author: JUSTICE WOODWARD

text:
    ELAINE ROSENBERG, Plaintiff-Appellant, v. JERALD MILLER, Defendant-Appellee.
    Second District
    No. 2—92—0700
    Opinion filed July 23, 1993.

      Susan M. Lampert, of Rosenberg & Rosenberg, P.C., of Chicago (Anthony J. Basile, of counsel), for appellant.
    Michael J. Cucco and Lynn D. Dowd, both of Cassiday, Schade & Gloor, of Chicago (Morgan A. Milne, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Elaine Rosenberg, filed a medical malpractice claim against defendant, Dr. Jerald Miller, a periodontist. Plaintiff contended that defendant’s failure to diagnose an infected and impacted wisdom tooth had caused paresthesia (numbness) in the lower right side of her face. The trial court granted defendant’s motion for summary judgment. Plaintiff appeals, arguing that the trial court erred in granting defendant’s motion for summary judgment and that the trial court erred in finding plaintiff’s expert witness was not qualified to testify as to the applicable standard of care.

The depositions of dentists who provided treatment to plaintiff serve as the evidentiary basis of the appeal. Between 1966 and 1991, plaintiff was treated by four dentists: Drs. Shapiro, Lubar, Gaule and Volk. Dr. Abraham Shapiro testified that he first saw plaintiff on January 20, 1966, at which time he took full mouth X rays of plaintiff. These X rays showed that tooth No. 32 (a wisdom tooth) was impacted. Dr. Shapiro did not find this significant, as many people have impacted wisdom teeth which are not bothering them. In April 1973, Dr. Shapiro incised the tooth immediately adjacent to and in front of tooth No. 32, so that it could drain. Plaintiff was given antibiotics to reduce infection.

In June 1979, X rays taken by Dr. Shapiro showed that claimant’s No. 32 tooth was completely impacted. Dr. Shapiro noted in his records that plaintiff was referred to Dr. Robinson, an oral surgeon, for treatment of the impacted tooth. He had no knowledge of whether plaintiff went to Dr. Robinson for treatment. In the three years following this June 1979 appointment, Dr. Shapiro saw claimant six times. In or about March 1982, he received a full set of X rays from defendant. In reviewing plaintiff’s X rays, Dr. Shapiro could see that tooth No. 32 had become more visible and that it had become encapsulated. Dr. Shapiro last treated plaintiff in 1982.

Dr. Jeffrey Gaule testified that he was a general dentist, licensed to practice dentistry since 1980. He stated that periodontists specialize in diseases and treatments of the gums and the supporting bones. To become a periodontist requires several years of post-graduate education. A periodontist is qualified to do general dentistry, but normally elects not to do so. Dr. Gaule first saw plaintiff in June 1983. At that initial examination, plaintiff had no specific dental complaints regarding her wisdom teeth. Dr. Gaule was not certain if plaintiff had been referred to him by another dentist. He did not take X rays of plaintiff’s mouth on this first visit. Dr. Gaule stated that it was a common practice not to take X rays if a patient has current X rays from another dentist. Over a three-year period, he saw plaintiff nine times but never took X rays of her mouth. Dr. Gaule never worked on tooth No. 32, and plaintiff never made any complaints about this tooth.

On August 9, 1984, defendant sent Dr. Gaule a letter stating that tooth No. 19 needed work. Apparently, that was the first time Dr. Gaule knew that plaintiff was being treated by defendant. Dr. Gaule never received X rays from defendant, nor did he request them. In his records pertaining to plaintiff, he had one X ray. Dr. Gaule did not know how he obtained this X ray.

On cross-examination, Dr. Gaule stated that he never saw Dr. Shapiro’s records of plaintiff. During his initial examination of plaintiff, he performed both intra-oral and extra-oral exams. He did not take X rays because plaintiff said she would provide a set of recent X rays. He did not check plaintiff’s wisdom teeth and was not aware of the presence of any impacted wisdom teeth. Dr. Gaule never discussed plaintiff’s wisdom teeth with her.

