author: JUSTICE O’CONNOR

text:
      In re MARRIAGE OF LEE STAMBERG, Petitioner-Appellant, and BARBARA STAMBERG, Respondent-Appellee.
    First District (1st Division)
    No. 1-88-2595
    Opinion filed August 12, 1991.

      Benjamin P. Hyink, P.C., of Chicago (Benjamin P. Hyink, of counsel), for appellant.
    Arnold H. Rubin, of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After Lee Stamberg filed a petition for the dissolution of his marriage, he was charged with aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1)) for allegedly sexually abusing his daughters and with possessing child pornography (Ill. Rev. Stat. 1987, ch. 38, par. 11 — 20.1(a)(2)). Thereafter, Barbara Stamberg sought a preliminary injunction to enjoin him from selling or otherwise disposing of his assets. The trial court granted the preliminary injunction. Lee appeals. For the reasons set forth below, we affirm.

In 1980 Lee and Barbara were married. Later, they had two children, Lisa and Kimi. Lisa was born on February 16, 1981, and Kimi was born on May 19, 1982. Lee was employed as a grammar school principal for approximately 23 years. He earned about $40,000 a year, plus medical and hospitalization insurance under a pension plan. It was uncontested that Lee acquired nonmarital property, including the Stambergs’ home at 4804 Central Avenue in Western Springs, Illinois. Barbara alleged that the house was worth approximately $200,000 and was subject to an unpaid mortgage in the amount of $40,000. Lee also owned an antique “Ford Model A,” which Barbara alleged was worth $9,000.

On December 17, 1987, Lee filed a petition for the dissolution of marriage. In June 1988, after Lee had filed for a divorce, he was charged with aggravated criminal sexual assault for allegedly sexually abusing his daughters and with possessing child pornography. The Department of Children and Family Services investigated and concluded that sexual abuse was “indicated.” Thereafter, the trial court denied Lee visitation.

As a consequence of the criminal proceedings against Lee, Barbara sought a preliminary injunction to enjoin Lee from transferring or disposing of his assets, e.g., the home where Barbara and the children lived and the antique car, contending that Lee’s financial condition was uncertain and likely to deteriorate. Thus, she argued that a trust should be established for the children’s benefit and argued that prior to that determination, Lee should be enjoined from disposing of his assets in order to preserve the status quo. After hearing the parties’ arguments, the court granted Barbara’s motion in part. Lee was enjoined from placing liens in excess of $100,000 on the Stamberg home, and he was ordered to place $100,000 in an interest-bearing account if he sold the Stamberg home.

In August 1988, Lee filed a notice of appeal, but did not designate that it was an interlocutory appeal and did not provide a record on appeal within 30 days of the entry of the order, as required by Supreme Court Rule 307 (134 Ill. 2d R. 307). However, with leave of this court and over Barbara’s objections, an amended notice of interlocutory appeal was filed.

Lee argues that the trial court abused its discretion when it issued the preliminary injunction. We disagree. The issuance of a preliminary injunction is solely within the trial court’s discretion, and its decision will not be disturbed absent an abuse of discretion. (Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill. App. 3d 793, 796, 483 N.E.2d 999, citing Kessler v. Continental Casualty Co. (1985), 132 Ill. App. 3d 540, 545, 477 N.E.2d 1287.) A trial court has abused its discretion if its decision is against the manifest weight of the evidence. (Jefco Laboratories, Inc., 136 Ill. App. 3d at 796-97.) A preliminary injunction is granted to preserve the parties’ status quo until their case is heard on its merits.

A court may issue a preliminary injunction when a party proves that: (1) she has a clear and lawful right for which she seeks protection; (2) she will suffer irreparable harm; (3) she has no adequate remedy at law; (4) she is likely to succeed on the merits; and (5) in the absence of the preliminary relief, she would suffer greater harm without the injunction than the defendant will suffer if it is issued. (Hough v. Weber (1990), 202 Ill. App. 3d 674, 684, 560 N.E.2d 5, appeal denied (1990), 135 Ill. 2d 556, 564 N.E.2d 837; Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill. App. 3d 285, 291, 492 N.E.2d 969; Mister v. A.R.K. Partnership (1990), 197 Ill. App. 3d 105, 111, 553 N.E.2d 1152, appeal denied (1990), 133 Ill. 2d 559, 561 N.E.2d 694.) “A complaint for preliminary injunction must plead facts which clearly establish a right to injunctive relief, and allegations consisting of mere opinion, conclusion or belief are not sufficient to support issuance of the writ.” Hough v. Weber (1990), 202 Ill. App. 3d 674, 684, 560 N.E.2d 5, appeal denied (1990), 135 Ill. 2d 556, 564 N.E.2d 837, citing Village of Lake in the Hills v. Laidlaw Waste Systems, Inc. (1986), 143 Ill. App. 3d 285, 291, 492 N.E.2d 969.

First, we consider Barbara’s interest. In order to be granted a quires a showing of a clearly ascertainable right or interest. (Hough, 202 Ill. App. 3d at 685, citing Laidlaw Waste Systems, Inc., 143 Ill. App. 3d at 292.) In the injunctive relief context, the doctrine of standing “ ‘makes it necessary for a party seeking such relief to allege an injury in fact to some substantive interest he possesses which is recognized by statute or common law.’ ” (Hough, 202 Ill. App. 3d at 685, quoting Laidlaw Waste Systems, 143 Ill. App. 3d at 292.) Barbara alleges, in her verified motion for injunctive relief and her memorandum of law in support of her motion, that her parental status and interest in the children’s support, maintenance and welfare provided her and the children with a protectable substantive interest pursuant to section 503(g) of the Marriage and Dissolution Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 503(g)). Section 503(g) of the Act states, “[t]he court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.” Thus, we find that providing for the children’s support, maintenance, education, and general welfare is a protectable interest.

Second, we consider whether Barbara sufficiently alleged that an irreparable injury would occur if the preliminary injunction was not granted. Specifically, Barbara alleged that Lee’s assets would be disposed of to the children’s detriment because: he posted $15,000 in bond and he will incur large expenses with respect to defending the pending criminal charges; he will continue to incur legal fees with respect to the pending divorce action; and he will be responsible for making child support payments. As a consequence of the foregoing, Barbara contends that the children’s interests should be protected by establishing a trust for the children pursuant to section 503(g) of the Act because once his assets are gone, the children will not be able to collect or receive support payments. Barbara is seeking to protect Lee’s assets, on behalf of the children, against other creditors. Based upon the facts Barbara alleged and the fact that Lee did not introduce a verified answer that indicated that he had sufficient assets or funds, Barbara sufficiently showed that the injury was imminent. Thus, the evidence with respect to Lee’s financial status was not contradicted. Without the injunction, we believe that the parties’ status quo would have been substantially altered.

Third, we find that the trial court did not abuse its discretion when it determined that there was an inadequate remedy at law if Lee dissipated all of his assets. “For there to be an adequate remedy at law, the remedy must be clear, complete, and as practical and efficient to the ends of justice and its prompt administration as an equitable remedy.” (Fischer v. Brombolich (1991), 207 Ill. App. 3d 1053, 1065, 566 N.E.2d 785.) The trial court does not have not have to wait until an injury actually occurs to grant an injunction. (Shorr Paper Products, Inc. v. Frary (1979), 74 Ill. App. 3d 498, 505, 392 N.E.2d 1148.) Clearly, the children would suffer irreparable harm if Lee’s assets were dissipated because he would not be able to contribute to their support.

Fourth, the trial court did not abuse its discretion when it determined that Barbara would succeed on the merits. “It is well established that a party is not required to make out a case that will in all events warrant relief on the merits; it is only necessary that the moving party raise a fair question as to the existence of the right claimed and that he will be entitled to the relief prayed for if the proof should sustain his allegations.” (Fischer v. Brombolich (1991), 207 Ill. App. 3d 1053, 1066, 566 N.E.2d 785, citing Tierney v. Village of Schaumberg (1989), 182 Ill. App. 3d 1055, 538 N.E.2d 904, appeal denied (1989), 127 Ill. 2d 642, 545 N.E.2d 132.) Here, Barbara’s complaint raised a fair question as to Lee’s ability to fulfill his obligation to contribute to the children’s future financial needs.

Finally, the trial court did not abuse its discretion when it determined that Barbara and the children would suffer greater harm without the injunction than Lee would suffer if the injunction were issued because Lee did not produce a verified pleading indicating that he WOUld Sustain any harm. Consequently, Barbara’s allegations with respect to the dissipation of Lee’s assets and his inability to pay for the children’s future financial needs provided a reasonable basis for the trial court to find that Barbara and the children would suffer greater harm without the injunction than Lee would suffer with the injunction.

