintiff presented the testimony of its president, John Hayes; the defendant did not appear. The court found that the plaintiff was entitled to possession of the premises but stayed the writ until July 10, 1990.

On July 27, 1990, the defendant filed a special and limited appearance contesting the court’s jurisdiction over her and a motion to quash the summons served on her. She relied on the allegation that the summons had failed to state a return date for her to appear. The defendant also asserted that because of the defective summons, she was deprived of her day in court. She attached to the motion a copy of the summons served on her. It stated that she should appear before the court at the “Win Enoch Annex, 209 E. Liberty Street, Wheaton, Illinois.” The form’s blank lines for time, date, and courtroom, however, were not completed. The defendant also stated that she first received notice of the July 3 judgment through a July 5 letter from the plaintiff’s attorney.

In her affidavit attached to her motion to quash, the defendant made the following statements: (1) on April 25, 1990, she was personally served with a summons; (2) the summons failed to give a date, time, and courtroom number where she was to appear; (3) upon receipt of the summons, she contacted the Du Page County circuit clerk and was told that the matter was set for courtroom 604 on May 25, 1990; (4) she appeared on May 25, 1990, at the clerk’s office and in courtroom 604; “however, during [her] appearance, this case was not called”; and (5) after receiving the letter from the plaintiff’s attorney, she immediately contacted her attorney to represent her and file a motion to quash the service of process.

On August 16, 1990, the parties appeared before the court to litigate the motion to quash. The plaintiff argued that the defendant had been served properly and that the summons had been sufficient to advise her what she needed to do to appear and defend. The defendant argued that the lack of date, time, and courtroom information had rendered the summons insufficient to support in personam jurisdiction over her in accordance with Supreme Court Rule 101(b) (134 Ill. 2d R. 101(b)).

The court noted that the defendant was served a month prior to the first hearing and that she had learned when and where it was to be held. The court stated:

“[T]he purpose of a summons is to provide notice to a Defendant that legal action of some form *** has been brought against them and that a hearing will be conducted at a certain date, time and place.
All of the information, other than the date, time and place, was provided in the summons that was, indeed, served upon her.
She did inquire through her own efforts the other information needed to come to this courtroom, and she did come here.
I note that *** the general conduct of business in this courtroom is to have *** every day the call posted on the first floor outside the doorway. The call is also here in the courtroom, and the Clerk is available to answer questions.
Although this is an imperfect summons, indeed, upon its face, I believe it achieved its intended purpose of notifying the Defendant that she needed to appear. And she did, indeed, come to this courtroom on the appointed day — morning for the call.
The fact that she did not step forward is something that any summons, even with a proper date and time on it, cannot guarantee. If she didn’t step forward, she certainly could have — if she, indeed, didn’t hear the case called, she could have stepped forward and alerted the Clerk that she didn’t hear the case called.”

The court denied the motion to quash. The defendant’s timely appeal followed.

On appeal, the defendant contends that the summons here was sufficient neither to support the court’s personal jurisdiction over her nor to satisfy her due process rights to notice of a hearing prior to deprivation of property. She relies on Supreme Court Rule 101(b)(2)’s provision that, in a forcible entry and detainer action, the summons “shall require each defendant to appear on a day specified in the summons not less than seven or more than 40 days after the issuance of summons.” (134 Ill. 2d R. 101(b)(2).) She also correctly notes that proper service of summons is a necessary prerequisite for in personam jurisdiction absent a defendant’s general appearance before the court. (State Bank v. Thill (1986), 113 Ill. 2d 294, 308.) If a defendant has not been served properly and has not appeared to defend in the cause, an order entered against her in the proceeding is void ab initio regardless of whether she had actual knowledge of the proceeding. Theodorakakis v. Kogut (1990), 194 Ill. App. 3d 586, 588.