In his evidence deposition, Dr. Richard Volk testified that in 1979 he was licensed to practice dentistry in Illinois. He is a general dentist, who refers periodontal work to a number of specialists. On February 20, 1987, plaintiff, whose husband was a patient of Dr. Volk’s, was first seen by Dr. Volk. Prior to this examination, defendant had told plaintiff that she needed root canal work to drain pus at tooth No. 31. At this initial examination, plaintiff brought a single X ray taken by defendant. Dr. Volk did not know why she did not return to Dr. Gaule for further dental work. On this date, Dr. Volk took full mouth X rays of plaintiff. Upon reviewing same, Dr. Volk concluded that he was unable to provide treatment to plaintiff, whose condition exceeded his expertise. Specifically, Dr. Volk stated:

“Because she had a wisdom tooth growing through the angle of the ramus, there was a huge [cyst] in the area, the pus was draining out from the distal of No. 31 and because of the [cyst] or the black space in that area showing me that there is tremendous amount of bone loss, at any time she could have a fracture of the jaw and I don’t want an endodontist or root canal specialist *** to start playing with the root canal when there was such a severity the [plaintiff] didn’t seem to know about and nobody seemed to bring it up.”

Dr. Volk described to plaintiff the seriousness of the situation, explaining that a mere root canal procedure would not suffice. He referred her to an oral surgeon, Dr. Robert Lubar. Following surgery performed by Dr. Lubar in March 1987, Dr. Volk saw plaintiff a number of times for general dentistry purposes. As of his deposition, he had last seen plaintiff on November 11, 1989. At that time, she was complaining of paresthesia (loss of sensation to sensory nerves) on the lower right side of her face, which caused lack of feeling and involuntary drooling out of the right corner of her mouth.

When asked about defendant’s treatment of plaintiff, Dr. Volk offered the following criticisms. First, he opined that defendant failed to read properly the X rays so that he did not diagnose the pathology related to tooth No. 32. This failure to diagnose occurred at two distinct points in defendant’s treatment of plaintiff. First, defendant took full mouth X rays of plaintiff in March 1982. He failed to see a cyst approximately five millimeters in size around the base of tooth No. 32. In 1987, defendant again took X rays of plaintiff’s mouth and gave one of the X rays to plaintiff to take to Dr. Volk. This X ray showed that the cyst was about 15 times larger than it was in March 1982. Prior to plaintiff’s seeing Dr. Volk, defendant told plaintiff that tooth No. 31 needed a root canal operation. In actuality, tooth No. 32 was the infected tooth, and it required a much more serious procedure than a root canal. If defendant had made a proper diagnosis of plaintiff’s condition, it would have appeared in defendant’s records.

Dr. Volk stated that plaintiff’s condition was obvious and that any dentist, a general practitioner or specialist, should have picked it up from the X rays taken in March 1982. Having failed to make a proper diagnosis based on the X rays, defendant did not inform plaintiff of her situation and failed to make a timely referral to a proper dental specialist.

Further, as a result of his failure to read the dental X rays, defendant failed to prevent the increase in the cyst from 5 millimeters in March 1982 to 75 millimeters in 1987.

Dr. Volk concluded that defendant’s treatment of plaintiff regarding the cyst at tooth No. 32 did not meet the applicable standard of care. In so finding, Dr. Volk stated that defendant’s dental speciality did not insulate him from the requirement of correctly reading a patient’s X rays for abnormalities and making appropriate referrals.

Further, when asked what might have caused plaintiff’s paresthesia, Dr. Volk stated:

“Possibly when you left the tooth over — I am just looking at the X-rays from ’82 to ’87, the [cyst] or the abscess continued to grow and eat away at the bone. Upon the removal of the tooth there could be damage to the interior alveolar nerve or to the surrounding bone areas and that could possibly lead to paresthesia, and the longer you wait possibly the more your chances are.”

Dr. Robert Lubar testified that he first examined plaintiff on March 3, 1987. X rays demonstrated “an impacted wisdom tooth which was displaced interiorly toward the inferior border of the mandible with a radiolucent area surrounding [tooth No. 32].” Also, Dr. Lubar was concerned about the potentiality of plaintiff pathologically fracturing her mandible. He informed plaintiff that an operation on the tooth could result in paresthesia and/or a fracture of the mandible. On March 4, 1987, he operated on plaintiff, removing both teeth Nos. 31 and 32. Further, he extricated a cyst located at tooth No. 32.

Dr. Lubar described the cyst as a “sac that’s filled with fluid and it is lined by an epithelial tissue that has the potential to grow over a period of time and displace normal anatomical structures in its path.” If left unchecked, a cyst will destroy the underlying bone to make room for its own expansion. The cyst was initially formed due to the breakdown of the growth capsule surrounding tooth No. 32. The cyst removed from plaintiff’s mouth was approximately an inch and a quarter across.