Lee also argues that, pursuant to section 503(g) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(g)), the trust fund should not have been created, contending that the preliminary injunction was the grounds for the trust fund. We disagree. The injunction was not a mechanism for creating the trust. Rather, the trust, which was not mentioned in the preliminary injunction order, was the most effective means to provide for the children. Moreover, the court does not abuse its discretion in establishing a trust fund where circumstances suggest that the parents’ future financial ability to pay child support is in jeopardy. (Olsher v. Olsher (1979), 78 Ill. App. 3d 627, 637, 397 N.E.2d 488.) Here, the record indicates that Lee would be unable, in the future, to provide adequate financial support for his daughters because of his pending criminal charges, the likelihood of an expensive defense and the possibility of imprisonment.

Barbara makes two arguments, which we reject. First, she contends that Lee’s appeal should be dismissed for failing to designate his appeal as “interlocutory” and for failing to comply with Supreme Court Rule 307 because he did not provide a record on appeal within 30 days of the entry of the order appealed from. However, Lee was granted leave to file an amended appeal and that appeal complied with Rule 307. Further, Barbara failed to show that she was prejudiced. (See Burtell v. First Charter Service Corp. (1979), 76 Ill. 2d 427, 434, 394 N.E.2d 380.) Second, Barbara argues that the appeal should be dismissed as moot, contending that the facts upon which the injunction were based have changed. She cites Lee’s dismissal from his job as a school principal, his hiding of assets and his unknown whereabouts. None of those facts, however, appear in the record and, therefore, mil not be considered. Mid-State Savings & Loan Association v. Illinois Insurance Exchange, Inc. (1988), 175 Ill. App. 3d 265, 268, 529 N.E.2d 696, appeal denied (1989), 124 Ill. 2d 556, 535 N.E.2d 915; Nameoki Township v. Cruse (1987), 155 Ill. App. 3d 889, 895, 508 N.E.2d 1080.

Based upon the foregoing, the trial court acted within the scope of its discretion when it granted the preliminary injunction.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re MARRIAGE OF GERALD J. SMOLLER, Petitioner-Appellant, and OLIVIA SMOLLER, Respondent-Appellee.
    First District (1st Division)
    Nos. 1-89-0877, 1-89-1294 cons.
    Opinion filed August 12, 1991.

      Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Howard A. London, of counsel), for appellant.
    Batler & Schwartz, of Buffalo Grove, and Kirsh, Berman & Hoffenberg, of Chicago (Jerome M. Kaplan and Allan Hoffenberg, of counsel), for appel-lee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Gerald Smoller appeals from the denial of his petition for dissolution of marriage and from the denial of a motion for a change of venue based on the prejudice of the trial judge.

Gerald and Olivia Smoller were married on August 1, 1965. They have two children, a daughter, born June 23, 1968, and a son, born May 6,1971.

On August 5, 1985, Gerald filed a petition, as amended, for dissolution of marriage on grounds of irreconcilable differences and mental and physical cruelty. (Ill. Rev. Stat. 1985, ch. 40, pars. 401(a)(1), (a)(2).) Olivia subsequently filed a petition for legal separation and custody.

Bifurcated trial proceedings in the matter began in April 1988.

Following testimony on the issue of grounds, the trial judge denied Gerald’s petition, determining, in part, that the evidence did not support a finding of irreconcilable differences but indicated merely that Gerald was more interested in a relationship with another woman. The trial judge also remarked that he did not believe Gerald had made attempts at reconciliation or that future attempts would be futile.

Trial continued on the issues of maintenance, child support, and educational expenses for the children. During that portion of the trial, Gerald unsuccessfully sought a change of venue based on the prejudice of the trial judge (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1001(a)(2)).

Ultimately, judgment for a legal separation was granted in Olivia’s favor and Gerald was ordered to pay maintenance, child support, college expenses for the couple’s daughter, and attorney fees incurred by Olivia.

This appeal followed.

In appealing from the denial of his petition for dissolution, Gerald argues only that the determination that irreconcilable differences were not sufficiently proved was against the manifest weight of the evidence. He makes no challenge that the denial was improper in light of evidence produced as to the other grounds alleged. Accordingly, we summarize, below, only testimony adduced pertinent to the issue of irreconcilable differences.

Gerald testified that difficulties in the marriage began approximately at the time of the birth of the couple’s son in 1971. Disagreement first arose over whether the couple could afford to purchase a house. Nevertheless, the couple purchased a house in 1971 with a down payment provided by Gerald’s parents. Disagreement later arose concerning finances and disciplining the children. Olivia also ceased attending social gatherings with Gerald at that time. The couple’s physical relationship also deteriorated. At one point, Olivia asked Gerald to sleep in a separate room.

In February 1982, Gerald moved out of the house at Olivia’s request, but returned after eight days. Within months, disagreements again arose. In fact, Gerald testified, the couple could not agree on any matter. Gerald also stated that, during that time, Olivia did not want him to sleep in the couple’s bedroom. Affection between them had ceased. Olivia requested Gerald to quit the marital residence on numerous occasions. Gerald had suggested that the couple seek counseling, but Olivia refused.

In May 1983, Gerald again left the marital residence. However, he continued to visit on a regular basis to see the children and care for the house. He and Olivia would also, together, see mutual friends on weekends. Gerald testified he was uncertain of the status of their marriage at that time.

Gerald returned to the marital residence in September 1983. Arguments continued over finances and other matters. Gerald again suggested counselling but Olivia refused.

Gerald moved out of the marital residence for the last time in December 1984 and the couple has lived separate and apart since that time. Gerald stated that when he left, he told Olivia he was never returning. He stated he has no feelings for her.

In 1985, however, the couple sought counseling from Elaine Krumbien, a social worker contacted by Olivia. By that time, Gerald was dating another woman, whom he had met after leaving the marital residence. Olivia insisted to Krumbien that her further attempts at reconciliation were dependent on Gerald ending his relationship with that woman. Krumbien believed Gerald’s relationship with the woman was irrelevant. Because Olivia felt Krumbien condoned Gerald’s relationship with the other woman, Olivia refused further counselling with Krumbien.

Gerald refused to make further reconciliation efforts.

Olivia’s testimony contradicted Gerald’s explanation of the couple’s disagreements. Contrary to Gerald’s statement that the couple disagreed over many matters, Olivia testified the couple was able to resolve almost all of their differences. Olivia also denied ever having told Gerald that she did not want to be married to him and that she wanted him to quit the marital residence. However, she acknowledged Gerald had informed her in 1984 that he intended to leave when a settlement was realized in a lawsuit he had referred to another attorney. After Gerald left in December 1984, he refused to talk to Olivia, except regarding their children, and told her that he had no interest in their marriage. Olivia testified it was she who suggested counselling and that it was Gerald who had refused. Gerald had, however, agreed to see Krumbien. Olivia admitted to refusing to continue counselling with Krumbien and stated Gerald refused Olivia’s request to seek other counselling. Finally, Olivia stated she continues to love Gerald and desires to remain married to him but that Gerald hates her.

In Illinois, pursuant to section 401(a)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act), a marriage may be dissolved without a determination of the fault of either party where three conditions exist: the parties have lived separate and apart for a continuous period in excess of two years; irreconcilable differences have caused the irretrievable breakdown of the marriage; and efforts at reconciliation have failed or future reconciliation attempts would be impracticable and not in the best interests of the family. Ill. Rev. Stat. 1985, ch. 40, par. 401(a)(2); Ill. Ann. Stat., ch. 40, par. 401, Supplement to Historical & Practice Notes at 19 (Smith-Hurd Supp. 1991).

The Supplement to the Historical and Practice Notes to the Act direct attention to In re Marriage of Bates (1986), 141 Ill. App. 3d 566, 570, 490 N.E.2d 1014, 1016, as some guidance in interpreting the requirements of section 401(a)(2). Bates involved an appeal from the denial of a petition for dissolution based upon allegations of mental cruelty. However, the appellate court held the no-fault provision of section 401(a)(2) applicable even though the section became effective during the pendency of post-trial motions. Determining the record provided sufficient basis to address the issue for the first time on appeal, the court found the requirements of the section satisfied.

Specifically, the court concluded the parties had been separated for the minimum period of two years, had attempted reconciliation and counselling without success, and that difficulties and bitterness existed between the parties. The court found the petitioner entitled to dissolution pursuant to the section and remanded the cause with directions to the trial court to enter an immediate order accordingly. (Bates, 141 Ill. App. 3d at 570, 575, 490 N.E.2d at 1016, 1020.) In so holding, the court defined irreconcilable differences as “the existence of marital problems which have so impaired the marriage relationship that the legitimate objects of matrimony have been destroyed,” following the California Appellate Court’s definition of that term in In re Marriage of Walton (1972), 28 Cal. App. 3d 108, 116, 104 Cal. Rptr. 472, 479. (Ill. Ann. Stat., ch. 40, par. 401, Supplement to Historical & Practice Notes, at 19 (Smith-Hurd Supp. 1991).) The court further defined an irretrievable breakdown of a marriage to exist “where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation,” following the Georgia Supreme Court’s interpretation of that phrase in Harwell v. Harwell (1974), 233 Ga. 89, 91, 209 S.E.2d 625, 627. Ill. Ann. Stat., ch. 40, par. 401, Supplement to Historical & Practice Notes, at 19 (Smith-Hurd Supp. 1991).

