author: JUSTICE McLAREN

text:
    THE DE KALB BANK, Plaintiff-Appellee and Cross-Appellant, v. ROBERT A. PURDY et al., Defendants-Appellants and Cross-Appellees.
    Second District
    No. 2—89—1321
    Opinion filed November 6, 1990.
    Rehearing denied December 10, 1990.

      Richard L. Horwitz and Amy S. Wood, both of Drendel, Schanlaber, Horwitz, Tatnall & McCracken, of Aurora (David J. Chroust, of counsel), for appellants Robert A. Purdy and Mary Lois Purdy.
    Racine & Racine, of Sycamore (Norman H. Racine, of counsel), for appellant Farmers and Traders Bank of Shabbona.
    Boyle, Cordes & Brown, of De Kalb, and James F. Gebhart and James M. Breen, both of Chapman & Cutler, of Chicago (Charles G. Brown, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant The Farmers and Traders State Bank of Shabbona (Shabbona) appeals from an order entered on April 4, 1985, granting partial summary judgment to plaintiff, The De Kalb Bank (De Kalb), and from a June 19, 1986, order denying the motion to vacate the April 4 order. Shabbona also appeals from a judgment order entered on December 12, 1989, against Shabbona and in favor of De Kalb for $62,743. Defendants Robert and Mary Lois Purdy (Purdys) also appeal from the April 4, 1985, order and the June 19, 1986, order. The Purdys also appeal from an order entered on July 20, 1989, striking their demand for a jury trial. Lastly, the Purdys appeal from the December Í2, 1989, judgment order against them and in favor of De Kalb in the sum of $307,464.

Plaintiff, De Kalb, cross-appeals from the portion of the December 12, 1989, order denying its request for a judgment against the Purdys for attorney fees. De Kalb also cross-appeals from the portion of the December 12 order granting judgment in favor of Shabbona on counts IY and V of De Kalb’s second amended complaint.

Robert Purdy is a physician and, along with his wife, is also engaged in the business of farming. De Kalb was the principal source of financing for the Purdys’ farming operations. In late 1982 and early 1983 the Purdys and De Kalb engaged in substantial negotiations concerning several loans that the Purdys had outstanding with De Kalb. On March 15, 1983, the parties entered into a new loan agreement. Pursuant to this agreement, the Purdys, inter alia, provided De Kalb with mortgages on approximately 1,840 acres of farmland as additional collateral for past and future loans. De Kalb agreed to provide up to $3.5 million to finance the Purdys’ 1983 farming operations. This credit limit was inclusive of the loans outstanding at the time.

In September 1983, Robert Purdy ordered 324 head of cattle from Saunders, Bucher, and Barber Livestock (Saunders). As had been the practice of the parties, the terms of the sale included a provision that title to the cattle remained in Saunders until the check tendered by the Purdys in payment was honored. The cattle were shipped on September 14, 1983, and arrived at the Purdy farm in four truckloads. The first three trucks arrived on September 15, and the fourth truck arrived during the early morning hours of September 16.

On September 16, Robert Purdy wrote a check drawn on De Kalb in the amount of $105,494.02 in payment for the cattle. As was the practice, Robert also executed and delivered two notes payable to De Kalb in the amount of the check. On September 27, De Kalb informed the Purdys that the funds would not be advanced, and the check written in payment for the cattle would be dishonored. The check was returned to Saunders stamped “NSF,” and the notes were returned to the Purdys. During the evening of September 27, the Purdys telephoned Saunders to discuss alternative payment and the condition of the cattle. The Purdys indicated that if they could not obtain other financing they would return the cattle. They also assured Saunders that the cattle would be properly maintained while in the Purdys’ possession.

On September 30, the Purdys obtained a $45,000 loan from Shabbona. The proceeds of the loan were deposited in Robert Purdy’s medical practice account. These funds, along with other funds from Robert’s medical practice, were used to pay for the cattle. As security for the loan, the Purdys executed a security agreement granting Shabbona a security interest in the cattle and any proceeds from their sale. A financing statement was also executed and mailed to the office of the recorder of Lee County on October 5. The financing statement was returned to Shabbona as the fee submitted was insufficient. The statement was resubmitted with the increased fee and filed on October 14. Also, on October 6, Robert Jackson, president of Shabbona, sent a letter to De Kalb indicating Shabbona had loaned the Purdys “purchase money,” and Shabbona had filed a financing statement covering the cattle.

On April 16, 1984, the Purdys began selling the cattle involved, and De Kalb filed suit against the Purdys seeking replevin of the cattle and an injunction prohibiting the sale of the cattle. The court granted a temporary restraining order prohibiting the sale of the cattle. On April 26, the parties entered into a settlement agreement dismissing both of De Kalb’s claims.

The settlement agreement permitted the Purdys to sell the remaining cattle and provided that the proceeds “shall be paid to [Shabbona], by an instrument exhibiting on its face that it represents the proceeds from the sale of such cattle and the number of head sold.” A full accounting was to be provided to De Kalb. The cattle were sold, and the Purdys deposited most of the proceeds in their personal account at Shabbona. The proceeds from the sale of approximately 46 head of cattle were delivered to a former farmhand as a loan. Out of the deposited proceeds, the Purdys paid Shabbona $49,117.24. This constituted repayment of the $45,000 loan with accrued interest.

On April 30, 1984, De Kalb filed its complaint against the Purdys and Shabbona seeking declaratory relief. The complaint requested the court to determine the rights and obligations of the parties with respect to the cattle in question. The complaint also requested the court to order any and all proceeds from the sale of the cattle to be paid to De Kalb.

On September 12, 1984, De Kalb filed its motion for summary judgment. De Kalb sought judgment on the pleadings and also partial summary judgment against Shabbona, finding that Shabbona did not possess a purchase money security interest in the cattle. On December 14, the Purdys filed a cross-motion for judgment on the pleadings, claiming that the cattle were personal assets and, pursuant to the security agreement, not subject to De Kalb’s security interest. Shabbona also filed its cross-motion for summary judgment claiming that, as a matter of law, it possessed a purchase money security interest in the cattle and the proceeds from their sale which was superior to De Kalb’s security interest.

On April 4, 1985, the court granted partial summary judgment in favor of De Kalb and against Shabbona. The court found that Shabbona did not possess a purchase money security interest within the meaning of section 9 — 107 of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1985, ch. 26, par. 9 — 107). The court also found that, even if a purchase money security interest did exist, Shabbona’s security interest was not perfected within the “twenty day ‘grace’ period allowed a secured party claiming a purchase money priority.” (See Ill. Rev. Stat. 1985, ch. 26, par. 9 — 312(4).) As between Shabbona and De Kalb, the court found that De Kalb’s interest had priority over Shabbona’s interest. The court denied all other portions of De Kalb’s motion. The Purdys’ and Shabbona’s motions were denied in their entirety. Shabbona filed a motion to vacate the April 4 order, and on June 19, 1986, the court denied the motion. Both Shabbona and the Purdys appeal from the April 4 and June 19 orders.

On September 14, 1987, De Kalb filed a second amended complaint. Count I of this complaint remained the same as the original complaint for declaratory judgment. Count II of this complaint was severed and is not part of this appeal. De Kalb alleged in count III that the Purdys converted the proceeds from the sale of the cattle and used them for their own benefit. De Kalb requested judgment in the sum of $173,879.43 plus punitive damages against the Purdys. Count IV alleged that Shabbona aided and abetted the Purdys’ conversion of the proceeds. De Kalb requested judgment in the sum of $173,879.43 against Shabbona. Count V also sounded in conversion and alleged that Shabbona accepted payment of $49,117.27 from the Purdys in payment of a note when Shabbona knew these proceeds belonged to De Kalb. De Kalb requested judgment in the sum of $49,117.27 against Shabbona.

On October 6, 1987, the Purdys filed their answer to the second amended complaint and a two-count counterclaim. Count I of the counterclaim alleged that De Kalb breached its contract with the Purdys by not honoring the $105,494.07 draft executed by the Purdys and, therefore, is estopped from asserting any interest in the proceeds from the sale of the cattle. Count II of the counterclaim alleged that a judgment for De Kalb would result in unjust enrichment. The Purdys demanded a jury trial.

On October 28, 1987, De Kalb filed a motion to strike the Purdys’ counterclaim and jury demand. The court denied the motion to strike the counterclaim, and on July 10, 1989, the court granted De Kalb’s motion to strike the jury demand. The Purdys appeal from this order also.

On October 16, 1989, a bench trial commenced. On October 31, the court announced its decision, and on December 12, 1989, the court entered its judgment order. The court found that the cattle were not the Purdys’ personal assets and De Kalb did have a security interest in the cattle. The court also found that the Purdys converted the proceeds from the sale of the cattle to their own use in violation of the settlement order dated April 26, 1984. The court found that De Kalb was entitled to the entire proceeds of approximately $173,900 from the sale plus interest from the date of sale in the amount of $133,585. Judgment was entered in favor of De Kalb and against the Purdys for the sum of $307,464.57 on counts I and III. The court denied De Kalb’s request for attorney fees. The Purdys appeal from the judgment order entered against them, and De Kalb cross-appeals from the denial of its request for attorney fees.