At some point following the surgery, plaintiff developed paresthesia. Dr. Lubar first knew of this condition when plaintiff returned to him for treatment in November 1991. At that time, plaintiff also was experiencing what she described as movement of her teeth. Dr. Lubar performed a clinical neurological test on plaintiff and determined that she had paresthesia of the right inferior alveolar nerve. He was not aware of any conditions occurring between the surgery performed in 1987 and the 1991 examination which would have caused plaintiff’s paresthesia.

When asked whether the failure to remove the tooth and cyst in 1982 caused plaintiff’s paresthesia, Dr. Lubar answered as follows:

“The position of that wisdom tooth was such that reasonable surgery could not have avoided the paresthesia. God positioned that wisdom tooth at the inferior border of the mandible or at some height in the mandible and it may have been moved lower because of the cyst over a period of time. But the removal of that cyst and tooth was going to create a paresthesia no matter when it was done.”

He then conceded that the development of the cyst between 1982 and 1987 may have had something to do with plaintiff’s paresthesia. He further admitted that the risk of paresthesia was heightened by the cyst’s size.

Dr. Lubar was unable to read the X rays taken by defendant in 1982 so that he could definitely discern the cyst’s dimensions. Dr. Lu-bar pointed out that it would have been prudent if, in 1982, defendant would have taken panaflex X rays of plaintiff’s mouth. These X rays are “survey film[s] of the entire maxillar and mandible which would show the teeth and all the surrounding bone areas.” Finally, Dr. Lu-bar testified that any licensed dentist can read an X ray.

Plaintiff first argues that the trial court erred in finding that her expert witness, Dr. Richard Volk, was not qualified to testify regarding the applicable standard of dental care. Defendant maintains that a periodontist’s care cannot be evaluated by a general dentist.

To establish negligent medical malpractice, the plaintiff must prove the proper standard of care by which to measure the defendant practitioner’s conduct, a negligent breach of that standard, and a resulting injury proximately caused by practitioner’s lack of skill or care. (Gorman v. Shu-Fang Chen, M.D., Ltd. (1992), 231 Ill. App. 3d 982.) Except where negligence is so grossly apparent or within the everyday knowledge of a lay person, expert testimony is required to establish the standard of care applicable to the defendant practitioner and a breach of that standard. Gorman, 231 Ill. App. 3d at 986.

Section 8 — 2501 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 8—2501) states the qualifications for expert witnesses in medical malpractice actions. Section 8 — 2501 provides:

“In any case in which the standard of care given by a medical profession is at issue, the court shall apply the following standards to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care.
(a) Relationship of the medical specialties of the witness to the medical problem or problems and the type of treatment administered in the case;
(b) Whether the witness has devoted a substantial portion of his or her time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains;
(c) whether the witness is licensed in the same profession as the defendant; and
(d) whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in this State.” (Ill. Rev. Stat. 1989, ch. 110, par. 8-2501.)

The determination of whether a licensed physician is qualified to testify as a medical expert in a malpractice action is a matter resting within the sound discretion of the trial court. Smock v. Hale (1990), 197 Ill. App. 3d 732, 739.

The thrust of Dr. Volk’s testimony is that defendant failed to read properly the X rays taken in 1982. If defendant had made a correct reading of the 1982 X ray, he would have noted a pathological condition at tooth No. 32. Having failed to make a proper reading, defendant did not make a prompt referral to an oral surgeon for the removal of the impacted tooth and the cyst which had formed at its base. Dr. Volk stated that all dentists, or those having a specialty, must be able to read accurately X rays and, if necessary, make referrals to the proper dental specialist based on those readings. Dr. Lubar echoed this view when he testified that any licensed dentist can read X rays.

In support of her argument, plaintiff cites Gorman v. Shu-Fang Chen, M.D., Ltd. (1992), 231 Ill. App. 3d 982, and Petkus v. Girzadas (1988), 177 Ill. App. 3d 323. Though both of these cases dealt with medical rather than dental treatment, they provide sufficient guidance to this court.

In Gorman, a medical malpractice case against an orthopedic surgeon, the issue was whether a plastic surgeon was competent to testify to minimum standards of general medical practice in the absence of his familiarity with the standards of specialized orthopedic care. The Gorman defendant allegedly failed to diagnose plaintiff’s medical condition (a fractured jaw) and to call in the appropriate specialist, which resulted in plaintiff undergoing extensive surgery. The Gorman court held that the plastic surgeon was competent to testify as to the applicable standard of care. The court found that the proposed expert, as a surgeon, had training and experience in treatment of fractures of the jaw and that “[his] educational and employment background insured his familiarity with the medical issues involved in this action and qualified him to testify under section 8 — 2501.” Gorman, 231 Ill. App. 3d at 988.