Relying primarily on Bates and cases cited therein, Gerald contends here that Olivia’s desire to maintain the couple’s marriage, a desire Gerald does not share, cannot negate the conclusion that the evidence established that the legitimate objects of matrimony no longer exist.

Olivia does not dispute that the parties have lived separate and apart for the requisite two-year period, but contends Gerald’s testimony was insufficient to determine that irreconcilable differences existed and that attempts at reconciliation would be futile. Olivia focuses primarily on the trial judge’s assessment of Gerald’s testimony. In essence, she argues the trial judge, in proper exercise of his power as trier of fact, simply rejected Gerald’s testimony, rendering Gerald’s unilateral assertions insufficient to sustain his burden under the petition.

We note that, in cases decided prior to codification of section 401(a)(2), Illinois courts recognized that dissolutions should not be lightly granted under the Act in furtherance of an expressed public policy to preserve marriages. (See, e.g., Stanard v. Stanard (1969), 108 Ill. App. 2d 240, 247 N.E.2d 438; McGowan v. McGowan (1973), 15 Ill. App. 3d 913, 305 N.E.2d 261.) Adoption, in 1984, of section 401(a)(2) and its provision for dissolution based on irreconcilable differences, however, indicates our General Assembly recognized the policy no longer served when the State’s interest in preserving a marriage is not also shared by the parties themselves. It seems clear that included as a legitimate object of a marriage is the fulfillment of each party’s desire to continue in that legally sanctioned union, evidenced by the absence of differences so serious as to undermine the marriage relationship. The critical inquiry here, given satisfaction of the other requirements of section 401(a)(2), is whether that section permits a finding of irreconcilable differences where only one of the parties desires to maintain the union.

We must conclude that it does. Where evidence shows one spouse clearly desires to no longer continue to be married to the other, an irreconcilable difference necessarily arises between them causing an irretrievable breakdown of the marriage. Indeed, if a greater difference can exist within the context of a marriage relationship than one between spouses where one refuses to continue as the spouse of the other, we are at pains to conceive of it. As observed by Justice Robertson of the supreme court of Mississippi:

“That one spouse out of blindness, obstinance or nostalgia refuses to recognize it hardly means that a marriage may not in fact *** be irretrievably broken. As a matter of common sense, there can be irreconcilable differences within a marriage even when one spouse refuses to accept or recognize that fact.” (Gallaspy v. Gallaspy (Miss. 1984), 459 So. 2d 283, 287 (Robertson, J., dissenting).)

We believe a contrary interpretation of section 401(a)(2) would be inconsistent with the intent to provide a no-fault provision for the dissolution of marriages. We therefore determine that evidence may establish, as in other cases where irreconcilable differences are alleged, the existence of such a basis to support the dissolution of a marriage under section 401(a)(2) where even one spouse does not desire to continue to be married to the other. See Gallaspy v. Gallaspy (Miss. 1984), 459 So. 2d 283, 287 (Robertson, J., dissenting).

The testimony in the instant case was sufficient to establish an irreconcilable difference to support dissolution. Specifically, Gerald testified that he has no intention of returning to Olivia and holds no affection for her. Olivia’s testimony that Gerald hates her and no longer desires to be married to her despite her continued love for him corroborates that sentiment. We need look no further to find the requirement of an irreconcilable difference satisfied and thus conclude the denial of dissolution was against the manifest weight of the evidence.

The record otherwise indicates the other requirements of section 401(a)(2) are satisfied. The parties have lived separate and apart for more than two years, and both parties testified that Gerald refuses to seek further counselling. We therefore reverse the judgment denying Gerald a dissolution of marriage based upon irreconcilable differences and, upon remand, in the same manner as in Bates, direct that an order be entered accordingly.

Last, we address Gerald’s argument that his motion for change of venue based on the prejudice of the trial judge should have been granted. Although the original motion raised numerous alleged examples of bias, Gerald focuses here upon the following comments made by the trial judge regarding Gerald’s refusal to pay Olivia’s credit card debt, the subject of a separate action:

“Counsel, I want both of you to know there are a series of *** bills that Mr. Smoller has paid *** and *** that he has been paying over a period of years. I am not going to tolerate it. He is a man. He is living in a world of men. He has a wife and two children, and I expect him to act as a man. I don’t have to enter orders. I expect you to act as a man sir. Do you understand it?”

Generally, a motion for a change of venue based on the prejudice of the trial judge is untimely if brought after a hearing on the merits has started, or a ruling on a substantial issue in the case has been made, so as to preclude a litigant’s attempt to “judge shop” after forming an opinion that the judge may be unfavorably disposed toward that litigant’s cause. (Becker v. R.E. Cooper Corp. (1990), 193 Ill. App. 3d 459, 550 N.E.2d 236.) Gerald’s motion in the instant case is untimely to the extent that it was made subsequent to the denial of Gerald’s petition for dissolution. And, while courts have considered the issue despite the untimeliness of the motion where the matter or prejudice is raised at the earliest practical moment after its discovery (see In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 463 N.E.2d 719), we do not find the circumstances here permit application of that exception. Gerald’s motion cites various examples of alleged prejudice, including an allegation of bias based on the denial of Gerald’s petition, which occurred prior to the comments noted above. However, observing that those comments are, at least, suggestive of some degree of bias and that assignment of the matter to a different judge may preclude the issue from again having to be considered, we conclude a change of venue should be allowed pursuant to our power under Supreme Court Rule 366.134 Ill. 2d R. 366.

For the above reasons, we reverse the denial of dissolution and direct that an order be entered granting Gerald’s petition on the basis of irreconcilable differences and remand for further proceedings in light of that order. Although we affirm the denial of Gerald’s motion for a change of venue, we direct that, on remand, the remaining issues are to be resolved before a different trial judge.

Reversed in part, affirmed in part, and remanded.

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


author: JUSTICE BUCKLEY

text:
    LESTER GLASPER, Plaintiff-Appellant, v. BOARD OF REVIEW, Department of Employment Security, et al., Defendants-Appellees.
    First District (1st Division)
    No. 1-90-1641
    Opinion filed August 12, 1991.

      Lester Glasper, of Chicago, appellant pro se.

    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Eve Moran, Assistant Attorney General, of Chicago, of counsel), for appellee Board of Review, Department of Employment Security.
    No brief filed for other appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff was discharged from his employment at the Atlantic Corporation for violation of a company work rule that required an employee, who exhibited behavior characteristic of use of alcohol while on the job, to take a blood test at the company clinic. The Board of Review, Illinois Department of Employment Security (Board), denied plaintiff unemployment benefits because of his work-related misconduct in refusing to obey a reasonable work rule. (Ill. Rev. Stat. 1989, ch. 48, par. 432(A).) On administrative review the circuit court confirmed the Board’s decision. On appeal, the pro se plaintiff argues that the evidence did not support the conclusion that he wilfully violated the work rule.

Plaintiff testified at the administrative hearing that he was a vehicle driver for the Atlantic Corporation, where he had been employed for 18 years. On March 1, 1989, plaintiff was discharged after he was told that supervisory personnel saw him coming out of a liquor store while on his lunch break. Plaintiff claimed that he and a co-worker had merely entered the store so that the co-worker could buy cigars. Plaintiff denied that he had anything to drink while in the store. Shortly after his return to work plaintiff was called into his supervisor’s office, where he agreed to take a test to determine if there was any alcohol in his system. Plaintiff claimed that he believed that the test could be administered by his physician or his employer’s physician, and he opted to go to his own doctor for the test. Plaintiff said that the following day his physician sent him to have a blood sample taken.

The employer’s shipping supervisor Tom Prickard testified that about one hour after plaintiff returned to work from his lunch break he saw plaintiff in an office. Prickard had been summoned there after a report that plaintiff and a co-worker had been seen coming out of a liquor store. Prickard was to take both men to the clinic to get a test to disclose if any alcohol had been consumed by either man. Prickard said that at that time he saw that plaintiff’s eyes were glassy, and he noted that plaintiff’s speech was slurred. Prickard did not detect any odor of alcohol on plaintiff’s breath, nor could Prickard evaluate whether plaintiff was intoxicated. Plaintiff would only say that he had been drinking the previous evening. Prickard then asked plaintiff three times to submit to the test at the clinic. At first plaintiff agreed, then he became hesitant and finally plaintiff refused. Plaintiff was not told that there was any option allowing him to have his own doctor perform the test. Upon plaintiff’s refusal, the plant manager suspended plaintiff.