The court also entered judgment on count I in favor of De Kalb and against Shabbona in the sum of $49,117.24 plus interest in the amount of $13,626.61. The court entered judgment in favor of Shabbona on counts IV and V, which were based on conversion. Shabbona appeals from the orders of the court entering judgment against the Purdys in the sum of $307,464.57 and against Shabbona for $62,743.85. De Kalb cross-appeals from the court’s order entering judgment against De Kalb on counts IV and V of its second amended complaint.

The first issue we will address is whether the court erred in granting partial summary judgment in favor of De Kalb on April 4, 1985. Shabbona contends that it had a purchase money security interest in the cattle and, also, that it timely perfected this interest. Therefore, Shabbona argues the court erred in finding that De Kalb’s security interest was superior to Shabbona’s interest.

Section 9 — 107 of the Code defines a “purchase money security interest” as follows:

“A security interest is a ‘purchase money security interest’ to the extent that it is
(a) taken or retained by the seller of the collateral to secure all or part of its price; or
(b) taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used.” (Ill. Rev. Stat. 1985, ch. 26, par. 9 — 107.)

This case involves the situation described in subsection (b). It is undisputed that Shabbona gave “value” to the Purdys by providing them with $45,000. However, De Kalb argues that the funds provided by Shabbona did not enable the Purdys to “acquire rights in or use of the collateral.” De Kalb contends that the Purdys already possessed all possible rights in the cattle and the funds were used to satisfy a preexisting indebtedness. Shabbona contends that the funds provided allowed the Purdys to acquire title to the cattle. Therefore, the court erred in finding that Shabbona did not possess a purchase money security interest.

The only case in Illinois directly discussing this issue is De Kalb Bank v. Klotz (1986), 151 Ill. App. 3d 638. However, the decision in Klotz is not applicable to the case at bar, and this court’s comments in Klotz on the issue presented are limited to the presentation of the Nebraska Supreme Court’s decision in North Platte State Bank v. Production Credit Association (1972), 189 Neb. 44, 200 N.W.2d 1.

In North Platte, a farmer purchased cattle from a seller on open account. The farmer took possession of the cattle on November 30, 1968. The farmer entered into a loan agreement with a bank on January 30, 1969, and the farmer used the proceeds of the loan to pay the seller for the cattle. The bank claimed that it possessed a purchase money security interest in the cattle. The court disagreed, stating:

“The money advanced by the Bank enabled Tucker to pay the price to Seller for the cows. But it was not used by Tucker to acquire any rights in the cows because he already had all the possible rights in the cows he could have with both possession and title.” (Emphasis added.) North Platte, 189 Neb. at 52, 200 N.W.2d at 6.

In United States v. Hooks (M.D. Ga. 1984), 40 Bankr. 715, a farmer sought to purchase cows from a seller. The farmer took possession of the cows for the purpose of inspecting and milking them. Several weeks later, the farmer obtained a loan to pay for the cows. The court found the parties had agreed that title to the cows would be transferred only when financing was completed. The court stated:

“It was only after the loan was approved and closed that title passed and the loan proceeds were disbursed. The loan and its disbursement thus are closely allied to the sale. The Court is of the opinion that rigid rules of sequence should not be followed, but that an inquiry should be made to determine the relationship of the transactions. *** [T]he Court is convinced that [the creditor] obtained a purchase-money security interest in the cows sold.” Hooks, 40 Bankr. at 721.

The case at bar is distinguishable from North Platte in that the cattle were not purchased on open account. Unlike in North Platte, title did not pass upon transfer of possession. It is clear that the terms of the sale to the Purdys were such that title did not pass to the Purdys until Saunders received payment. This is similar to the situation presented in Hooks. We disagree with De Kalb’s contention that the Purdys already possessed all possible rights in the cattle. Title is obviously a right in property, and the funds provided by Shabbona enabled the Purdys to acquire this right. We determine that there was no material issue of fact, and, as a matter of law, Shabbona did possess a purchase money security interest in the cattle purchased by the Purdys in September 1984. The trial court erred in finding otherwise.

The above determination does not completely resolve the summary judgment finding. The next issue we must address is whether Shabbona timely perfected its purchase money security interest thus entitling it to priority over De Kalb’s interest.

Section 9 — 302(1) of the Code requires the filing of a financing statement to perfect a purchase money security interest in non-consumer goods. (Ill. Rev. Stat. 1985, ch. 26, par. 9 — 302(l)(d).) Concerning priorities among conflicting security interests, section 9 — 312(4) of the Code provides:

“A purchase money security interest in collateral other than inventory has priority over a conflicting security interest in the same collateral or its proceeds if the purchase money security interest is perfected at the time the debtor receives possession of the collateral or within 20 days thereafter.” 111. Rev. Stat. 1985, ch. 26, par. 9-312(4).

De Kalb argues that since the Purdys took possession of the cattle on September 16, 1984, and Shabbona did not file its financing statement until October 14, 1984, Shabbona did not avail itself of the 20-day “grace” period allowed by section 9 — 312(4). Shabbona argues that the 20-day “grace” period did not begin to run until the Purdys became debtors of Shabbona, and the Purdys granted a security interest in the cattle.

The only Illinois case discovered that directly addresses this issue is In re Henning (N.D. Ill. 1987), 69 Bankr. 348. In Henning, a bank filed a financing statement on April 7, 1982, naming the farmer/ debtor and claiming a security interest in all cattle “now owned or hereinafter acquired.”' All parties agreed that the bank had a perfected security interest in after-acquired cattle. On August 21, 1984, a note for $72,000 and an appropriate security agreement were executed by the farmer and given to the seller of 31 head of cattle. The seller filed a financing statement on August 22. The note represented obligations of the farmer to the seller for the purchase of cattle delivered to the farmer between April 1982 and August 1984. The seller had delivered 27 of the 31 head of cattle to the farmer more than 20 days prior to the filing of the seller’s financing statement. The seller claimed that he possessed a purchase money security interest in all 31 head of cattle and this interest was superior to the bank’s after-acquired property security.interest.

The court found that since the farmer/debtor took possession of 27 of the cows prior to the 20-day period preceding the filing, the seller’s purchase money security interest was not timely perfected and was not superior to the bank’s interest. (Henning, 69 Bankr. at 350.) However, the court went on to state: .

“The only way [seller] could prevail in this action is if he retained title to the cows after delivery to the debtor. Section 2 — 401(2) of the Illinois Commercial Code provides that unless otherwise ‘explicitly’ agreed, title passes to the buyer at the time and place at which the seller completes his performance. [Citation.] In this case there is no evidence, either implied or explicit, that [seller] retained title to the cows after delivery to the debtor. Therefore, title to the cows transferred to the debtor upon delivery and that is when the twenty-day period provided for in [section] 9 — 312(4) began to run.” Henning, 69 Bankr. at 350.

In the case at bar, the situation is identical to that described by the court in Henning. Pursuant to an explicit agreement between the parties, the Purdys did not receive title to the cattle at the time they received possession. Title was transferred at a later date when the cattle were actually paid for. Therefore, it appears that the 20-day period should not begin to run on the date that only possession is transferred.

This position is supported by In re Ultra Precision Industries, Inc. (9th Cir. 1974), 503 F.2d 414. In Ultra Precision, a creditor had loaned the debtor money and was granted a security interest in certain after-acquired property. This security interest was perfected. Subsequently, the debtor entered into an agreement concerning the purchase of several machines from a vendor. The agreement provided that the vendor would deliver and install the machines and the debtor would have a reasonable period of time in which to test the machines’ performance. The machines were delivered on April 30, 1968, and on June 30, the testing was completed. On July 31, the vendor and debtor executed a purchase money security interest/sales agreement. The vendor assigned its rights under the agreement to a bank which filed a financing statement on August 5. The creditor claimed that the machines were subject to the after-acquired property provision of its security agreement. The creditor also claimed the debtor was a debtor in possession on the date of delivery and the purported security interest obtained by the vendor and later assigned' to the bank was not perfected within 10 days (the statutory time period allowed under California law) of this delivery date.

The court rejected the creditor’s argument, stating that the term “debtor” as used in the section of the Code dealing with purchase money security interest means debtor of the holder of the purchase money security interest in the collateral. (Ultra Precision, 503 F.2d at 417.) The court stated that the debtor was not a “debtor” of the prospective vendor/purchase money security holder until the sale was consummated and the security agreement was executed. (Ultra Precision, 503 F.2d at 417.) The court reasoned that, prior to that time, the vendor/purchase money security holder had no definitive security interest in the machines which could be perfected by the filing of a financing statement, and the debtor had no assignable legal interest in the machines which could fall into the grasp of the creditor’s after-acquired property security clause. (Ultra Precision, 503 F.2d at 417.) The court held that the debtor became a purchase money security interest debtor receiving possession at the time the security agreement was executed. Ultra Precision, 503 F.2d at 417; see also Hooks, 40 Bankr. at 722; State Bank & Trust Co. v. First National Bank (Tex. App. 1982), 635 S.W.2d 807, 808-09.