The Gorman court relied heavily on Petkus v. Girzadas (1988), 177 Ill. App. 3d 323. In Petkus, plaintiff’s expert was a cardiologist, who testified that defendant’s post-operative treatment of the decedent violated the applicable standard of care. The defendant orthopedic surgeon contended that the plaintiff’s expert could not provide the requisite expert opinion of an orthopedic surgeon’s conduct. In deciding this issue, the Petkus court adroitly observed:

“Decedent died of congestive heart failure, not a broken leg. Defendants’ skills, experience or knowledge as orthopedic surgeons are not relevant. Defendants’ diagnosis or surgical treatment of decedent is not at issue. We are faced only with the narrow question of the competency of an expert witness to testify to minimum standards of general medical practice in the absence of familiarity with the standards of specialized orthopedic care. The expert’s testimony should not be excluded where the standards to which he proposes to testify are minimum standards applicable to any physician rendering post-operative care to a cardiac patient. The facts sufficiently demonstrate that the standard of practice of such a physician is within [plaintiff’s expert’s] scope of knowledge.” (Emphasis in original.) Petkus, 177 Ill. App. 3d at 328-29.

Here, similar to Gorman and Petkus, the standard of care relates to general dental practice rather than defendant’s speciality of periodontistry. Both Dr. Lubar and Dr. Volk stated that reading X rays is a matter of general dentistry. At issue is whether defendant negligently read the X rays taken of plaintiff in 1982 and whether defendant was negligent in failing to refer plaintiff to an oral surgeon for removal of tooth No. 32 and the cyst at its base. There is no dispute regarding defendant’s periodontal treatment of plaintiff’s gums.

We find that Dr. Volk met the applicable standards set forth in section 8 — 2501. Consequently, we hold that the circuit court erred in ruling that Dr. Volk was not competent to testify regarding the applicable standard of care.

The final issue before this court is whether the trial court erred in granting defendant’s motion for summary judgment on the issue of causation.

In Purtill v. Hess (1986), 111 Ill. 2d 229, our supreme court stated:

“Because the purpose of a summary judgment proceeding is to determine whether there are any genuine issues of triable fact [citation], a motion for summary judgment should be granted only when ‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ [Citations.] While use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit [citation], it is a drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt.” (Purtill, 111 Ill. 2d at 240.)

Moreover, in Carter v. Dunlop (1985), 138 Ill. App. 3d 58, this court stated:

“[Pjarties opposing summary judgment are not required to prove their case at the summary judgment stage, [but] they must provide a factual basis which would arguably entitle them to judgment. [Citation.] On a defendant’s motion for summary judgment, plaintiff has an affirmative duty to bring forth all facts and evidence of a cognizable cause of action. [Citation.] Summary judgment is [only] appropriate where purported issues of material fact are not further supported by evidentiary facts or affidavits.” (Carter, 138 Ill. App. 3d at 69.)

Further, close questions on disputed issues should not be decided as a matter of law but are best left for juries. Pruitt v. Schultz (1992), 235 Ill. App. 3d 934.

Defendant essentially argues that in this summary judgment proceeding plaintiff has the burden of proving causation by a preponderance of the evidence. That is not the standard; neither side has a burden of proof in a motion for summary judgment. Rather, as stated above, plaintiff must provide a factual basis which arguably entitles her to judgment.

In the instant appeal, the depositions of Drs. Volk and Lubar form the basis of a cognizable cause of action. Dr. Volk opined that defendant had breached the applicable standard of dental care by failing to read properly the X rays taken in March 1982 and, further, failing to refer plaintiff to an oral surgeon for the removal of tooth No. 32 and the cyst (then five centimeters in size) at the base of the tooth. Dr. Volk stated that the delay in removing the tooth and cyst could possibly have led to plaintiff’s paresthesia. Also, Dr. Lubar, whose testimony is admittedly contradictory, stated that plaintiff’s paresthesia could have been related to the size of the cyst (an inch and a quarter) in 1987. Thus, there is evidence supporting plaintiff’s contention that defendant’s failure to diagnose her condition in 1982 and to make a proper referral caused her paresthesia.