Prickard also testified that a company work rule negotiated in the union contract covered the situation. That rule provided:

“Any employee exhibiting behavior which leads management to suspect that he/she is under the influence of a mind altering substance will be sent immediately to the clinic for a drug/alcohol screening test. Positive results or refusal to take such test will result in immediate dismissal.”

While plaintiff claimed that he had never been given a copy of the rule, Prickard expressly denied that assertion. Prickard also said that the rule was posted on the company premises including a bulletin board in the employee lunch area.

Plaintiff does not now directly argue that he did not disobey the work rule. Rather his argument is directed to his claim that his refusal was not wilful or deliberate. Defendant’s subsequent development of that argument, however, basically is an explanation that his employer had no reason to suspect his use of alcohol merely because he was seen emerging from a liquor store during his lunch break. Plaintiff maintains that he did not exhibit signs of intoxication, pointing to Prickard’s failure to detect an alcohol odor on plaintiff. Plaintiff also explains other physical characteristics, claiming that his eyes were “glassy” because he had just blown dust off his vehicle and he had a speech problem. Plaintiff’s explanation does not detract from the conclusion that his condition would allow the employer to suspect that plaintiff had been drinking.

We view the evidence in the light most favorable to the decision of the administrative agency to evaluate whether that decision was against the manifest weight of the evidence. (Kennedy v. Edgar (1990), 199 Ill. App. 3d 138, 143-46, 556 N.E.2d 830.) The violation of a reasonable work rule, as here, is misconduct which disqualifies an employee from receiving unemployment compensation. (Wilson v. Department of Employment Security (1990), 196 Ill. App. 3d 711, 714, 554 N.E.2d 1006; Thomas v. Ward (1991), 211 Ill. App. 3d 624, 570 N.E.2d 477.) In the present case the record shows that plaintiff disobeyed the rule requiring a test at the company clinic. Plaintiffs action justified the denial of unemployment benefits.

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

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE HARTMAN

text:
    J.M. PROCESS SYSTEMS, INC., Plaintiff-Appellant, v. W.L. THOMPSON ELECTRIC COMPANY, INC., Defendant-Appellee.
    First District (2nd Division)
    No. 1-90-2923
    Opinion filed August 13, 1991.

      Sosin & Schuster, Ltd., of Alsip, for appellant.
    Bedrava, Lyman & Van Epps, of Oak Brook (William D. Lyman, of counsel), for appellee.

      This case has been decided after the resignation of Justice Michel Coccia. Justice Anthony Scariano has read the briefs, listened to the tape of the oral argument and participated in the decision of this case in place of Justice Michel Coccia.

   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, J.M. Process Systems, Inc. (Process), appeals from an order of the circuit court granting defendant W.L. Thompson Electric Company, Inc.’s (Thompson’s) motion for summary judgment in a construction contract controversy.

Process asks for review of whether (1) Process, as a subcontractor, was required by its contract with Thompson to provide waivers of liens as conditions prerequisite to payment; (2) section 22 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1987, ch. 82, par. 22) (Act) applied to subcontractors and material suppliers; (3) Thompson timely demanded a section 22 statement from Process; and (4) the circuit court erred in granting Thompson’s motion for reconsideration. For reasons which follow, we affirm.

The genesis of this dispute was the proposed construction of a ground storage reservoir in the Village of Westmont. In September 1987, the village issued “Specifications of Material and Labor” (specifications) in order to elicit written bids from general contractors. CBI Na-Con was awarded the general contract and served in that capacity during the construction project.

On October 23, 1987, Thompson, an Illinois corporation doing business in Schaumburg, successfully bid for the electrical subcontract contained in the specifications. As part of the subcontract awarded by CBI Na-Con, Thompson was to provide the “Instrumentation/Metering Systems and Supervisory Controls” required by the specifications. On October 19, 1987, pursuant to Thompson’s subcontract, Process, an Illinois corporation doing business in Alsip, proposed to furnish an “Aquatrol” system package which complied with the specifications. On February 26, 1988, Thompson, through its president, James D. Martin, sent Process a purchase order to obtain the equipment described in Process’ proposal for $38,508.

Process shipped the system on May 2, 1989. Its invoice, mailed on May 5, 1989, was received by Thompson, which made no payment. On September 29, 1989, Process notified the village that it had not yet been paid and threatened to discontinue service and its warranty. In response, Thompson advised Process that at the time it wrote the letter to the village, the control system Process had provided was not working and had not been corrected until October 6, 1989. Since the contract called for a “working system,” no payment could have been made prior to October 6, 1989. Thompson also informed Process that a check for 75% of the contract price was ready to be sent upon Thompson’s receipt of Process’ “partial waivers.” The check had been available since mid-July 1989, but had not been picked up and no waivers had been received. Thompson also offered to have 95% of the amount ready within 24 hours’ notice if the partial waiver was received. Because of the previous equipment failure, Thompson advised Process that 5% of the amount would be withheld until the system functioned, without failure, for 30 consecutive days; at that time it would be accepted “per the specifications.” Process responded that the waivers of liens were not a condition of sale and found the demand “insulting and outdated.” Process subsequently brought this action for breach of contract on January 10, 1990.

In lieu of filing an answer, Thompson moved for summary judgment on April 10, 1990, postulating that, under their contract, Process was required to provide Thompson with waivers of liens before Process could be paid. Since no waivers of liens had been received, Thompson asserted it was not obligated to pay. In addition, citing the Act, Thompson claimed that Process failed to submit an affidavit in compliance with section 22 of the Act (III. Rev. Stat. 1987, ch. 82, par. 22) and, as a result, that it could not now bring a breach of contract action against Thompson. Attached to the motion was the affidavit of James D. Martin, who swore that the waivers of liens were required by the contract specifications which Process had proposed to fulfill in its October 19 proposal. A copy of the specifications was also attached to the motion as was the correspondence between these parties.

James McDermott, Process’ company president, also filed an affidavit in which he denied that the waivers of liens language applied to the parties’ contract. Process’ response to Thompson’s motion for summary judgment raised arguments regarding whether the waivers of liens condition had been incorporated properly into the parties’ contract and whether section 22 of the Act pertained to it. A letter from CBI Na-Con to the village, which certified that all waivers of liens had been received, was also attached to Process’ response.

The circuit court granted Thompson’s motion for summary judgment without prejudice on June 28, 1990, and gave Process leave to file an amended complaint within 14 days. The circuit court appears to have ruled that the written contract between the parties required compliance with the waivers of liens clause as a condition precedent to payment. On July 12, 1990, Thompson successfully moved for reconsideration, to the effect that the June 28 order was modified to read “with prejudice.” The latter order was entered on September 10, 1990. By timely notice of appeal, Process challenges both orders.

I

Initially, Process argues that the contract did not condition payment upon tender of waivers of liens and that the provisions of the contract between the general contractor, CBI Na-Con and Thompson were not incorporated into Process’ subsequent subcontract with Thompson.

Process proposed to furnish the materials needed to meet the specifications explicitly set forth in sections 91 and 93 of the document. Thompson’s purchase order accepted the proposed equipment expressly “per specifications.” Specification sections 91 and 93 both refer to the general conditions of the contract, which begin with the following paragraphs:

“These Specifications, in general, call the Contractor’s attention to the various items required to complete the work. The Plans and Specifications are intended to include everything obviously requisite and necessary to the proper and entire finishing of each branch or trade of the work, whether each necessary item is mentioned herein or not.
All work herein specified or called for by the accompanying Plans must be executed in accordance with all applicable federal, state and local laws, ordinances, rules and regulations pertaining, but not limited, to building codes and safety of persons and property. The Contractor and Subcontractors shall pay all applicable sales, consumer, use and other similar taxes required by law for the purchase of equipment, materials and supplies for the work.
The clauses in these General Conditions, unless otherwise mentioned, are to apply to all parts of the work.”

Included among the general conditions was the following requirement, now at issue here:

“WAIVER OF LIENS:
The Contractor shall procure from each subcontractor and supplier of material or labor a waiver of any claim which they may have under the mechanics lien laws of the state in which the work is located, to insure the Owner immunity from mechanics liens on account of anything which is done by the Contractor or his subcontractors in carrying out the contract and any work orders for additions thereto, all as a condition of any payment by the Owner on account of the contract. Any payments made by the Owner without requiring compliance with this paragraph shall not be construed as a waiver by the Owner of the right to require compliance with this paragraph as a condition of later payments.
The Contractor shall furnish with his request for final payment a complete release of all liens arising out of this contract, or receipts in full in lieu thereof and an affidavit that the releases and receipts include all labor and material for which a lien could be filed.”