The plaintiff responds that the defects in the summons were minor and, therefore, did not deprive the court of jurisdiction over the defendant. The plaintiff cites several cases in which the court had jurisdiction over the defendant despite technical irregularities in the summons. (Sidway v. Marshall (1876), 83 Ill. 438 (the summons stated the plaintiff’s name incorrectly); Chester & Tamaroa Coal & R.R. Co. v. Lickiss (1874), 72 Ill. 521 (the summons failed to specify the form of the action); and Thompson v. Turner (1859), 22 Ill. 389 (the amount in controversy was incorrect).) Finally, the plaintiff argues that the facts of this cause are analogous to those in Iroquois Furnace Co. v. Wilkin Manufacturing Co. (1899), 181 Ill. 582. In that case, the notice by publication required the defendant to appear on an impossible date. The supreme court held that there was in personam jurisdiction over the defendant because the notice informed the debtor of the action, the identity of the plaintiff, for what amount and before what court, and it required the defendant to appear “within the time limited for his appearance in such case.” Iroquois Furnace, 181 Ill. at 596.

The objectives of service of process are: (1) to notify the defendant of pending litigation and enable him to appear and defend and (2) to vest jurisdiction in the trying court. (Toland v. Sprague (1838), 37 U.S. (12 Pet.) 300, 329, 9 L. Ed. 1093, 1105; In re Marriage of Wilson (1986), 150 Ill. App. 3d 885, 887; Bell Federal Savings & Loan Association v. Horton (1978), 59 Ill. App. 3d 923, 926.) We evaluate the summons served on the defendant with that purpose in mind. We also adhere to the rule that a court should not elevate form over substance, but should construe a summons liberally. Public Taxi Service, Inc. v. Ayrton (1973), 15 Ill. App. 3d 706, 712.

The summons here informed the defendant that the plaintiff filed a forcible entry complaint against her in the circuit court of Du Page County and that the cause would be before the court at the Win Enoch Annex. Under older case law (Michael v. Mace (1891), 137 Ill. 485; Clark v. Marfield (1875), 77 Ill. 258; and Iroquois Furnace Co. v. Wilkin Manufacturing Co. (1899), 181 Ill. 582), we could find that the absence of the exact date and place is not so serious a deficiency as to invalidate the notice. Furthermore, Supreme Court Rule 101 (134 Ill. 2d R. 101) supports the trial court’s ruling here.

Rule 101 provides two sample forms: one for a summons requiring appearance on a specific date (134 Ill. 2d R. 101(b)(1)) and one for a summons that requires the defendant to appear within 30 days after service (134 Ill. 2d R. 101(d)). Further, the rule provides that, in a forcible entry and detainer action, the summons “shall require each defendant to appear on a day specified in the summons not less than seven or more than 40 days after the issuance of summons.” (134 Ill. 2d R. 101(b)(2).) Rule 101 also provides that “[t]he use of the wrong form of summons shall not affect the jurisdiction of the court.” 134 Ill. 2d R. 101(e).

By analogy to Rule 101(e), the use of a form without complete date and time information was no barrier to personal jurisdiction over the defendant. Furthermore, we find that there was no due process violation here. We find that, despite its failings, the summons adequately advised the defendant of what she needed to do in order to appear and defend. See Ill. Ann. Stat., ch. 110A, par. 101(e), Historical & Practice Notes, at 98 (Smith-Hurd 1985).

Here the defendant was informed by the summons that she had been named as a defendant in an identified pending litigation. Pursuant to the summons’ information, she called the clerk of the court and learned the date, time, and courtroom where she should appear. According to her affidavit, on the correct date for the first hearing the defendant did, in fact, come both to the correct courtroom and to the court clerk’s office.

Considering Rule 101(e) and the circumstances here, we find no support for the defendant’s contention that the absence of the date, time, and courtroom number on her summons is a sufficient basis to quash the summons. We find, rather, that the summons here, which was both issued and received between 7 and 40 days before the first scheduled hearing date, fulfilled its objective of notifying the defendant of pending litigation so that she was enabled to appear and defend (Toland v. Sprague (1838), 37 U.S. (12 Pet.) 300, 329, 9 L. Ed. 1093, 1105; In re Marriage of Wilson (1986), 150 Ill. App. 3d 885, 887), and we conclude that the trial court properly denied the defendant’s motion to quash the service of process.

The order of the circuit court is affirmed.

Affirmed.