De Kalb cites North Platte which, it argues, states the contrary view that the “grace” period begins to run at the time possession of the security is transferred. In supporting its position that the time period begins to run on the date possession is transferred, the court in North Platte stated:

“The purchase money priority is an exception to the first to file rule, and it should be applied only in accordance with the limitations established by the Code. To interpret section 9— 312(4), U.C.C., in the manner the Bank urges would not only be contrary to the plain meaning of the language used in the statute but would expose an original lender to such serious practical risks that the whole structure of the Code would be impaired or endangered, because the original lender could never feel sure that he could rely on his collateral in his future dealings with the debtor.” North Platte, 189 Neb. at 54, 200 N.W.2d at 7.

We note, however, that North Platte involved a situation in which the debtor had simultaneously obtained both possession and title to the security in question. In this case, the Purdys did not have title to the cattle at the time they took possession. The concern that the original lender could not “rely on his collateral in his future dealings with the debtor” is not relevant to the situation at bar. At the time the Purdys took possession of the cattle, the cattle could not have come under the after-acquired property clause of De Kalb’s security agreement because the Purdys did not own them. Additionally, it must be remembered that the court in North Platte found that a purchase money security interest did not exist. We feel the discussion concerning the perfecting of a purchase money security interest was needless in North Platte, as there was no purchase money security interest involved. North Platte does not refute the position that the running of the “grace” period begins on the date that the debtor becomes a debtor of a holder of a valid purchase money security interest in the collateral.

De Kalb also cites In re Automated Bookbinding Services, Inc. (4th Cir. 1972), 471 F.2d 546. In Automated, the bankrupt party had executed a note and a chattel mortgage security agreement including an after-acquired property clause to Finance Company of America (FCA). Subsequently, the bankrupt party purchased machinery from Hans Mueller Corporation (HMC), which retained a valid purchase money security agreement covering the machinery. The terms of the sales agreement provided for instalment payments to be made on the machinery. The bankrupt party took possession of the machinery on June 2, 1970. However, the machines were not fully installed until June 19, 1970. Installation was the responsibility of the seller under the terms of the sales agreement.

The court held that the bankrupt party took possession on June 2 and completion of tender of delivery terms is irrelevant to when possession takes place. (Automated, 471 F.2d at 553.) The court stated: “[Possession under §9 — 312(4) is not dependent upon completion of tender of delivery terms which affect only the buyer and seller of the goods.” Automated, 471 F.2d at 553.

The case at bar is distinguishable because in Automated, as in North Platte, the debtor received all possible rights in the collateral on the date of delivery. In the instant case it is not simply a delivery term that is unsatisfied; it is the transfer of title. The transfer of title in this case does not “affect only the buyer and seller of the goods.” As previously stated, the cattle would not fall within the parameters of De Kalb’s after-acquired property security interest until the Purdys took title to the cattle. Similarly, the Purdys could not grant Shabbona a security interest in cattle that it did not own. This “term” of the agreement affects the rights of others and not just buyer and seller.

De Kalb also cites Bank of Madison v. Tri-County Livestock Auction Co. (1971), 123 Ga. App. 768, 182 S.E.2d 687. In Bank of Madison, the bank loaned money to a debtor and perfected a security interest in after-acquired property. Subsequently, the debtor entered into an agreement to purchase 40 head of cattle from a seller. A term of the agreement was that title would not pass until the check tendered in payment was honored. The debtor received possession of the cattle, but his check was dishonored. The debtor sent the cattle back to the seller so they could be sold. The seller was to recoup the money owed by debtor while the bank would receive any overage. The seller never filed a financing statement. The bank argued that its security interest was entitled to priority over any interest claimed by the seller. The court found that, where a seller sells property to a purchaser as a cash sale and surrenders possession to the purchaser without payment, the purchaser acquires all title which the seller had or had power to transfer. (Bank of Madison, 123 Ga. App. at 769, 182 S.E.2d at 689.) The court, citing the Georgia Uniform Commercial Code, stated that any reservation by the seller of the title in goods delivered to the buyer is limited in effect to a security interest. (Bank of Madison, 123 Ga. App. at 769, 182 S.E.2d at 689.) Therefore, the court held that the bank’s perfected security interest was entitled to priority over the seller’s unperfected purchase money security interest. Bank of Madison, 123 Ga. App. at 769-70, 182 S.E.2d at 689.

Bank of Madison involved a purchase money security interest being retained by a seller as described in section 9 — 107(a) of the Code. (See Ill. Rev. Stat. 1985, eh. 26, par. 9 — 107(a).) The court's decision does not refute the position that the time period within which to perfect a purchase money security interest begins to run when the debtor becomes the debtor of the holder of a valid purchase money security interest in the collateral. In Bank of Madison, the debtor became the debtor of a holder of a valid purchase money security interest (the seller) when possession was tendered. This is when the period began to run.

We believe that the comments expressed in Henning, and the holding in Ultra Precision, apply to the case at bar. While we feel that the decisions in North Platte, Automated, and Bank of Madison are all valid decisions, we decline to apply these decisions blindly as we find these decisions were rendered in materially different factual contexts. These cases are not inconsistent with Ultra Precision. While we acknowledge that Ultra Precision involves a situation in which there was a “test” or “trial” period, we feel that the underlying rationale applies to the facts of this case. All of the above-cited cases hold that the “grace” period allowed a valid purchase money security interest holder begins to run at the time the debtor becomes the debtor of the holder of a valid purchase money security interest in the collateral. This is true with respect to the cases involving section 9 — 107(a) and also the cases involving section 9 — 107(b) of the Code.

Additionally, it seems a harsh result that, while Shabbona could not have been granted a security interest in the cattle at the time of possession due to a lack of the Purdys’ ownership of the cattle and Shabbona’s failure to give value, when the Purdys’ ownership was established and Shabbona did provide value, it was too late for Shabbona to perfect the security interest received.

We find that, in this case, the 20-day statutory period did not begin to run until the Purdys acquired title to the cattle in question and became indebted to Shabbona as the holder of an unperfected purchase money security interest. The filing on October 14 was within the period allowed by section 9 — 312(4) and perfected Shabbona’s purchase money security interest. Therefore Shabbona’s security interest is entitled to priority. We need not determine whether the attempted filing on October 6 was sufficient to perfect Shabbona’s interest. The court erred in granting partial summary judgment to De Kalb and by not granting summary judgment in favor of Shabbona.

The disposition of the above issues resolves both the Purdys’ and Shabbona’s appeals from the grant of partial summary judgment entered on April 4, 1985, and the denial of the motion to vacate entered on June 19, 1986. This disposition also resolves in Shabbona’s favor its appeal from the court’s December 12, 1989, order entering judgment on count I in favor of De Kalb and against Shabbona for $62,743. Resolution of the above issue also disposes of De Kalb’s cross-appeal from the court’s order entering judgment for Shabbona on count V of De Kalb’s complaint. It is axiomatic that Shabbona cannot convert monies to which it is legally entitled.

The next issue we address is whether the trial court erred in striking the Purdys’ jury demand. The denial of a jury demand is within the discretion of the trial court. (Greene v. City of Chicago (1976), 48 Ill. App. 3d 502, 513.) Section 13 of Article I of the Illinois Constitution provides: “The right of trial by jury as heretofore enjoyed shall remain inviolate.” (Ill. Const. 1970, art. I, §13.) The right to a jury trial should be liberally construed in favor of the party requesting a jury, and the trial court should be inclined to protect that right. (Williams v. National Super Markets, Inc. (1986), 143 Ill. App. 3d 110, Ill.) In a declaratory judgment action, the right to a jury trial depends upon the relief sought. (Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 57-58.) “When a declaration of rights is the only relief sought, the predominant characteristics of the issues in dispute determine whether there exists the right to a jury trial. If additional relief is sought, the nature of that relief determines the right to a trial by jury.” Zurich, 118 Ill. 2d at 58, citing Lazarus v. Village of Northbrook (1964), 31 Ill. 2d 146, 148.

Count I of De Kalb’s second amended complaint was brought pursuant to section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701) and sought a declaratory judgment and the payment of money. Count III of plaintiff’s complaint alleged conversion and sought $173,879 in compensatory damages and $50,000 in punitive damages. It is obvious that De Kalb sought relief in addition to a mere declaration of rights. Therefore, it is the nature of this additional relief that determines whether a jury trial is proper.

The nature of the additional relief requested is money damages for breach of contract and conversion. The request for money damages is a legal as opposed to an equitable remedy. Additionally, the Purdys filed a counterclaim alleging breach of contract and estoppel. As their prayer for relief, the Purdys requested the court to award them the net proceeds from the sale of the cattle. Both parties are requesting more than a declaration of rights. This additional relief, as well as the underlying claims, are all premised on the loan agreement executed by the parties. The claims are basically for breach of contract.

De Kalb claims that these “other” claims are all ancillary to the declaration of rights under the agreement and, therefore, the Purdys are not entitled to a jury trial. If this were true, all breach of contract actions would be heard in equity because a court must always determine the rights and obligations of the parties in deciding whether a breach occurred and the amount of damages suffered as a result of the breach. De Kalb is clearly seeking legal relief. We determine that the court abused its discretion by denying the Purdys’ jury demand.