Process claims that these general conditions nowhere appear in its contract with Thompson. A contract must be read as a whole and all parts construed together. (White v. White (1978), 62 Ill. App. 3d 375, 378 N.E.2d 1255.) The specific adoption by the subcontract of the drawings and specifications provisions of the prime contract make those provisions as much a part of the subcontract as if they were expressly written in it; they cannot be ignored. (City of Lake View v. MacRitchie (1890), 134 Ill. 203, 25 N.E. 663; Intaglio Service Corp. v. J.L. Williams & Co. (1981), 95 Ill. App. 3d 708, 420 N.E.2d 634; Heifner v. Board of Education of Morris Community High School District No. 101 (1975), 32 Ill. App. 3d 83, 335 N.E.2d 600.) Accordingly, Process had the duty to learn of or know the terms of the general contract before it contracted to furnish the system called for in sections 91 and 93 of the general contract specifications. See Ridge view Construction Co. v. American National Bank & Trust Co. (1990), 205 Ill. App. 3d 1045, 1051, 563 N.E.2d 986.

Both sections 91 and 93 refer to the general conditions and make compliance with them mandatory. Section 93 also specifically states: “The intention of the Specifications and Plans are that each part of the system be completed as related to all other parts of the system with no omissions, even though each and every items [sic] may not be specifically mentioned. There shall be no deviations from these Specifications without pre-bid approval by the Engineers as required in the INSTRUCTIONS TO BIDDERS.” The opening paragraph of the general conditions makes plain that the clauses contained in it “unless otherwise mentioned, are to apply to all parts of the work.” The waivers of liens clause is made applicable to “each subcontractor and supplier of material or labor” (emphasis added), which applies to Process.

Process’ proposal cites sections 91 and 93 of the specifications and explicitly excludes only “conduit, wire, junction boxes, instrument tubing or piping or any other materials utilized by the installing Contractor^) to install any of the above listed items, and definitely does NOT include any labor whatsoever.” Thompson’s purchase order, however, sought one “control system per attached quotation guarantee working system per specifications.”

Nevertheless, Process insists that the general conditions are inapplicable to it. The evidence reveals that Process understood its obligation to comply with the general conditions. For example, on October 24, 1989, McDermott sent Martin a letter confirming that the maintenance manuals, mandated by the general conditions and equipment requirements, were sent to the engineers in compliance with that particular clause. Under the reading of the contract Process asserts here, no manuals would have been required to be sent if the general conditions did not pertain to Process.

Various clauses in the general conditions are cited by Process which, by their nature, are inapplicable to the specific job Process proposed to undertake on the project, which Process advances as evidence that the conditions do not apply to it. The specifications were written to cover the whole range of trades involved in a construction job of such wide magnitude; not all the conditions will be applicable to each and every trade utilized in the project.

The specific language in the waivers of liens clause makes itself applicable to “subcontractors and suppliers of material or labor.” Process supplied material pursuant to the specifications, and the language must be read to include Process. Process, having admittedly failed to provide the waivers according to the terms of the contract, authorized Thompson to withhold payment for the equipment.

II

Process next alleges that section 22 of the Act (Ill. Rev. Stat. 1987, ch. 82, par. 22) does not apply to a subcontractor’s demand upon a subsubcontractor. In its motion for summary judgment, Thompson raised section 22 as an alternative basis for the granting of the motion. In light of our affirmance under Part I of this opinion, the alternative statutory basis need not be addressed.

III

Process lastly contends that the circuit court erroneously granted Thompson’s motion to reconsider its order of June 28, asserting misapprehension of the facts in Malesa v. Royal Harbour Management Corp. (1989), 187 Ill. App. 3d 655, 543 N.E.2d 591.

At the hearing on the motion to reconsider, the circuit court indicated that it had granted the motion for summary judgment “without prejudice *** in the hopes of not only resolving it, but that the matter go forward and since nothing has transpired to this point [in the way of settlement], I am granting the motion for reconsideration without prejudice — with prejudice at this time.”

There was no error in modifying the order to read “with prejudice.” The Code of Civil Procedure provides a litigant with the opportunity “within 30 days after the entry of the judgment *** [to] file a motion for a rehearing, or a retrial, or modification of the judgment.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203.) It is apparent that the circuit court tried to bring the parties together in several efforts to end the litigation. The court, by granting the order without prejudice, also gave Process an avenue to seek redress if, after tendering the waivers of liens, Thompson still refused to honor its contractual obligation. At the motion for rehearing, it became obvious that Process refused to furnish the waiver and that it took issue with the court’s interpretation of the contract.

The purpose of the summary judgment procedure is not to try a question of fact, but to determine whether one exists. (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552; La Salle National Bank v. Illinois Housing Development Authority (1986), 148 Ill. App. 3d 158, 161, 498 N.E.2d 697; Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 423, 466 N.E.2d 1271.) A motion for summary judgment will be granted only where the pleadings, depositions, and admissions on file, together with the affidavits, if any, demonstrate that there is no genuine issue as to any triable, material fact. Ill. Rev. Stat. 1987, ch. 110, par. 2-1005(c).

The pleadings, exhibits, and affidavits submitted in the case sub judice clearly establish that Process was required to furnish waivers of liens as a condition of payment. In light of this fact, the circuit court did not err in granting Thompson’s motion for summary judgment. Accordingly, we affirm.

Affirmed.

SCARIANO, P.J., and DiVITO, J., concur.


author: JUSTICE RIZZI

text:
    SEEGERS GRAIN COMPANY, INC., Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION, Defendant-Appellee (Kansas City Millwright Company, Defendant).
    First District (3rd Division)
    No. 1-87-3574
    Opinion filed August 14, 1991.

      Robert A. Clifford & Associates, of Chicago (Robert A. Clifford, Keith A. Hebeisen, and Robert P. Sheridan, of counsel), for appellant.
    Gessler, Flynn, Laswell, Fleischmann, Hughes & Socol, Ltd., of Chicago (George W. Gessler and William P. Jones, of counsel), for appellee.

       Justice White participated and concurred in this opinion prior to his retirement.

   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Seegers Grain Company, Inc. (Seegers), brought an action against defendants United States Steel Corporation (U.S. Steel), Kansas City Millwright Company (KCM), and Design Consultants, Inc. (Design Inc.), to recover damages that it suffered when there was “a sudden and calamitous failure and collapse” of one of its steel grain storage tanks which destroyed the tank and caused “damage to the corn contained therein, other storage tanks, conveyor belts, trucks, fans and trees in the immediate vicinity.” Design Inc. was dismissed from the suit prior to trial, pursuant to a settlement agreement. U.S. Steel filed motions to strike and dismiss breach of implied warranty of merchantability and implied warranty of fitness counts in the seventh and eighth amended complaints, which were denied. At the close of the evidence at trial, the trial court granted U.S. Steel’s motion for a directed verdict on the product liability count. At the same time, the trial court ruled that as a matter of law U.S. Steel had no duty with respect to certain allegations in the negligence count, and struck those allegations. The case went to the jury on the negligence and breach of implied warranty counts against U.S. Steel and KCM.

The jury returned verdicts in favor of Seegers and against KCM on all three counts, and assessed Seegers’ recoverable damages in the amount of $2,225,000. The jury also returned verdicts finding U.S. Steel not guilty on all three counts. Seegers appeals from the judgment on the verdicts in favor of U.S. Steel. No other appeals or cross-appeals have been taken.

On appeal Seegers contends that (1) the trial court erred in directing a verdict in favor of U.S. Steel on the product liability count; (2) the trial court erred in denying its motion for a directed verdict on the breach of implied warranty counts; and (3) the trial court erred in ruling that as a matter of law U.S. Steel had no duty with respect to certain allegations in the negligence count, and in striking those allegations. We reverse the directed verdict in favor of U.S. Steel on the product liability count; vacate the verdicts and judgment on the breach of implied warranty counts and strike and dismiss those counts as a matter of law; and reverse the trial court’s rulings and vacate the verdict and judgment on the negligence count. We remand for a new trial on the product liability and negligence counts.

Seegers owned and operated a large public grain conveyor and grain storage business in Crystal Lake, McHenry County, Illinois, serving Illinois farmers since 1962. It had several relatively small grain storage tanks. In the spring of 1976, however, it decided to build a huge grain storage tank with a one-million-bushel grain capacity. After taking bids for the project, in May 1976 Seegers signed a contract with KCM to construct the storage tank. KCM was a construction company that specialized in field-erected, welded steel storage tanks. It did not, however, manufacture parts or accessories.