McLaren and NICKELS, JJ., concur.


author: JUSTICE WOODWARD JUSTICE DUNN,

text:
    MARY ANN BENHART et al., Plaintiffs-Appellants, v. ROCKFORD PARK DISTRICT, Defendant-Appellee.
    Second District
    Nos. 2-90-1190, 2-90-1433 cons.
    Opinion filed August 30, 1991.

      Donald Q. Manning and Daniel T. Williams, both of Clark, McGreevy & Johnson, P.C., of Rockford, for appellants.
    Michael W. Tootooian, of Ancel, Glink, Diamond & Cope, P.C., of Chicago, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiffs, Mary Ann and Ray Benhart, appeal the circuit court’s dismissal of their second amended complaint seeking damages for injuries Mary Ann suffered while at a facility owned by defendant, Rockford Park District. Plaintiffs’ sole issue on appeal is whether the trial court erred in ruling that the first amended complaint failed to state a cause of action for willful and wanton conduct.

In count I of the first amended complaint, plaintiffs alleged that on June 18, 1988, Mary Ann paid an entrance fee and was admitted to the Magic Waters theme park and wave pool owned by defendant. Mary Ann entered the wave pool when “the automatic wave machine created a wave which made contact with Mary Ann Benhart causing her to lose her footing and fall.” During 1987, the wave pool had a series of nonslip strips on the floor of the wave pool. According to plaintiffs, those strips were maintained for the purpose of providing a footing for bathers in the pool. Defendant intentionally removed the strips from the wave pool, “even though the non-slip strips or other non-slip devices were maintained in the pool to allow bathers to maintain their balance.” Plaintiffs alleged that because of the absence of any nonslip strips, “and as a result of being contacted by the machine generated wave, Mary Ann Benhart was thrown about and her leg and knee were severely torn and lacerated, and various bones in the knee of Mary Ann Benhart were also fractured and dislocated.” Plaintiffs alleged that the proximate cause of her injuries was the absence of the nonslip strips.

In addition, plaintiffs alleged that the absence of the strips created an unreasonably dangerous condition because the bathers could not rely on the floor of the wave pool to maintain their balance. According to plaintiffs:

“Defendant’s conduct in removing said non-slip strips or other non-slip devices was willful and wanton and in reckless disregard of the probability that individuals would suffer injury in said wave pool in that Defendant’s conduct in so removing the strips was in conscious disregard of Defendant’s knowledge that the aforesaid strips were formerly maintained for the safety of bathers.”

Count II alleged a cause of action for loss of consortium.

Defendant filed a motion to dismiss the amended complaint pursuant to section 2 — 615 of the Civil Practice Act (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). Defendant argued that the amended complaint was insufficient because it failed to allege willful and wanton conduct as defined in section 1 — 210 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 210). Specifically, defendant asserted that the amended complaint lacked allegations that removal of the strips caused injuries to others prior to Mary Ann’s injury. In addition, defendant maintained that removal of the strips was done to make the wave pool more safe because “the very purpose of the wave pool is to move persons within the pool and in effect make person lose their balance.” Defendant argued that the presence of nonslip strips was more likely to cause injury in a wave pool. Finally, defendant argued that the fact that the nonslip strips were placed in the pool for safety reasons does not mandate the conclusion that the removal of the strips necessarily created a dangerous condition.

Plaintiffs responded to the motion to dismiss by arguing that the amended complaint sufficiently alleged willful and wanton conduct based on the common-law definition stated in O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462. Defendant countered that the Tort Immunity Act was amended in 1986 in response to the “ ‘litigation crisis,’ ” and that the legislature enacted the statutory definition of willful and wanton to limit local entities’ liability. Defendant also argued that the allegation that the lack of the strips was the proximate cause of the injury was pure speculation. The trial court dismissed the complaint, and plaintiffs’ appeal followed.

When considering the sufficiency of a complaint dismissed pursuant to a section 2 — 615 motion, the reviewing court must determine whether the allegations in the complaint, when construed in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 505.) If the complaint does not allege facts necessary to state a cause of action, the deficiency may not be cured by liberal construction. (Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 287.) To avoid.dismissal for failure to state a cause of action, the complaint must set out sufficiently every essential fact to be proved. (In re Beatty (1987), 118 Ill. 2d 489, 499.) Conclusions of law or fact unsupported by specific factual allegations are not taken as true. Burdinie, 139 Ill. 2d at 505.