De Kalb contends that even if the court erred in denying the Purdys’ demand for a jury trial, this court should not remand for a new trial because there is no issue of fact to be presented to a jury on retrial. While a situation such as described by De Kalb may not require a remand for a new trial, we find that there are issues of fact to be considered in count I of the case at bar. Among the many factual issues presented are: whether the cattle are the personal assets of the Purdys; whether the cattle were cared for with funds supplied exclusively by De Kalb, Shabbona, the Purdys, or all three parties; and how do the parties’ actions reflect upon their stated obligations under the loan agreement. These are all questions that should have been answered by a jury. This is especially true due to our finding that Shabbona did have a perfected purchase money security interest in the cattle. We find that this cause must be remanded for a new trial before a jury on count I against the Purdys.

We also find the court’s judgment against the Purdys on their counterclaims and the court’s judgment against De Kalb denying De Kalb’s claim against the Purdys for attorney fees must be retried before a jury. As these claims are all centered around the loan agreement and the intended rights thereunder, they are intertwined with the factual questions raised by count I. These claims are remanded to the trial court along with count I against the Purdys for a jury trial.

While we find the above claims involving the Purdys must be retried before a jury, for the reasons stated below we find that count III against the Purdys for conversion and count IV against Shabbona for aiding and abetting conversion do not have to be retried before a jury. The trial court’s decisions on these counts can be reviewed and disposed of as a matter of law.

Count III alleges a cause of action for conversion against the Purdys. “The elements of conversion are (1) unauthorized and wrongful assumption of control or ownership by one person over the personalty of another; (2) the other person’s right in the property; (3) the right to immediate possession of the property; and (4) a demand for possession.” (Naiditch v. Shaf Home Builders, Inc. (1987), 160 Ill. App. 3d 245, 269.) Our supreme court, quoting section 222A of the Restatement (Second) of Torts (1965), stated that “ ‘[conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.’ ” (Emphasis added.) In re Thebus (1985), 108 Ill. 2d 255, 259.

The initial inquiry is whether the elements of conversion, such as would support an action in trover, are present. “Trover lies for specific chattels wrongfully converted, and not for money had and received for payment of debts. It does not operate on chattels generally, but specifically, such as money in coin or bills, animals, or other property capable of identification as being the actual property or thing wrongfully taken and converted.” (Kerwin v. Balhatchett (1909), 147 Ill. App. 561, 565-66; see also Janes v. First Federal Savings & Loan Association (1973), 11 Ill. App. 3d 631, 637.) “[T]rover will not lie for money given to a defendant to be used for a particular purpose, which defendant converts to his own use or which may be found due upon an accounting.” Kerwin, 147 Ill. App. at 566.

In the case at bar, De Kalb attempts to claim that the Purdys “converted” money by spending it. This is not the basis of conversion. Conversion may have taken place when the cattle were sold and “converted” into money, but De Kalb authorized this conversion. Money cannot be the subject of conversion unless it is the specific coins and bills that are being sought by the plaintiff such as is the case with rare coins. While De Kalb may have a cause of action against the Purdys for money due and owing, their cause of action is not for conversion.

De Kalb cites C.O. Funk & Sons, Inc. v. Sullivan Equipment, Inc. (1982), 89 Ill. 2d 27, as support for the contention that money can be specific chattel. However, Funk is not an action for conversion. Funk deals with a situation in which a party is trying to attach its security interest onto proceeds of a sale of collateral by specifically identifying the proceeds. The court in Funk was concerned with specifically identifying the proceeds to determine if a security interest survived the commingling of the proceeds with other funds. This court also addressed that issue in Central Production Credit Associa tion v. Hans (1989), 189 Ill. App. 3d 889. While these cases provide in-depth discussions concerning “tracing” proceeds of the sale of security to determine if a security interest in specific property is still attached to certain sums of money, they do not address conversion and whether money can be converted absent an allegation that the money can be specifically identified.

We find that, as a matter of law, the Purdys did not commit conversion by using the monies deposited in their account at Shabbona.

Count IV of De Kalb’s second amended complaint alleges that Shabbona aided and abetted the Purdys in converting the proceeds of the sale of the cattle. The trial court found Shabbona did not aid and abet the Purdys’ conversion and was not liable to De Kalb. A judgment rendered in a bench trial will not be disturbed unless it is contrary to the manifest weight of the evidence. (Ruggio v. Ditkowsky (1986), 147 Ill. App. 3d 638, 642.) A reviewing court will not reverse a judgment of the trial court if there is evidence to support the judgment. (Ruggio, 147 Ill. App. 3d at 642.) Due to our disposition of count III above, the court’s decision on count IV in favor of Shabbona must be affirmed. Since the Purdys did not convert the proceeds of the sale of the cattle, Shabbona could not possibly have aided and abetted the conversion. This court may affirm a judgment on any ground warranted, regardless of whether it was relied upon by the trial court. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387.) The trial court’s judgment on count IV is affirmed.

For the foregoing reasons, the decisions of the circuit court of De Kalb County on counts IV and V of plaintiff’s second amended complaint are affirmed. The court’s decision on count III is reversed. The court’s decision on count I, entering judgment against the ■ defendant Shabbona, is reversed. All other decisions relating to count I pertaining to the plaintiff and the defendant Purdy are vacated, and these issues are remanded to the trial court for a trial before a jury.

Affirmed in part; reversed in part; vacated and remanded in part.

GEIGER and INGLIS, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHESTER HUGHES, Defendant-Appellant.
    Second District
    No. 2—88—1198
    Opinion filed November 9, 1990.
    G. Joseph Weller and Sherry R. Engelstad, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan, and Richard L. Salon, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County, the defendant, Chester Hughes, was acquitted of aggravated criminal sexual assault and criminal sexual assault but convicted of aggravated battery and sentenced to 30 months’ imprisonment. On appeal, he contends that certain trial errors require reversal of the conviction. We disagree and affirm.

The State’s first witness, complainant LaTracia Johnson, testified that on the evening of February 9, 1988, she was at the Rolling Greens apartment building in North Chicago, waiting for a ride home. The defendant called to her from his apartment window and struck up a conversation. She asked to use his telephone to call for a ride, and he accordingly let her into the building and accompanied her to his apartment. When she saw that the apartment had apparently been decorated by a woman, she turned to leave, but, according to her testimony, the defendant grabbed her and pulled her back in. She asked him if he had a girlfriend; he replied that he had a wife who was away for a month. According to Johnson, the defendant locked the door, forced her into the bedroom, and insisted that she take off her clothes and have sex with him. Johnson said she did not want to because she had recently had an abortion and her vagina was sore. The defendant then starting poking her in the left leg with a pocket knife until, after the fourth such jab, she felt pain going through her leg. When she realized that he would not stop poking her, she took off her clothes and lay down on the bed. The defendant held her down and hit her to make her perform oral sex, then proceeded to have intercourse with her for about five minutes. Afterwards, they told each other that they would bet money on whether she had gotten pregnant, and they looked unsuccessfully for her gloves. Johnson testified that she left the defendant’s apartment and went to the home of her friend, Angela Pharms. When Pharms asked what was wrong with her, Johnson told her that she had walked past a group of boys and that one of them had accidentally stabbed her.

At this point in the testimony, defense counsel, in a conference outside the hearing of the jury, moved in limine to prevent the State from eliciting details of what Johnson had told people to whom she reported that she had been raped. The trial judge granted the motion, explaining that, because such details would not be admissible under the spontaneous utterance exception to the hearsay rule, he would let the prosecution allow witnesses to testify that Johnson had reported being raped but would not let the prosecution elicit testimony about the details of any such reports or conversations. The prosecutor had remarked without objection in his opening statement that the jury would hear evidence that Johnson had told several people that she had been stabbed and raped.

It is not disputed that, after spending the night at Angela Pharms’ home, Johnson the next afternoon went to the home of Brenda Williams and was taken by paramedics to St. Therese Medical Center, where she was treated for her stab wound by Dr. Bruce Sands. That evening she visited Carrie Harris, went to the police and spoke with Lieutenant Kaczmaryn, then went again to St. Therese Medical Center, where she was treated by Dr. Thomas Braniff. The next day, February 11, she went back to the police station and talked to Detective Johnnie Phelps about the incident with the defendant.

Johnson testified without objection that she told Carrie Harris that she had been stabbed and raped. On cross-examination she admitted not telling Angela Pharms until after the night of February 9 that she had been raped and stabbed and not telling Brenda Williams, the paramedics, or Dr. Sands that she had been raped and stabbed. She admitted not telling Lieutenant Kaczmaryn that the defendant had stabbed her, and telling Detective Phelps that the defendant had raped her but not that he had stuck her in the leg.

Angela Pharms testified that when she saw Johnson on the evening of February 9 the latter had been crying and was bleeding from an open cut on her left leg. Carrie Harris testified without objection that Johnson told her of being raped and stabbed, but only after she had told Harris that she hurt her leg when she fell. Dr. Sands testified without objection that Johnson had told him that she had been stabbed, but not that she had been raped.

Detective Johnnie Phelps testified that on the morning of March 7, 1988, the defendant and his mother walked into the North Chicago police station. Phelps served a copy of an arrest warrant on defendant, took him to the interview room, and read him his rights. After the defendant signed a waiver of rights, Phelps told him about Johnson’s report to the police, and the defendant acknowledged letting Johnson into his apartment and conversing with her. The defendant admitted stabbing Johnson in the leg with a knife a couple of times after which both he and Johnson took off their clothes, had sexual intercourse, got dressed, and looked for her gloves. The defendant denied to Phelps that he had forced her back into the apartment or attempted to have oral sex with her, but admitted telling her that he would bet $50 that she was not pregnant. After listening to the defendant, Phelps wrote up a statement which was later admitted into evidence.