KCM’s design division manager, Myron Leveridge, designed and made all of the design decisions for the tank. The design and construction of the foundation for the tank, however, were not included in KCM’s contract with Seegers, and Leveridge recommended that Seegers retain Design Inc. to design the foundation. Subsequently, Seegers hired Design Inc. to design the foundation, but Seegers undertook the construction of the foundation. Seegers acted as the general contractor for construction of the foundation.

Leveridge designed a circular tank with a roof that was shaped like a cone with a 12-foot flat top that was circular. The tank had a base diameter of 159 feet and 2 inches, and the circular wall was 48 feet high. The tank measured 86 feet and 37/s inches from the top at the center of the roof to the bottom of the tank.

The circular wall was made by flexing and welding together eight-foot-high steel plates that were 20 and 30 feet in lineal length. There were six rows of steel plates that were welded together from top to bottom, accounting for the 48-foot-high circular wall. The thickness of the steel plates depended on which of the six rows of the steel plates were used; the thicker steel plates were used on the lower rows. The bottom row was five-eighths inch thick. The thickness of each succeeding higher row was as follows: nine-sixteenths inch; one-half inch; seven-sixteenths inch; three-eighths inch; and five-sixteenths inch. Two access doors were provided in the bottom row of the steel plates. One access door was three feet by three feet six inches, and the other access door was seven feet by eight feet.

The conical roof of the tank was made by welding together 12-gauge sheet steel. The roofing sheets were also welded to steel roof joists that were placed radially around the tank. The roof joists were supported by the circular wall of the tank and a flat 12-foot compression ring at the top of the roof in the center of the tank.

The tank was supported by a periphery foundation and the floor of the tank, which was an eight-inch concrete slab. The foundation and slab were designed by Design Inc.

After he designed the tank, but prior to its construction, Leveridge contacted the Kansas City district sales office for U.S. Steel and ordered the steel plates. He spoke to James Hickman, U.S. Steel’s inside salesman at the sales office. Leveridge ordered 102 steel plates which were designated as A283 C steel plates. A U.S. Steel handbook, entitled Handbook of USS Plate Steels (Handbook), provides:

Type of Steel USS Designation Characteristics Applications
ASTM A283 Grades A,B,C & D. Low and intermediate tensile strength, form-able. Storage tank construction, above and below ground.

The Handbook also provides:

“USS ASTMA283
General Description
Low and intermediate tensile strength carbon steel plates of structural quality.
Application
Popular applications requiring some forming because of its low strength. It is often referred to as ‘tank steel’ since it is widely used for fabrication of both above ground and below ground storage tanks.”

The ASTM designation in the Handbook refers to American Society for Testing and Materials. A283 is a standard ASTM designation which is used industry-wide.

U.S. Steel’s written order acknowledgment for the purchase of the A283 C steel plates by Leveridge states that they were to be used to construct a field-erected tank for Seegers at the designated jobsite in Crystal Lake, Illinois. The order acknowledgement also states that the plates were to be in six sets of different thickness: five-eighths inch; nine-sixteenths inch; one-half inch; seven-sixteenths inch; three-eighths inch; and five-sixteenths inch.

In addition, the order acknowledgement states that each of the six sets consisted of a total of 17 plates, 16 plates that were 30 feet long and one plate that was 20 feet long. The order acknowledgment also provides that the plates were to be shipped in sets, in sequential order with the thickest, or heaviest, set to be shipped first. Specifically, the order acknowledgement states: “Items must ship in sequence. Do not mix thickness. Heaviest plates must ship first.” Leveridge testified that he told U.S. Steel representatives that KCM built these types of tanks in rings going from the bottom up, thick to thin, and that is why the plates had to be shipped in sequence.

The construction of the tank was completed on October 23, 1976. It was filled with grain for the first time on November 15, 1976. After the tank was in service, cracks in the foundation occurred which were immediately repaired. Also, a crack was found at the top of the northern corner of the small access door in April 1977. It was immediately repaired by KCM. A bulge also developed on each side of the large access door. This problem was immediately repaired in September 1977.

On January 10, 1978, the tank was filled with approximately one million bushels of corn. At about 12:30 a.m., the occurrence in question took place. The record demonstrates that there was a violent sudden implosion or bursting of the tank, causing destruction of the tank, strewing the approximately one million bushels of corn in the snow and substantially diminishing its value, damaging other nearby tanks, damaging a nearby truck and damaging other property from the sudden and dangerous occurrence. It was “like a rifle shot” and “a shock wave.” With respect to damage to other property, U.S. Steel acknowledges in its brief that “the damages to personal property of Seegers other than the tank” were $94,302.54. (Emphasis added.)

On January 8, 1978, the temperature was 35° Fahrenheit. Then there was a sharp drop in temperature. At the time of the occurrence on January 10, 1978, the temperature had dropped to minus 10° Fahrenheit.

A chemical engineer and metallurgist, Nathan A. Tiner, testified that A283 C steel was not fit and not suitable for the purpose of a grain storage tank where temperatures could be at or below zero degrees Fahrenheit. He also testified that the unfitness and unsuitability of the A283 C steel was the primary cause of the occurrence.

Tiner testified that the A283 C steel was unreasonably dangerous for the erection of the Seegers tank at the time the steel plates left the control of U.S. Steel because of the weather conditions where the tank was located. He stated that the A283 C steel plates were unreasonably dangerous at the time of sale by U.S. Steel because the steel was of a metallurgical composition that when exposed to zero degrees Fahrenheit its fracture toughness was reduced, and because it becomes brittle and makes it difficult to distribute the stresses. He testified that the unreasonably dangerous condition of the steel plates was a cause of the occurrence.

Tiner also testified as follows:

“Q. Finally, do you have an opinion based upon a reasonable degree of certainty in your area of specialty as to whether or not the steel was unreasonably dangerous because it was sold without warnings that it was susceptible to brittle fracture when used for its foreseeable and intended purposes, namely in service areas of zero F. or below?
A. Yes
Q. What is your opinion?
A. My opinion is the common designer [i.e., in this case, KCM or Leveridge] there doesn’t keep a metallurgist on his staff. He doesn’t know, just that steel is not steel at lower temperatures there. Some people who have metallurgical knowledge should tell him that. And he usually relies upon the seller, who is competent on the application of these. And he apparently either didn’t get it, didn’t understand. And [they] didn’t make very clear to him what the problem is.
Q. Is that a cause of the collapse in question?
A. That is the primary cause of the collapse.”

A civil and structural engineer, Edward Earle Walters, testified that a representation that A283 C steel is popular for tank steel “would be totally erroneous.” He stated that “it is a brittle steel and it is definitely not the type of steel that should be used for a semifluid material,” such as grain. He also testified that if the temperature reached anywhere from 6 to 10 below zero degrees Fahrenheit it puts A283 C steel “into the brittle fracture mode of failure,” which means that it will stress fracture. Walters testified that the A283 C steel was unreasonable for use in a grain tank in Crystal Lake, Illinois, because of its metallurgical characteristics. He testified that it was subject to cracking and failure in the structure for which it was used.

In addition, Walters testified that the cause of the occurrence was an overstressing of the tank wall. He testified that A283 C steel is a steel that “certainly should not be used in this type of structure,” because it is subject to brittle failure and it will not redistribute stress properly. He testified that “it fails suddenly.”

Walters also testified that the cause of the occurrence was the overstressing of the A283 C steel that was used at the top and bottom corners of the big access door. He testified, however, that the repairs that were done to the small and large access doors did not cause or contribute to the cause of the occurrence. He also testified that the occurrence was not caused by any differential vertical movement of the foundation.

In addition, Walters testified that those characteristics and properties of the A283 C steel that were used for the Seegers tank were present at the time the steel left the control of U.S. Steel. He also testified that U.S. Steel should have known the physical characteristics of this steel when it was produced and sold. Moreover, he testified that “the character of the steel” was a cause of the occurrence.

Walters also testified that the A283 C steel plates were sold by U.S. Steel for the Seegers tank without any warning to the user that it was a dangerous material to use and that the A283 C steel plates were therefore unreasonably dangerous for use. He also testified that “failure to warn of the condition of the steel was the cause of the failure of the tank.”

We initially address the issue of whether the trial court properly directed a verdict in favor of U.S. Steel on the product liability count. U.S. Steel first argues that it is not liable under product liability law because KCM substantially modified the steel plates by welding them together and fabricating the tank. U.S. Steel relies upon section 402A of the Restatement (Second) of Torts (1965), which provides:

“One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.”

The limiting factor in section 402A of the Restatement (Second) of Torts, upon which U.S. Steel relies, is that there is no liability if the injury arises by reason of a change in the product after it is sold.

Here, the steel plates were in an unreasonably dangerous condition if they failed to perform in a manner reasonably to be expected in light of their nature and intended function. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 211, 384 N.E.2d 368, 372; Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 342, 247 N.E.2d 401, 403.) At the time that the steel plates were sold by U.S. Steel, their nature and intended function was to be welded together to fabricate a field-erected grain storage tank located in a cold weather climate. Plainly, the nature and intended function of the steel plates was not changed or modified by KCM when it welded them together to fabricate the Seegers tank.