To plead a sufficient cause of action in negligence, the plaintiff must allege the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140.) "Where, as here, the defendant is a local public entity (see Ill. Rev. Stat. 1989, ch. 85, par. 1 — 206) and the injury is based on the existence of a condition of public property used for recreational purposes, the plaintiff must also plead that the proximate cause of the plaintiff’s injury was the governmental entity’s willful and wanton conduct. Ill. Rev. Stat. 1989, ch. 85, par. 3 — 106.

According to plaintiffs, willful and wanton conduct is defined as:

“ ‘[I]ntentional or *** committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by ordinary care.’ ” (O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 469, quoting Lynch v. Board of Education of Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415, 429.)

Plaintiffs assert that their allegations are sufficient under this definition.

Defendant responds that the proper definition of willful and wanton is that set forth in section 1 — 210 of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 210). Section 1 — 210 provides:

“ ‘Willful and wanton conduct’ as used in this Act means a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.” (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 210.)

Section 1 — 210 went into effect on November 25, 1986. Defendant argues that this definition was meant to supersede the O’Brien common-law definition because the legislature amended the Tort Immunity Act “to protect local public entities and public employees from liability arising from the operation of government.” Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101.1(a).

Plaintiffs counter that the statutory definition and the common-law definition are indistinguishable and that the legislature, in amending the Tort Immunity Act, is presumed to have been aware of O’Brien and “the failure of the legislature to expressly disavow the O’Brien definition gives rise to a presumption that the legislature did not intend to change the previously existing definition.”

When a statute defines its own terms, those terms must be construed according to the definitions given them in the act. (Beecher Medical Center, Inc. v. Turnock (1990), 207 Ill. App. 3d 751, 754.) Although section 1 — 210 is not ambiguous, and ordinarily we would not look beyond the statutory language, we agree with defendant that the definitions are different.

The legislature is presumed to have been aware of the O’Brien common-law definition. (Kozak v. Retirement Board of the Firemen’s Annuity & Benefit Fund (1983), 95 Ill. 2d 211.) That presumption does not support plaintiffs’ argument, however, because it is presumed that the legislature intended to change the existing law when amending a statute that has been the subject of judicial interpretation. (In re Marriage of Sutton (1990), 136 Ill. 2d 441, 447.) Defendant argues that the 1986 amendment changed the law because the common-law definition of “willful and wanton” does not include the requirement of “a course of action.”

Prior to the 1986 amendments, the Tort Immunity Act provided that for injuries occurring on property used for recreational purposes, plaintiffs would have to prove that the local public entity was “guilty of willful and wanton negligence.” (Ill. Rev. Stat. 1985, ch. 85, par. 3 — 106.) The act did not include a definition of “willful and wanton.” The 1986 amendments, in addition to including a definition of the term “willful and wanton,” changed the wording of section 3 — 106. Section 3 — 106 currently states that a local public entity is immune from liability unless the local entity “is guilty of willful and wanton conduct.” Ill. Rev. Stat. 1989, ch. 85, par. 3 — 106.

When “the original statutory language is clear, the court has declined to view an amendment as simply clarifying the legislature’s intention.” (State of Illinois v. Mikusch (1990), 138 Ill. 2d 242, 252.) Since section 1 — 210 was added, we only will consider the language of section 3 — 106 as it existed prior to the amendment. Although section 3 — 106 used the term “willful and wanton negligence,” but did not define it, section 3 — 106 was not ambiguous. The common-law definition of “willful and wanton,” as quoted from O’Brien, was derived from the definition stated in Myers v. Krajefska (1956), 8 Ill. 2d 322, 328-29:

“We have examined the various cases cited by defendant, and while it is to be noted that in many instances different wording, language and terminology is employed by the different courts in various instances, the basic general concept of the term [“willful and wanton”] as applied to the facts in the particular cases has remained essentially the same. The basic element in all of these cases indicates that liability can be founded under such a cause of action where the act was done with actual intention or with a conscious disregard or indifference for the consequences when the known safety of other persons was involved.”