After the trial court denied defendant’s motion for a directed verdict, the defense put on its case. Brenda Williams testified on direct examination that Johnson told her that she had been stabbed by one of three boys she passed on the street. David Biggs, one of the paramedics who took Johnson to the hospital, testified that Johnson told the paramedics that her stab wound was an accident that resulted from playing with a knife with a girlfriend and that she never told them that she had been raped. He stated on cross-examination, without objection, that the paramedics were surprised when they heard her tell the doctors that she had been raped. Dr. Braniff testified that Johnson had told him that she had been stabbed and raped.

The defendant took the witness stand and testified that Johnson had been in his apartment for about 45 minutes before they had sex and had not told the defendant anything about an abortion. According to the defendant, “one thing led to another,” and the two went into the bedroom, removed their clothing, and had sexual intercourse. The defendant denied having a knife or stabbing Johnson. He stated that he did not slap her, or attempt oral sex, and that neither of them bet on whether she was pregnant or looked for her gloves.

The defendant testified that he went to the police station with his mother on March 7, after she had telephoned him with news that there was a warrant out for his arrest. At the station, the defendant met Phelps and, in the interview room, signed a waiver of rights and talked about the incident with Johnson. The defendant testified that after he finished Phelps told him that Johnson had told Phelps that the defendant had a knife; the defendant at first denied this but, intimidated by Phelps’ reputation and by his cursing and calling the defendant a liar, got nervous and told Phelps that he had had a knife.

At the close of the evidence, the defendant moved for a directed verdict on all charges. The next day, at a conference with counsel, the trial judge denied the motion and, on his own initiative, informed counsel that according to the hearsay rules he had been mistaken to allow any testimony that LaTracia Johnson had told others that she had been raped. On the judge’s request, the prosecutor drafted a curative instruction, later given to the jury, which told the jury not to consider in any way the testimony regarding LaTracia’s complaint of rape to several witnesses. Defense counsel stated that the draft instruction was inadequate because it did not specifically tell the jury that the testimony was unreliable. Defense counsel did not tender an alternative instruction and expressly declined the trial judge’s suggestion to move for a mistrial. When the trial judge then indicated that he would give the curative instruction, defense counsel made no response.

The jury returned, counsel delivered closing arguments, and the trial judge read the curative instruction along with the other instructions. The jury acquitted the defendant of the two sexual assault charges and convicted him of aggravated battery. The trial court subsequently sentenced the defendant to 30 months’ imprisonment and denied his motion for a new trial or for a judgment n.o.v.

The defendant contends first that he was denied a fair trial when a uniformed Lake County sheriff escorted him to the witness stand, stood behind him as he testified, and escorted him back to the defense table afterward. The defense claims that, according to Holbrook v. Flynn (1986), 475 U.S. 560, 89 L. Ed. 2d 525, 106 S. Ct. 1340, such “guarding” of the defendant attenuated the presumption of innocence and created a constitutionally unacceptable risk that factors not in evidence would lead the jury to find him guilty.

The sole reference in the record to the presence of the officer is contained in the following exchange between defense counsel and the trial judge, which took place after the conclusion of the defendant’s testimony:

“MS. GROHS [Defense Counsel]: I want this for the record, that when the defendant walked up to testify, he was escorted by a Lake County Sheriff, who stood behind him while testifying, and then escorted him back to the seat.
THE COURT: Not in any, any, well, unusual way.”

The defendant did not complain about the presence of the sheriff before or during his testimony, did not clearly object afterward, and did not renew the matter in any way thereafter until this appeal. Acknowledging that this issue was waived at the trial level, he asks us to find that the presence of the officer constituted plain error (107 Ill. 2d R. 615(a)). We find no error.

In Holbrook v. Flynn, the Supreme Court refused to hold that the defendant was denied a fair trial by the presence, at his trial with five codefendants, of four uniformed State troopers sitting in the first row of the spectator section of the courtroom. The court held that the presence of security personnel in a courtroom during a trial, unlike the shackling of a defendant, is not the sort of inherently prejudicial practice that should be permitted only where justified by an essential State interest specific to each trial. The Court explained that a jury would not necessarily infer from the officers’ presence that the defendant was particularly dangerous or culpable but might as easily assume that the officers were there out of a normal concern for courtroom order or simply infer nothing at all. Even a slight degree of prejudice could be justified by the State’s need to insure the presence at trial of defendants who had been denied bail. The Court therefore held that the defendant in each case has the burden to show actual prejudice.

Applying these principles, we hold that the bare fact that the defendant was escorted to and from the witness stand and “guarded” during his testimony by a security officer is inadequate to demonstrate any prejudice, much less plain error, particularly as the trial judge did not find the procedure unusual and the defendant’s recognizance bond had been revoked after his numerous unauthorized absences from pretrial bond supervision. It is not material that the officer was positioned near the defendant rather than in the spectator section (People v. Glasco (1966), 66 Ill. App. 2d 445, 448-49) or that he stood at an unspecified distance behind the defendant as the latter testified (United States v. Williams (8th Cir. 1990), 897 F.2d 1430, 1434).

The defendant contends secondly that the trial court's instruction on the complainant’s reports of rape did not cure the unfair prejudice to him from the admission of this evidence. He argues that as all such statements were inadmissible hearsay, not within the exception for spontaneous declarations, the curative instruction was inadequate because it referred only to rape and therefore allowed the jury to consider testimony that LaTracia Johnson told others that she had been stabbed.

Defense counsel did not object to references in the prosecutor’s opening statement to such testimony and objected at trial only to attempts to elicit details of LaTracia Johnson’s reports of being raped or stabbed. The trial judge issued the curative instruction entirely on his own initiative. Defense counsel declined to offer an alternative instruction, move for a mistrial, formally object, or call the trial judge’s attention to the particular weakness that the defendant now alleges. Any error in the instruction has been waived. People v. Tannenbaum (1980), 82 Ill. 2d 177, 180-81.

The trial court’s judgment is affirmed.

Affirmed.

DUNN and WOODWARD, JJ., concur.


author: JUSTICE GEIGER

text:
    ROBERT SWIATEK, Plaintiff-Appellee, v. BENSENVILLE POLICE PENSION BOARD et al., Defendants-Appellants.
    Second District
    No. 2—90—0057
    Opinion filed November 9, 1990.
    Doss, Puchalski & Keenan, Ltd., of Chicago (Richard J. Puchalski, of counsel), for appellants.
    George M. Monaco, of Inverness, for appellee.
    Robert J. Reimer, of Illinois Police Pension Fund Association, of Chicago, for amicus curiae Illinois Police Pension Fund.
   JUSTICE GEIGER

delivered the opinion of the court:

The defendant, Bensenville Police Pension Board (the Board), appeals from the circuit court’s reversal of the Board’s denials of disability pension benefits and the court’s award of benefits, to the plaintiff, Robert Swiatek. We affirm.

The plaintiff began employment with the Bensenville police department (the department) in June 1972. On December 10, 1987, he applied for a disability pension under section 3 — 115 of the Illinois Pension Code (the Code) (Ill. Rev. Stat. 1987, ch. 108½, par. 3 — 115). Thereafter, the plaintiff requested sick leave; as late as March 21, 1988, the police chief denied that request.

On June 3, 1988, after he had submitted to medical examination at the Board’s instruction but before he had been assigned a hearing date by the Board, the plaintiff submitted a letter of conditional resignation to the Bensenville Board of Fire and Police Commissioners. The plaintiff’s resignation letter provided that he resigned subject to the following conditions: (1) that he be permitted to pursue his pending disability pension application; (2) that pending, internal charges against him be withdrawn without prejudice; (3) that he waived all rights to employment with the department either if he were denied a disability pension or if he were granted a disability pension and subsequently found fit to return to service; and (4) that within 90 days of his 50th birthday, if he were still receiving disability pension benefits, he agreed to apply for a retirement pension. On June 27, 1988, the Board heard the plaintiff’s disability pension petition. It denied benefits, finding, basically, that the plaintiff was ineligible because of his voluntary resignation from the department. On administrative review, the circuit court reversed and remanded for the Board to determine', whether the plaintiff was entitled to a duty-related pension or a not-related-to-duty (nonduty) pension. On remand, the Board again denied benefits. On the second administrative review, the circuit court affirmed the Board’s denial of a duty-related pension but found that the Board’s decision on a nonduty pension was contrary to the manifest weight of the evidence. It awarded the plaintiff nonduty disability as of December 10, 1987. The Board brought this appeal.

On appeal, the Board argues primarily that the plaintiff’s voluntary resignation renders him ineligible to obtain a disability pension and that the Board’s decision denying a pension was neither against the manifest weight of the evidence nor legally erroneous. The Board and amicus curiae Illinois Police Pension Fund Association argue, basically, that to receive police disability pension benefits, one must be a “police officer” not only when he applies, but also when he receives benefits. According to their argument, the plaintiff’s voluntary resignation, through submission of the resignation letter, severed both his employment relationship to the department and his pension entitlement. We need address neither this argument nor the argument that the plaintiff’s application for nonduty benefits occurred after his resignation, because we find, as the plaintiff argues in part, that his resignation was conditioned on events which have not occurred.