We find that this is a close issue which should not be decided as a matter of law; it is best left for the trier of fact to decide.

For the foregoing reason, we reverse the judgment of the circuit court and remand this cause for further proceedings consistent with this opinion.

Reversed and remanded with directions.

GEIGER and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    DAVID E. ZINK, Plaintiff-Appellant, v. MAPLE INVESTMENT AND DEVELOPMENT CORPORATION, Defendant-Appellee.
    Second District
    No. 2—92—0798
    Opinion filed August 2, 1993.

      Robert R. Verchota and David Drenk, both of Donovan & Roberts, P.C., of Wheaton, for appellant.
    James G. Bauer, of Bauer & Hotte, P.C., of Elmhurst, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, David E. Zink, filed suit against defendant, Maple Investment and Development Corporation, to recover commissions allegedly due and owing pursuant to a real estate contract. Plaintiff appeals from an order entering judgment in favor of defendant. For the following reasons, we reverse and remand.

Defendant was a real estate development company and licensed real estate broker. Plaintiff worked as an independent real estate broker and project manager for defendant from 1975 until July 15, 1990. Plaintiff’s business relationship with defendant was governed by an agreement which provided that the “usual and customary commissions” would be charged for services performed by plaintiff. The agreement further stated as follows:

“When the Salesman [Zink] shall perform any service hereunder, whereby a commission is earned, said commission shall, when collected, be divided between the Broker and Salesman in accordance with office rules and regulations.
The division and distribtuion [sic] of the earned commission as set out in office rules and regulations which may be paid to or collected by said Broker, shall take place as soon as practicable after collection of such commissions from the party or parties for whom the services may have been performed.”

In April 1988, James Bell, president of defendant corporation and 40% beneficial owner of a parcel of unimproved real estate located in Woodridge, Illinois, executed a listing agreement which gave defendant the exclusive right to sell or offer the property for sale. Although plaintiff did not sign the agreement, he is designated as the sales representative on this particular parcel of property. Commissions were contemplated in the agreement as follows:

“This exclusive right to sell shall continue, as irrevocable, for the period of 180 days from and after the date hereof. If any sale or exchange is made by you or by myself, or by anyone else during the time period herein fixed or any continuance thereof, or is sold within 180 days after the termination of this agreement to anyone with whom you have had negotiations, I hereby agree to pay you the commission on the full sale price as per reverse side hereof. A commission shall be deemed to have been earned at such time as a sales contract or exchange contract is executed and all contingencies are met, or an option has been exercised involving the subject property. Said commission shall be paid at the time of closing or settlement. If there is a default of the contract of sale involving the subject property, then the commission shall be paid following the default. The real estate herein is unimproved property for purposes of the applicable commission schedule on the reverse side. You shall have the privilege of purchasing this property during said period and any continuance thereof, if you so desire, and you may deduct the agreed commission from the purchase price.”

The reverse side of the agreement provided for commission on unimproved property at a rate of “10% dp to $100,000 plus 7% on the next $100,000, plus 5% on the selling price over $200,000” with a minimum commission of $1,000. According to the agreement, commissions were due and payable by defendant to the salesman on consummation of the sale.

In July 1988, a grant of option was executed by the trustee, as seller, giving James P. Avgeris a 60-day option to purchase the property for $2,286,170.37. The option contract allowed Avgeris to extend the option for six additional 30-day periods. If the option was exercised, the option deposits would be applied to the purchase price. Each of the extensions provided for was exercised by Avgeris and the option deposits were paid to the seller.

An agreement to extend the option was executed July 26, 1988, granting Avgeris three additional 30-day extensions for $10,000 each. The final extension period had an expiration date of June 22, 1989. In June 1989, the trustee, as seller, and Avgeris, purchaser, executed a real estate sales contract for the property at a purchase price of $2,435,463. Closing was scheduled for December 15, 1989. Nevertheless, in September 1989, Avgeris and the trustee executed an addendum to the real estate sales contract. The addendum extended the closing date to April 2, 1990, and required Avgeris to deposit $105,000 with the seller. The seller would retain $15,000 per month commencing in September 1989 until the closing occurred. Avgeris was able to cancel the contract provided he gave 60 days’ notice. In the event that Avgeris cancelled the contract, the seller would retain the extension deposit at the rate of $15,000 per month.