This foundational definition is nearly identical to that used in section 1 — 210, with the exception of the addition of the “course of action” language included in the statutory definition. We conclude that, while the substitution of the term “conduct” for the term “negligence” in section 3 — 106 and the addition of the statutory definition were implemented to clarify the law, section 1 — 210 was also designed to change the law, thereby limiting the liability of public entities.

Consequently, to plead a cause of action sufficiently for willful and wanton conduct, in addition to the O’Brien definition, plaintiffs needed to allege that defendant engaged in a course of action which proximately caused Mary Ann’s injuries.

The first amended complaint alleges that on June 18, 1988, plaintiff paid a fee and entered defendant’s “Magic Waters” water theme park and wave pool; that plaintiff entered the wave pool and subsequently the automatic wave machine created a wave which made contact with plaintiff and caused her to lose her footing and fall; that on June 18, 1988, the floor of the wave pool was not equipped with nonslip strips on the bottom; that during 1987 and previous years the wave pool had a series of nonslip strips which enabled bathers to maintain their balance; that said nonslip strips were removed from the wave pool sometime between 1987 and June 17, 1988; that such nonslip strips were removed even though these had been maintained in the pool to allow bathers to maintain their balance; that the removal of the nonslip strips was in conscious disregard of defendant’s knowledge that the protection said strips previously provided would be absent commencing in 1988; that the absence of the nonslip strips caused plaintiff’s fall, which resulted in permanent injuries to her leg and knee; and that at all times defendant owed a duty to plaintiff to refrain from engaging in willful and wanton conduct that was likely to cause injury.

Based upon these allegations, we interpret the first amended complaint as alleging sufficient facts to show the willful and wanton conduct of the defendant in the removal of nonslip strips was a course of action that caused Mary Ann’s injuries.

We note that defendant contends the presence of nonslip strips actually may be a hazard in a wave pool. While riding a wave, a body surfer may slide along the bottom of the pool. The presence of nonslip strips might cause abrasions on the body surfer, whereas a smooth floor would decrease the chance of abrasions. Thus, defendant maintains that removing the nonslip strips may actually increase the safety of the wave pool. These are issues for a trier of fact to decide.

We do not agree with the trial court that the amended complaint fails to allege facts which constitute a cause of action; thus, the dismissal is reversed, and this cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

BOWMAN, J., concurs.

JUSTICE DUNN,

dissenting:

I disagree with the majority’s conclusion that plaintiff alleged facts sufficient to support a cause of action for willful and wanton conduct. Plaintiff’s complaint alleges only that a machine-created wave caused her to injure her leg and knee because the floor of the wave pool was smooth, slippery and otherwise could not be relied upon by the plaintiff to keep her footing after being knocked over by the wave. Plaintiff also alleges that in 1987, defendant maintained the floor of the wave pool with nonslip strips or other nonslip devices designed to prevent bathers from losing their balance when being contacted by machine-created waves.

The majority concludes the definition of willful and wanton conduct set forth in section 1 — 210 of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 210) was designed to change the existing definition set forth in O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, based mainly on the fact that section 1 — 210 adds language requiring a “course of action.” I do not believe the definition set forth in section 1 — 210 was intended to alter the existing law. However, this issue need not be addressed in the present case because the plaintiff fails to allege facts sufficient to support a cause of action under either definition.

Under either definition, to establish an utter indifference to or a conscious disregard for the safety of others, the complaint must allege facts establishing that defendants knew or should have known of the potential danger to bathers. (See O’Brien, 83 Ill. 2d at 469; Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 190.) Here, the allegations are insufficient to withstand defendant’s motion to dismiss. Plaintiff does not allege intentional injury, nor does plaintiff allege that on prior occasions other bathers had been injured due to the lack of nonslip strips and that defendant knew of such injuries. Plaintiff merely alleged that nonslip devices were once maintained on the floor of the wave pool, but were removed. The act of removing the strips is not in and of itself sufficient to support this cause of action. The facts as alleged fail to demonstrate willful and wanton conduct under either definition.