According to the plaintiff, his resignation was conditional at least either until he was denied a disability pension or until his disability was determined to have ceased. In its brief, the Board argues without authority that this argument lacks merit for two reasons: (1) because the Code does not provide that an officer can condition his resignation upon the adjudication of a disability pension; and (2) because the plaintiff’s resignation agreement was not entered into with the Board and the Board did not agree to the resignation letter’s conditions. In oral argument, the Board’s only argument on this point was that the issue had not been argued in earlier proceedings.

The Board has agreed that the plaintiff thought that he was resigning in a way that would not disrupt his pension rights. The Board also has agreed that, if the plaintiff’s resignation is not effective because conditions precedent have not occurred, the plaintiff remains a police officer. The Board presents no reason why, in that case, the demonstrably disabled plaintiff is ineligible for a disability pension.

Rules covering fire and police pensions are to be liberally construed to favor pension beneficiaries. (Donnells v. Woodridge Police Pension Board (1987), 159 Ill. App. 3d 735, 741.) Our careful review of the Code reveals nothing therein to conflict with the possibility that an officer may conditionally resign his employment but retain his pension entitlement at least until the satisfaction of all conditions ■ precedent to the effective resignation.

Furthermore, we do not find determinative that the Board did not agree to the conditions of the plaintiff’s resignation. The Board’s role is not to control the question of whether an officer remains on the service roles; rather, its relevant role is merely to review whether an applicant’s employment status and other circumstances entitle him to pension benefits. Compare Ill. Rev. Stat. 1989, ch. 24, par. 10 — 2.1—4 et seq., with Ill. Rev. Stat. 1989, ch. 108½, par. 3 — 131 et seq.

We conclude that, during the plaintiff’s ongoing employment with the department, he had brought the proper application for disability pension benefits and that his application was based upon a clearly demonstrated disability. We also conclude that the plaintiff made clear efforts to preserve his pension. His letter of resignation stated clear conditions precedent, and not all of those conditions have been satisfied; neither has the plaintiff been finally, judicially determined unqualified to receive a pension, nor has he once been awarded a pension and later determined to be fit to return to service. We find that the Code is properly construed to favor the availability of a disability pension in this case and that the court properly reversed the Board’s unsupported pension denials. See Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 496-98.

Based on the foregoing, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

INGLIS and McLAREN, JJ., concur.


text:
    ELSA WATSON et al., Plaintiffs-Appellants, v. HARTFORD CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2—90—0041
    Opinion filed November 9, 1990.

      John Kennedy, of Walsh & Knippen, Chartered, of Wheaton, for appellants.
    Thomas R. Weiler, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The plaintiffs, Elsa and Graham Watson, appeal the order denying their motion for summary judgment and granting summary judgment in favor of the defendant, Hartford Casualty Insurance Company (the company). Mrs. Watson was injured in an automobile accident involving an uninsured motorist on August 6, 1986. The plaintiffs were insured under a policy issued by the company and renewed April 30, 1986.

The plaintiffs contend they should be insured up to the policy’s $100,000 liability limit for bodily injury. The company contends the plaintiffs are insured up to the policy’s $30,000 limit for uninsured motorist coverage. The pivotal issue before us is whether the company made an inadequate offer of additional uninsured motor vehicle coverage.

The plaintiffs had been insured by the company for at least 19 years. In 1980 and 1981, the company mailed form CAF — 7012—0, with a policy renewal form, to Mr. Watson. In 1983, the company mailed form CAF — 1246—0 with Mr. Watson’s policy renewal form. Form CAF — 1246—0 included the following language:

“As a Reminder:
You may purchase Uninsured Motorist Coverage at a limit of liability equal to the Bodily Injury limit of liability of your policy or, in certain cases, a lesser amount. Underinsured Motorist Coverage equal to your Uninsured Motorist Coverage is required when you purchase higher limits of Uninsured Motorist.
We recommend that you consider these coverages as they will provide for payment to you if you suffer bodily injury because you are struck by an uninsured motorist or by a motorist who carries a limit of liability for bodily injury less than the amount of Uninsured/Underinsured Motorist Coverage you can carry and, in either case, the other motorist is legally responsible for the accident.
This protection applies whether or not you are occupying an automobile. For example, you or a resident relative may be struck by an uninsured or ‘hit-and-run’ automobile while walking or bicycling. It also covers passengers in your car and persons driving your car with your permission.”

Form CAF — 7012—0 read as follows:

“You may purchase Uninsured Motorist Coverage at a limit of liability equal to the Bodily Injury limit of liability of your policy or, in certain cases, a lesser amount. You may also purchase Underinsured Motorist Coverage equal to your Uninsured Motorist Coverage (for motor vehicles insured on a commercial policy those coverages are combined).
We recommend that you consider these coverages as they will provide for payment to you if you suffer bodily injury because you are struck by an uninsured motorist or by a motorist who carries a limit of liability for bodily injury less than the amount of Uninsured/Underinsured Motorist Coverage you carry and, in either case, the other motorist is legally responsible for the accident.
This protection applies whether or not you are occupying an automobile. For example, you or a resident relative may be struck by an uninsured or ‘hit-and-run’ automobile while walking or bicycling. It also covers passengers in your car and persons driving your car with permission.
Your agent can provide information concerning these coverages, the cost, and the choices available to you.”

Mr. Watson, the named insured on the policy, had no recollection of receiving these notices. He disposed of all his documents dating prior to 1984. His uninsured motorist coverage limit was raised on April 30, 1980, from $20,000 to $30,000 although his bodily injury liability limit was $100,000. After the accident, the plaintiffs brought a declaratory judgment action to determine whether the bodily injury limit should apply.

The plaintiffs contended at trial, as they have in this court, that the company failed to make a proper offer of additional coverage sufficient to advise the Watsons in an intelligent manner as required by section 143a — -2(1) of the Insurance Code (Ill. Rev. Stat., 1980 Supp., ch. 73, par. 755a — 2(1)). They claim the company’s forms failed the four-part test outlined in Cloninger v. National General Insurance Co. (1985), 109 Ill. 2d 419, 425-26.

The company responds that its form was found, as a matter of law, to provide sufficient information for an insured to make an intelligent decision with respect to the additional coverage (Orolin v. Hartford Accident & Indemnity Co. (N.D. Ill. 1984), 585 F. Supp. 97, 102) and was approved by our supreme court in Cloninger (109 Ill. 2d at 428). The company further contends that the four-part analysis set out in Cloninger is not a test of necessary elements but merely a helpful list to be used when analyzing coverage.

The issue of whether an insurance company should be liable in Illinois for failure to offer additional uninsured motorist coverage arose as a case of first impression in the Federal district court. In Orolin, the Federal district court predicted that the Illinois Supreme Court would construe section 143a — 2 to require that an insurance company should provide the insured person with information sufficient to make an intelligent decision regarding obtaining additional coverage. The information should apprise the insured person of the availability of the coverage and prompt a reasonable person to make further inquiry. (Orolin, 585 F. Supp. at 101.) The district court applied this rule to an insurance form which is identical to form CAF— 7012 — 0 and found it provided information sufficient to allow the customer to make an intelligent decision. (585 F. Supp. at 102.) We note, however, that decisions of Federal courts in construing the statutes of this State are not binding on this court. Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 182.

In Cloninger, the Illinois Supreme Court found an insurance company liable for failure to make a proper offer of coverage. In reaching its decision, the supreme court applied the four factors listed in Hastings v. United Pacific Insurance Co. (Minn. 1982), 318 N.W.2d 849. The court stated that a four-part test must be met:

“(1) notification must be commercially reasonable if the offer is made in other than face-to-face negotiations; (2) the limits of the optional coverage must be specified and not set forth in general terms; (3) the insured must be intelligibly advised by the insurer of the nature of the option; and (4) the insurer must advise the insured that the optional coverage is available for relatively modest premium increases.” Cloninger, 109 Ill. 2d at 425-26.

In Cloninger, the court found the form satisfied the second and fourth parts of the test since it listed the optional coverage in specific amounts and listed the premiums for the coverage. The insured person could check a box on the form to double his coverage in some circumstances for the additional cost of $1. However, the form failed to explain the nature of the coverage and thus failed to satisfy the fourth part of the test. (109 Ill. 2d at 428.) The supreme court noted that, had the form included an explanation of the offer as discussed in Orolin, it would have cured the improper offer in Cloninger. (109 Ill. 2d at 428.) Justice Miller, in his concurring opinion, also noted that the Hartford form in Orolin was insufficient because it failed to explain how uninsured motorist and underinsured motorist coverages were related. (109 Ill. 2d at 430 (Miller, J., specially concurring).) In addition, because the sufficiency of premium information was not at issue in Cloninger, the supreme court never ruled that an offer must include an all-inclusive list of optional coverages. See Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 555.

The company contends that its form was approved by the Illinois Supreme Court in Cloninger as the model form which provided information sufficient for an insured person to make an intelligent decision. The plaintiff contends that the supreme court approved only part of the form.