It is therefore clear that there was no change or modification in the steel plates which would bar U.S. Steel’s exposure to product liability for manufacturing and selling an unreasonably dangerous product. The limiting factor in section 402A of the Restatement (Second) of Torts is simply not applicable here. U.S. Steel’s argument is without merit.

U.S. Steel next argues that “the law does not recognize an action for strict liability under section 402A of the Restatement (2d) of Torts” in this case because “the evidence established that the collapse was not a sudden and calamitous event.” U.S. Steel argues that if the occurrence was not a sudden and calamitous event then this case is solely for economic loss and there cannot be recovery for solely economic loss in a tort action. Vaughn v. General Motors Corp. (1984), 102 Ill. 2d 431, 434-36, 466 N.E.2d 195, 196-97; Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 81-83, 435 N.E.2d 443, 448-49.

U.S. Steel’s argument that the occurrence was not a sudden and calamitous event is premised on the fact that prior to the occurrence there had been cracks in the foundation and problems with both access doors. The foundation cracks, however, had been repaired long before the occurrence and there was no evidence that the foundation was a cause of the occurrence. Moreover, the record clearly shows that the foundation was not a cause of the occurrence. With respect to the access doors, a crack was found on the top of the northern corner of the small access door in April 1977. It was immediately repaired. Also, a bulge developed on each side of the large access door. This was immediately repaired in September 1977. U.S. Steel concludes that because of these prior problems and repairs, the occurrence on January 10, 1978, was not sudden and calamitous. The conclusion is a non sequitur.

The fact that there had been repairs to the foundation and access doors, at least three months prior to the time of the occurrence, does not mean that the occurrence was not a sudden and calamitous event. Indeed, the occurrence was described as being “like a rifle shot” and “a shock wave,” and there was, at least, some damage to other tanks and a truck that was nearby. There is also testimony that A283 C steel “fails suddenly.” Moreover, there is absolutely no evidence that the occurrence was anything but a sudden and violent implosion or bursting of the tank. Plainly, the corn which was strewn on the snow did not leak out of the tank over a period of time. U.S. Steel’s argument that the occurrence was not a sudden and calamitous event is devoid of merit.

U.S. Steel next contends that the tank was an improvement to real estate. U.S. Steel then argues that even if its steel plates were unreasonably dangerous, product liability law is not applicable to an action resulting from a condition of the unreasonably dangerous steel plates because they were part of the real estate. We disagree.

Whether a manufacturer is subject to product liability is determined by what the manufacturer sold at the time it left the manufacturer’s control. Here, at the time the steel plates were sold by U.S. Steel, they were precisely measured products to be delivered in sets and in sequential order, depending on their thickness. Thus, since the steel plates were a product at the time they left the control of U.S. Steel, it is subject to product liability if the steel plates failed to perform in a manner reasonably to be expected in light of their nature and intended function (Hunt v. Blasius (1978), 74 Ill. 2d 203, 211, 384 N.E.2d 368, 372; Dunham v. Vaughan & Bushnell Manufacturing Co. (1969), 42 Ill. 2d 339, 342, 247 N.E.2d 401, 403), or U.S. Steel failed to warn of a danger or failed to instruct on the proper use of the steel plates (Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 676, 299 N.E.2d 108, 123). This conclusion will effectuate the policy basis for imposing strict liability in tort law. Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 451, 546 N.E.2d 580, 591.

In Board of Education, the court held:

“In regard to the strict products liability count, the trial court ruled that the ACMs [asbestos containing materials] were components and indivisible parts of the building and as such were not a product for strict liability purposes. An item will be considered a product for purposes of the cause of action if to do so will effectuate the policy basis for imposing strict liability in tort. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 204.) In Hammond, we held that raw asbestos was a product for the purposes of a strict liability action. (97 Ill. 2d at 205.) The ACMs involved in this case include acoustic plaster, acoustic tile, boiler insulation, pipe insulation and spray-on fireproofing. The fact that these are used in construetion and have been installed in a building does not detract from their nature as products separate from the actual structure. We cannot accept the defendant’s argument that these ACMs have become permanent fixtures upon real property, indistinguishable from the buildings themselves, and to do so would defeat the underlying policy reasons for imposing [strict liability in tort].” 131 Ill. 2d at 451, 546 N.E.2d at 591.

Likewise, in the present case U.S. Steel’s argument would defeat the underlying policy reasons for imposing strict liability in tort. If the steel plates which U.S. Steel made, sold and delivered proved to be unreasonably dangerous for their intended use, U.S. Steel cannot be shielded from product liability by claiming that its product was real estate. U.S. Steel’s argument is untenable.

Next, we address the breach of implied warranty of merchantability and implied warranty of fitness for a particular purpose counts, which were brought pursuant to the Uniform Commercial Code (UCC). (Ill. Rev. Stat. 1989, ch. 26, pars. 2 — 314, 2 — 315.) Seegers argues that the trial court erred in denying its motion for a directed verdict on the breach of implied warranty counts. U.S. Steel filed motions to strike and dismiss the implied warranty counts in the seventh and eighth amended complaints, which were denied. U.S. Steel argues on appeal, in part, that as a matter of law “no liability attached to U.S. Steel on warranty theories.”

By the time the seventh and eighth amended complaints were filed it was plain from the pleadings that this is a case to recover non-economic loss in relation to a product, and no personal injury is involved. Thus, as a matter of law there is no action for breach of implied warranty under the UCC. The breach of implied warranty counts under the UCC should have been dismissed by the trial court as a matter of law, and they should not have been submitted to the jury.

Ever since the supreme court decided Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill. 2d 69, 88, 435 N.E.2d 443, 451, it has been established law in Illinois that recovery for solely economic loss in relation to a product must be had within the framework of contract law. No action for solely economic loss in relation to a product may be had on theories of tort law, i.e., negligence or product liability. 2314 Lincoln Park West Condominium Association v. Mann, Gin, Ebel & Frazier, Ltd. (1990), 136 Ill. 2d 302, 307-09, 555 N.E.2d 346, 348-49; Board of Education v. A, C & S, Inc. (1989), 131 Ill. 2d 428, 439-40, 546 N.E.2d 580, 585; Szajna v. General Motors Corp. (1986), 115 Ill. 2d 294, 303, 304, 503 N.E.2d 760, 764; Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 387-88, 493 N.E.2d 1022, 1025-26; Vaughn v. General Motors Corp. (1984), 102 Ill. 2d 431, 436, 466 N.E.2d 195, 196-97.

Economic loss in relation to a product has been defined as damages for inadequate value, cost of repair and replacement of the defective product, or consequential loss of its profits, provided there is no claim for personal injury or damage to other property. In actions to recover for solely economic loss, contract law and the UCC afford the parties their remedies and defenses. On the other hand, when a product is sold in a defective condition that is unreasonably dangerous to the user or consumer or to his property, resulting in personal injury or damage to property from a sudden and dangerous occurrence, the loss is noneconomic in relation to the product. In such instances tort law affords the parties their remedies and defenses. Board of Education v. A, C & S, Inc., 131 Ill. 2d at 440, 546 N.E.2d at 590; Moorman Manufacturing Co. v. National Tank Co., 91 Ill. 2d at 82, 435 N.E.2d at 449.

A noneconomic loss case that bears examination here is Berry v. G.D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550, which was decided eight years before Moorman defined and distinguished economic loss and noneconomic loss actions. In Berry, the court allowed personal injury cases to be maintained as breach of implied warranty actions under the UCC without privity between the plaintiff and a remote manufacturer. (56 Ill. 2d at 558, 309 N.E.2d at 556.) The decision was made, however, for public policy reasons. (See Szajna v. General Motors Corp. (1986), 115 Ill. 2d 294, 303-304, 503 N.E.2d 760, 763.) Thus, as a public policy exception, where personal injury is involved a breach of implied warranty action under the UCC may be maintained for noneconomic loss in relation to a product.

It follows from a review of Moorman and its progeny, and Berry, that where no personal injury is involved, actions to recover noneconomic loss in relation to a product must be had within the framework of tort law, and no contract or implied warranty action under the UCC will lie. In addition, just as the issue of whether an action for res ipsa loquitur exists is a question of law to be decided by the court (Imig v. Beck (1986), 115 Ill. 2d 18, 27, 503 N.E.2d 324, 329), the issue of whether an action is one for economic or noneco-nomic loss is a question of law to be decided by the court. Having courts decide these issues as a matter of law allows courts to exercise their responsibility for a sound and uniform body of precedent without sacrifice to the just remedies and defenses of the parties.