We first note that the Cloninger court’s comment concerning the Hartford form was dictum which concerned an issue unrelated to the essence of the controversy and which was based on hypothetical facts. The Illinois Supreme Court’s obiter dicta are not binding authority, although they may be persuasive. (In re Marriage of Drews (1985), 139 Ill. App. 3d 763, 771.) The only issue in the Cloninger case was whether the form satisfied the first and third parts of the Hastings test. Cloninger did not address the second and fourth parts of the test and therefore is not persuasive as to those parts. Moreover, the concurring justice noted the form was satisfactory “together with” schedules satisfying the second and fourth parts. These schedules are not part of form CAF — 7012—0. We do not believe that the Cloninger case is binding precedent that the Hartford form is satisfactory in all cases.

The plaintiff contends that the company’s form fails the second and fourth parts of the Hastings test. This court has found similar provisions inadequate. In Rutter v. Horace Mann Insurance Co. (1989), 190 Ill. App. 3d 467, 478, this court determined that the insurance company failed to advise the insured person that optional coverage was available for a relatively modest premium increase and thus failed to meet the requirements of the Hastings test. One purpose of the test is to reassure an insured that the cost of additional coverage is modest. 190 Ill. App. 3d at 476.

The offer need not list the exact premiums so long as it states the additional cost is modest. (Krska v. Allstate Insurance Co. (1987), 162 Ill. App. 3d 549, 554-55.) However, the mere statement “Did you know that you may now have uninsured motorist coverage up to your bodily injury liability limits[?] If interested, contact your agent” is insufficient. (Overbey v. Illinois Farmers Insurance Co. (1988), 170 Ill. App. 3d 594, 603, citing Kuchenmeister v. Illinois Farmers Insurance Co. (Minn. 1981), 310 N.W.2d 86, 88.) A more detailed offer explaining the nature of the coverage was found to be insufficient because it failed to mention the increased cost. (Tucker v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 329, 336.) Thus it appears that the company’s form fails to satisfy the fourth part of the Hastings test because it lacks premium information.

In addition, the Hartford form fails to satisfy the second part of the test which requires specific, rather than general, offers of increased limits of coverage. (Overbey, 170 Ill. App. 3d at 603.) The offer puts the burden on the Watsons to inquire further concerning additional coverage. Section 143a — 2 requires insurance companies to offer additional coverage in clear and specific terms in their renewal policies so that the customer has an effective and clear power to accept or reject the offer. Petersen v. Allstate Insurance Co. (1988), 171 Ill. App. 3d 909, 913.

Even if the company’s offer did not satisfy the Hastings test, the company contends that it need not meet the test if the offer is sufficient to apprise an insured person of the optional coverage. The company argues that the supreme court merely stated that the Hastings test was “helpful” in determining whether a proper offer was made. (Cloninger, 109 Ill. 2d at 427.) Subsequent Illinois cases discussing the Hastings list have referred to it as a “test” of required elements. (Rutter, 190 Ill. App. 3d at 475; Petersen, 171 Ill. App. 3d at 912; Overbey, 170 Ill. App. 3d at 602-03; Krska, 162 Ill. App. 3d at 553; Tucker, 125 Ill. App. 3d at 335.) In Rutter, this court declined to overrule Krska, in which we determined that the four-part test in Cloninger applied. (190 Ill. App. 3d at 475.) In keeping with those cases, we hold that the Hastings requirements, as set forth in Cloninger, must be satisfied for an offer to be adequate under section 143a — 2 of the Insurance Code.

We believe that the fourth part of the test incorporates the valid concern that an insured person be given enough information to make an intelligent decision about optional coverages and their costs. (Rutter, 190 Ill. App. 3d at 476; League General Insurance Co. v. Tvedt (Minn. 1982), 317 N.W.2d 40, 42.) Because the company’s offer lacked the specificity necessary to satisfy parts two and four of the test, the trial court erred in granting summary judgment for the company.

The final issue is whether the court properly denied the plaintiffs’ motion for summary judgment. A motion for summary judgment should be granted if the pleadings, depositions and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 433-34; Houser v. State Farm Insurance Co. (1989), 193 Ill. App. 3d 125, 128.

While we have determined that the company’s printed forms were insufficient to inform the plaintiffs of the availability of the optional coverage, it is possible that the plaintiffs may have received the information from another source, such as an insurance agent. (Rutter, 190 Ill. App. 3d at 476.) In such cases, summary judgment for the plaintiff should be denied. (190 Ill. App. 3d at 482.) To have been entitled to summary judgment, the Watsons were required to show they did not receive any additional information sufficient to cure the deficiency of the form they received. Rutter, 190 Ill. App. 3d at 476-77.

In this cause, the deposition of Graham Watson reveals that he was not aware that he could increase his uninsured motorist coverage, that nobody ever told him he could increase it, and that he was not aware of the costs of the optional coverage. In fact, the minimal cost of the optional coverage was not even a factor in his actions. The company presented no evidence that the Watsons had received information concerning the premiums. In addition, the company was unable to produce any information concerning the premiums for the coverage it allegedly offered in 1980 and 1983. Thus, there was no genuine issue of material fact presented in the record regarding whether the plaintiffs actually received supplemental information which would have further advised them of the terms of the optional coverage and cured the deficient notice form. The plaintiffs were, therefore, entitled to summary judgment.

The remedy for an inadequate offer of uninsured motorist coverage is to increase the existing coverage to limits equal to the bodily injury liability limits of the insured person’s policy. (Rutter, 190 Ill. App. 3d at 478.) Had plaintiffs been properly informed and offered the increased limits, it is probable that they would have selected limits providing them with protection equivalent to that which they provided the public. While it is true that the insured person might have selected lower uninsured motorist coverage limits, it is not unreasonable to require that the insurance provider bear the risk of its failure to make a proper offer of coverage. (Rutter, 190 Ill. App. 3d at 478.) The plaintiffs’ policy provided liability limits of $100,000 for bodily injury. Therefore, the trial court should have granted judgment on plaintiffs’ complaint for declaratory judgment by ruling that the limits of the policy be $100,000 for the relevant incident.

For the above reasons, the order of the circuit court is reversed, and the cause is remanded for entry of judgment consistent with this order.

Reversed and remanded.

INGLIS and McLAREN, JJ., concur.


author: JUSTICE REINHARD

text:
    ANN MARIE YANAN, Plaintiff-Appellant, v. EARNESTINE EWING, Defendant-Appellee (Donald Allen, Defendant).
    Second District
    No. 2—90—0205
    Opinion filed November 8, 1990.

      Anthony F. Mannina, of Wheaton, for appellant.
    Randall C. Monroe, Robert Marc Chemers, and Robert J. Franco, all of Pretzel & Stouffer, Chartered, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The circuit court of Du Page County entered judgment on an arbitration award for $7,375 in favor of plaintiff, Ann Marie Yanan, on a personal-injury action filed against defendant Earnestine Ewing pursuant to the arbitration provisions of Supreme Court Rule 86 (113 Ill. 2d R. 86). The court subsequently entered an order for setoff against the award in the amount of plaintiff’s prior $10,000 settlement with defendant Donald Allen and a satisfaction of judgment in favor of Ewing.

On appeal, plaintiff contends that the setoff was improper because defendants were not responsible for one injury to plaintiff but for separate injuries.

On August 6, 1987, plaintiff was involved in an automobile accident with Allen. On December 18, 1987, plaintiff was involved in another automobile accident, this time with Ewing. Plaintiff subsequently filed a two-count complaint in arbitration against both defendants. Count I alleged that Allen’s negligence was the cause of the August 6 accident, which caused plaintiff to “suffer and experience pain, loss of income, and to expend large sums of money for medical care and treatment.” Count II alleged that Ewing’s negligence was the cause of the December 18 accident, which caused plaintiff to suffer “an aggravation of certain injuries *** sustained in an accident on August 6, 1987.” Count II further alleged that, with regard to the aggravation of injuries sustained in the second accident, “it is not possible to separate the pain, suffering, medical costs and permanent physical damage from the August 6,1987 accident.”

Plaintiff filed a disclosure statement pursuant to Supreme Court Rule 222(b). (107 Ill. 2d R. 222(b).) The disclosure statement listed plaintiff’s expenses resulting from her injuries without allocating them to either of the two accidents.

Allen filed a motion to dismiss count I of plaintiff’s complaint on the ground that the two accidents were unrelated to each other and that, therefore, the two causes of actions were improperly joined. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 405(a).) Plaintiff’s response to the motion to dismiss for misjoinder repeated the statement in count II that the second accident caused “an aggravation of [plaintiff’s] pre-existing condition and that it is not possible to separate the pain, suffering, medical costs and permanent physical damage from the August 6, 1987 accident.” Plaintiff’s response cited Denzel v. County of Cook (1978), 65 Ill. App. 3d 286, 382 N.E.2d 578, and Schwartz v. Swan (1965), 63 Ill. App. 2d 148, 211 N.E.2d 122, for the proposition that joinder is appropriate “when there is an allegation in the Complaint that there is a single indivisible injury or the aggravation of a particular injury which would justify the recognition of a substantial question of fact common to the separate defendants.”

The trial court granted Allen’s motion to dismiss and gave plaintiff leave to refile an amended complaint to “include allegation of [the] injury aggravated in Count II.” Plaintiff then filed an amended complaint specifying that the injuries aggravated by the second accident were “neck pain, neck stiffness, back pain, heavy head, pins and needles in arms and legs, numbness in fingers and loss of strength in both arms.”