Where, as here, a case involves a sudden violent implosion or bursting of a huge grain storage tank, causing destruction of the tank, strewing approximately one million bushels of corn in the snow and substantially damaging its value, damaging other nearby tanks, damaging a nearby truck and damaging other property from the sudden and dangerous occurrence, the only conclusion that can be reached is that as a matter of law the case involves noneconomic loss in relation to the product that was a cause of the occurrence.

The breach of implied warranty counts in this case should therefore have been stricken and dismissed as a matter of law because the case involves noneconomic loss in relation to the product, and no personal injury is involved. Tort law, and not contract law or implied warranties under the UCC, affords Seegers its remedy and U.S. Steel its defenses.

For the reasons we have stated, the trial court erred in denying U.S. Steel’s motions to strike and dismiss the breach of implied warranty counts. As a matter of law, the case should not have gone to the jury on the breach of implied warranty counts. The verdicts and judgment on the breach of implied warranty counts must therefore be vacated, and the breach of implied warranty counts stricken and dismissed as a matter of law.

We next address the trial court’s rulings involving the negligence count. The trial court ruled that as a matter of law U.S. Steel had no duty to warn Seegers of the possible “catastrophic fracture of its tank” because the steel was brittle, “when defendant knew or should have known of other such failure of similar tanks constructed utilizing A283C steel prior to January 10, 1978, including the one at Kokomo, Indiana.” The trial court also ruled that as a matter of law U.S. Steel had no duty to inform Seegers of the results of “impact testing conducted upon the steel from the Kokomo, Indiana tank.” As part of its order, the trial court struck those two allegations from the eighth amended complaint.

The Kokomo, Indiana, occurrence to which the eighth amended complaint makes reference involved the sudden violent implosion or bursting of a field-erected grain storage tank. Kokomo, Indiana, is located less than 175 miles from where the occurrence involving the Seegers tank took place.

The Kokomo tank was constructed for and owned by the Kokomo Grain Company. The construction was done at the jobsite by KCM, using the same kind of U.S. Steel plates that were used for the Seegers tank. The steel plates for both tanks were purchased from the same U.S. Steel office.

The Kokomo tank was designed and constructed in the same manner and configuration as the Seegers tank although the Kokomo tank had a 750,000-bushel capacity, rather than the one-million-bushel capacity of the Seegers tank. Both tanks had two access doors, a conical roof with radial joists, a flat compression ring at the top of the conical roof and a concrete foundation.

The construction of the Kokomo tank was completed in the fall of 1976 and filled for the first time on November 10, 1976. On November 15, 1976, at about 4 a.m., while the tank was filled with corn, there was a violent implosion or bursting of the tank, destroying the tank. The temperature at the time was 26° Fahrenheit. Shortly before the occurrence the temperature had dropped 12 degrees.

A civil and structural engineer, Edward E. Walters, was hired by KCM to investigate the cause of the Kokomo tank occurrence. Later, he also investigated the cause of the Seegers tank occurrence. Also, U.S. Steel conducted its own investigation of both occurrences. The investigations included impact testing of samples of the steel plates that were used in the construction of the tanks.

Walters testified that the failure modes, i.e., cause of the failure, in the Kokomo tank and the Seegers tank were identical. He testified that the reason both tanks collapsed was because of an overstressing of the tank walls. He also testified that A283 C steel is a steel that “certainly should not be used in this type of structure” because it is subject to brittle failure and it will not redistribute stress properly. He testified that “it fails suddenly.”

Walters also testified that a representation that A283 C steel is popular for tank steel “would be totally erroneous.” He said “it is a brittle steel and it is definitely not the type of steel that should be used for a semifluid material,” such as grain. He testified that cold temperatures put A283 C steel “into the brittle fracture mode of failure.” Walters also stated that A283 C steel was not the right type of steel to be used for fabricating the Seegers tank or the Kokomo tank because “of its brittle characteristics and its physical properties.” In addition, he stated that U.S. Steel should have known of the detrimental physical characteristics of A283 C steel when it was produced and sold by U.S. Steel.

According to Walters, a sudden decrease in temperature may have triggered the brittle fractures. He testified that when the temperature drops, the steel wall of the tank contracts and pushes against the grain, which is a semifluid material. The force required to push against the grain is higher than the static pressure of the grain without temperature change, thus increasing the stress in the wall when there is a decrease in temperature. Moreover, Walters testified that “the character of the steel” was not the only cause of the failure of the tanks. He testified that the “failure to warn of the condition of the steel” was also a “cause of the failure” of the tanks. The testimony of a chemical engineer and metallurgist, Nathan A. Tiner, comports with the testimony of Walters.

The facts which we have discussed bear heavily in determining whether the trial court’s rulings on the negligence count were proper. When these and other facts are compared with the applicable law, it is clear that the trial court erred.

Necessary to any recovery based on the theory of common law negligence is the existence of a duty or an obligation requiring one to conform to a certain standard of conduct for the protection of another against an unreasonable risk. Whether under the facts of a case such a relationship exists between two parties as to require that a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court. (Barnes v. Washington (1973), 56 Ill. 2d 22, 26, 305 N.E.2d 535, 538.) Once such a relationship exists, however, a duty to warn arises where there is unequal knowledge, actual or constructive, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur if no warning is given. Kirby v. General Paving Co. (1967), 86 Ill. App. 2d 453, 457, 229 N.E.2d 777, 779.

Here, we are not dealing with a case where there was an over-the-counter sale of a generic product for use by an unknown consumer. Rather, this case involves a $111,390 sale of 282 tons of precisely measured steel plates, and U.S. Steel’s own written order acknowledgment establishes that U.S. Steel knew that the steel plates were to be used to build a field-erected grain storage tank specifically for Seegers at a specified location. Under the circumstances, it is plain that a relationship existed between U.S. Steel and Seegers so that a legal obligation was imposed upon U.S. Steel to conform to a standard of conduct for the protection of Seegers against an unreasonable risk of the steel plates.

In addition, the record sufficiently establishes that after the Ko-komo tank occurrence U.S. Steel was on notice that its steel plates should not be used for similarly constructed tanks in cold climates. Surely, other accidents occurring under similar conditions are not only admissible to prove the probability that a defendant had notice of the existence of a dangerous condition (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §401.15, at 160 (5th ed. 1990)), but also to establish that coupled with that notice and knowledge the defendant had a duty to properly warn of that notice and knowledge. See Rittenhouse v. Tabor Grain Co. (1990), 203 Ill. App. 3d 639, 649, 561 N.E.2d 264, 271 (“evidence of the earlier collapse of the sister grain bin is relevant to explain the grain storage practices of both” defendants).

Moreover, the record sufficiently establishes that although U.S. Steel had knowledge of the Kokomo tank occurrence and the demonstrated danger inherent in using its steel plates to construct field-erected grain storage tanks in cold climates, Seegers had no such knowledge. Thus, it is plain that there was unequal knowledge between U.S. Steel and Seegers as to the danger demonstrated by the Kokomo occurrence. Possessed of such unequal knowledge, U.S. Steel knew or should have known of the danger awaiting Seegers unless U.S. Steel warned Seegers.

The thrust of U.S. Steel’s argument is that because KCM had the same knowledge as U.S. Steel, it had no duty to warn Seegers of the danger inherent in its steel plates as demonstrated by the Kokomo occurrence. U.S. Steel’s argument is unavailing because under the circumstances of this case, it was U.S. Steel’s own relationship with Seegers that imposed a legal obligation to conform to a standard of conduct for the protection of Seegers against an unreasonable risk of the steel plates. The fact that KCM may also have had such a relationship and legal obligation does not nullify U.S. Steel’s legal obligation to Seegers.

It follows that the trial court erred in ruling that as a matter of law U.S. Steel had no duty to warn Seegers of the possible “catastrophic fracture of its tank” because the steel was too brittle, “when defendant knew or should have known of other such failure of similar tanks constructed utilizing A283C steel prior to January 10, 1978, including the one at Kokomo, Indiana.” Also, the trial court erred in ruling as a matter of law that U.S. Steel had no duty to inform Seegers of the results of “impact testing conducted upon the steel from the Kokomo, Indiana tank.” The trial court also erred in striking those allegations from the negligence count. It is manifest that the trial court’s rulings denied Seegers a fair trial on the negligence count. Seegers is therefore entitled to a new trial on the negligence count.

Accordingly, the directed verdict in favor of U.S. Steel on the product liability count is reversed; the verdicts and judgment on the breach of implied warranty counts are vacated, and the breach of implied warranty counts are stricken and dismissed as a matter of law; and the trial court’s rulings on the negligence count are reversed and the verdict and judgment on the negligence count are vacated. The case is remanded for a new trial on the product liability and negligence counts.

Reversed and remanded.

CERDA, P.J., and WHITE, J., concur.