Each of the defendants filed a counterclaim for contribution against the other. Prior to the arbitration hearing, plaintiff settled with Allen for $10,000, and Allen is not a party to this appeal. Plaintiff’s claim against Ewing went forward, and on January 16, 1990, the arbitration panel awarded plaintiff $6,000 for personal injuries and $1,375 for property damage.

Thereafter, Ewing did not file a notice of rejection of the award in the circuit court as provided for in Supreme Court Rule 93 (107 Ill. 2d R. 93). Instead, on January 31, 1990, Ewing filed a motion for a setoff in the circuit court. Ewing alleged that, pursuant to section 2(c) of the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 302(c)), the judgment against her should be reduced by the amount of the settlement with Allen. Ewing argued that, although plaintiff was injured in two accidents, she suffered a single, indivisible injury. Ewing argued that she and Allen were co-tort-feasors, and she contended that the setoff provisions of the Act should apply. The trial court agreed and entered an order stating, in pertinent part:

“1. The set off [sic] provisions of Ill. Rev. Stat. ch. 70, par. 302(c) are applicable to this action, and pursuant to said provisions, the defendant Ewing is hereby granted a set off [sic] in the sum of $10,000, representing the amount of the settlement between the plaintiff and the defendant/counterdefendant Donald Allen.
2. The aforementioned set off [sic] is hereby applied against the award entered by the arbitration panel ***.
3. Based on the foregoing, a Satisfaction of Judgement is hereby entered in favor of the defendant, Earnestine Ewing.”

Although the third paragraph of the order purported to enter a satisfaction of “judgment,” there was no judgment of record when this order was entered on February 15, 1990. On February 21, 1990, plaintiff filed a motion to enter judgment on the arbitrators’ award without any setoff in favor of Ewing. An order entering judgment on the arbitrators’ award was eventually entered on February 27, 1990. The order entering judgment on the award noted that 30 days had passed since the arbitrators’ award was entered and that a notice of rejection of the award had not been filed. The court thus entered judgment in favor of plaintiff in the amount of $7,375 subject to the setoff order of February 15.

Pursuant to the Contribution Act, where two or more persons “are subject to liability in tort arising out of the same injury,” there is a right of contribution among them. (Ill. Rev. Stat. 1987, ch. 70, par. 302(a).) It is not necessary that tort-feasors be joint in the strict sense, that their tortious acts be simultaneous, or that they act in concert before the Contribution Act will apply. (Morgan v. Kirk Brothers, Inc. (1982), 111 Ill. App. 3d 914, 918, 444 N.E.2d 504; see also Doyle v. Rhodes (1984), 101 Ill. 2d 1, 12, 461 N.E.2d 382.) The only apparent requirement for application of the Contribution Act is that the plaintiff’s recovery be based on the same injury to person or property. (Doyle, 101 Ill. 2d at 11-12, 461 N.E.2d at 387.) When the Contribution Act does apply, a settlement between one tort-feasor and the plaintiff will result in an equal reduction, or setoff, in the amount of any judgment entered against a nonsettling tort-feasor. Ill. Rev. Stat. 1987, ch. 70, par. 302(c).

Plaintiff contends that she suffered separate injuries at the hands of defendants. Therefore, plaintiff argues, the setoff provision of the Contribution Act does not apply, and the settlement with Allen could have no impact on the judgment against, Ewing.

Ewing, on the other hand, insists that plaintiff’s complaint as well as her response to Allen’s motion to dismiss make it clear that she sought recovery for a single, indivisible injury. Ewing argues that plaintiff cannot change the theory of her case at this point just to avoid the setoff. We note that Ewing’s contention is based solely on the nature of plaintiff’s theory of recovery below and does not involve a challenge to the merits of the arbitrators’ award.

In the complaint and the amended complaint, plaintiff did not state that she suffered a single, indivisible injury; she alleged that she suffered an injury in the Allen accident and an aggravation of that injury in the Ewing accident. Although plaintiff did allege “that it is not possible to separate the pain, suffering, medical costs and permanent physical damage [caused by the December 18 accident] from the August 6, 1987 accident,” we do not interpret plaintiff’s admission that she cannot allocate the damages between the two defendants as a binding admission that she suffered a single, indivisible injury. At most, this allegation appears to have been made to support joinder of the two causes of action. A plaintiff may complain of “one pain” for purposes of joinder and still consistently maintain that the pain was the result of “two injuries.” Wheeler v. Roselawn Memory Gardens (1989), 188 Ill. App. 3d 193, 200-01, 543 N.E.2d 1328.

Ewing places great emphasis on the reference to Denzel v. County of Cook (1978), 65 Ill. App. 3d 286, 382 N.E.2d 578, made in plaintiff’s response to defendant’s motion to dismiss count I of the complaint based on alleged misjoinder. Ewing interprets the reference to Denzel as an admission by plaintiff that she suffered a single, indivisible injury. We disagree. Denzel simply refers to two separate situations where joinder of separate causes is permissible: (1) where the separate acts of more than one defendant combine to produce a single, indivisible injury, or (2) where one defendant causes an injury and the second defendant later causes an aggravation of that injury. (65 Ill. App. 3d at 288-89, 382 N.E.2d at 581.) Reliance on this rule is not an admission by plaintiff that her case falls into the first category, especially in light of her specific allegations concerning injury and subsequent aggravation.

Ewing also points out that plaintiff filed only one disclosure statement and did not allocate the damages between the two accidents. However, plaintiff alleged in the complaint that she could not separate the damages and asked the court to allocate the damages between defendants. Further, nothing in Supreme Court Rule 222(b) (107 Ill. 2d R. 222(b)), which governs disclosure statements in mandatory arbitration cases, requires a breakdown of the damages between the various defendants. Finally, even if the disclosure statement was lacking, an inadequate disclosure statement does not transform plaintiff’s allegation that she suffered an injury and a later aggravation of that injury into an admission that she suffered a single, indivisible injury.

We conclude that plaintiff did not allege or admit that she suffered a single, indivisible injury. Plaintiff alleged that she was injured in two separate and unrelated accidents occurring more than four months apart. She alleged that in both accidents she suffered injury to the same part of the body. Clearly, if plaintiff had been injured in different parts of the body in the two accidents, there could be no claim that she suffered one indivisible injury. The fact that plaintiff alleged that she was injured twice in the same part of the body will not transform two injuries into one. (Wheeler, 188 Ill. App. 3d at 200-01, 543 N.E.2d at 1333.) Where a party negligently aggravates a preexisting injury caused by another’s negligence, he has committed a tort that is separate and distinct from the tort committed by the first wrongdoer (Cram v. Showalter (1986), 140 Ill. App. 3d 1068, 1072, 489 N.E.2d 892), and the injuries inflicted by each are separate and distinct injuries (see Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 429-30, 328 N.E.2d 301). Although plaintiff alleged that she was initially injured by Allen, she alleged that Ewing’s negligence aggravated the injury; it is the aggravation, the change in the nature of the injury or the increase in the pain, as distinguished from the original injury, for which Ewing is liable.

Because the alleged injuries upon which plaintiff sought recovery were separate and distinct injuries, the setoff provision of the Contribution Act does not apply. (Wheeler, 188 Ill. App. 3d at 200-01, 543 N.E.2d at 1333.) Although Ewing relies on Nguyen v. Tilwalli (1986), 144 Ill. App. 3d 968, 495 N.E.2d 630, for application of a setoff under the Contribution Act, that case is inapposite as there was no question but that only one, indivisible injury to the plaintiff resulted from the tort-feasors’ conduct. (144 Ill. App. 3d at 972, 495 N.E.2d at 632.) The settlement with Allen compensated plaintiff only for the injury caused by Allen. The question before the arbitrators was whether and to what extent Ewing’s negligence caused an aggravation of the original injury, and their award compensated plaintiff only for the damage Ewing inflicted.

Because we have concluded that setoff was inappropriate, the judgment of the circuit court of Du Page County granting a setoff must be reversed, and the circuit court is directed to vacate the satisfaction of judgment entered in favor of Ewing and to enter judgment on the arbitrators’ award.

We note that the parties on appeal have briefly speculated as to what effect our reversal will have on Ewing’s right to reject the arbitrators’ award despite her failure to file a notice of rejection within 30 days of the filing of the award pursuant to Supreme Court Rule 93 (107 Ill. 2d R. 93). As noted above, however, the final judgment entered in this cause was the trial court’s order of February 27, 1990, entering judgment on the arbitrators’ award. That order noted that no notice of rejection of the arbitrators’ award had been filed within 30 days of the filing of the award. Thus, by failing to file a notice of rejection of the award within the prescribed time period, Ewing has waived her right to proceed to trial on plaintiff’s complaint. Ewing could have rejected the award while raising the question of setoff alternatively if she had wished to preserve both bases of opposition to plaintiff’s claim.

The judgment of the circuit court of Du Page County granting a setoff is reversed, and the court is directed to vacate the satisfaction of judgment entered in favor of Ewing. The circuit court is further directed to enter judgment on the arbitrators’ award in favor of plaintiff in the amount of $7,375 plus costs.

Reversed and remanded with directions.

McLAREN and GEIGER, JJ., concur.