Avgeris paid each extension deposit through April 2, 1990. The sellers received approximately $189,000 in escrow, option, and extension deposits. However, Avgeris’ option expired and no closing on the contract occurred on or before April 2, 1990.

On April 5, 1990, a second listing agreement on the property was executed by Bell as agent of the beneficial owners of the property. This agreement was approved and accepted by plaintiff as sales representative of defendant. Plaintiff continued his association with defendant until its office closed on July 15, 1990. At this time, plaintiff inquired about his commission in Avgeris’ defaulted contract. Defendant refused to pay plaintiff any commission. Plaintiff filed suit against defendant to collect $70,809.23 in commission resulting from the defaulted option contract. Following a bench trial, the court entered judgment in defendant’s favor, and plaintiff appealed.

At issue is whether defendant owes a commission to plaintiff pursuant to the contract for sale between the trustee as seller and Avgeris. Although Avgeris did not purchase the property and there was no closing on the contract, plaintiff asserts that he is entitled to his commission.

A reviewing court will not reverse a judgment following a bench trial unless it is against the manifest weight of the evidence, meaning that the opposite conclusion is clearly evident. (Swanson v. Village of Lake in the Hills (1992), 233 Ill. App. 3d 58, 64.) A judgment is against the manifest weight of the evidence when the appellant presents evidence that is so strong and convincing that it completely overcomes the evidence and presumptions existing in the appellee’s favor. F D L Foods, Inc. v. Kokesch Trucking, Inc. (1992), 233 Ill. App. 3d 245, 252.

In this case, the listing agreement stated that the commission “shall be deemed to have been earned at such time as a sales contract *** is executed and all contingencies are met, or an option has been exercised involving the subject property.” (Emphasis added.) Plaintiff contends that his commission was earned pursuant to this language when Avgeris and the seller executed a contract for sale on the subject property. Defendant responds by asserting that plaintiff’s right to a commission is not governed by the listing agreement, as plaintiff was not a party, but by his employment agreement with defendant. According to defendant, the “usual and customary commissions” were distributed to a salesman “in accordance with office rules and regulations” and “as soon as practicable after collection of such commissions from the party or parties for whom the services may have been performed.” Since there was no closing on the contract or exercise of the option, defendant contends that plaintiff was not entitled to collect a commission.

Avgeris and the seller executed a contract for sale on the subject property in June 1989. It was not an option contract and specifically stated that Avgeris was entitled to credit option deposits previously paid against the purchase price. Defendant presented evidence that on August 16, 1989, a meeting took place between Bell, Avgeris and plaintiff. Avgeris apparently believed he was under an option contract. Notwithstanding the real estate sales contract, the parties executed an addendum to the real estate contract on September 12, 1989, which extended the closing date, required Avgeris to make a deposit of $105,000, and allowed Avgeris to cancel the contract by providing 60 days’ notice. According to defendant, the addendum transformed the sales contract back into an option contract. Since Avgeris did not exercise the option, defendant contends that plaintiff is not entitled to a commission.

Plaintiff’s right to recover his commission from defendant is governed by his employment agreement with defendant. (See Wilmette Real Estate & Management Co. v. Luvisi (1988), 172 Ill. App. 3d 232, 236.) The agreement provides that the salesman’s commission would be paid “as soon as practicable after collection of such commissions from the party or parties for whom the services may have been performed.” It does not specifically state when the commission is earned. Therefore, the settled rule governing a broker’s right to receive a commission applies.

If a real estate broker produces a purchaser, within the time limit of his authority, who is ready, willing and able to purchase the property on the terms prescribed by the seller, he is entitled to a commission even if the seller refuses to perform the contract. (Hallmark & Johnson Properties, Ltd. v. Gadea (1991), 218 Ill. App. 3d 921, 926; Wilmette Real Estate, 172 Ill. App. 3d at 236.) The purchaser procured by the broker and the seller must enter into a valid and enforceable contract on the terms proposed in the brokerage agreement. (Herb Fox, Ltd., Realtors v. Stewart (1980), 91 Ill. App. 3d 201, 203.) The sales contract must be mutually obligatory upon the seller and purchaser in order for the broker to recover the commission where the sale is not consummated. When there are contingencies in the contract which render it unenforceable by the seller, the broker is entitled to a commission only if he shows the contingencies have been met. Herb Fox, Ltd., Realtors, 91 Ill. App. 3d at 203.

Defendant circumferentially asserts that plaintiff is not entitled to a commission because the sales contract executed in June 1989 was not valid. An enforceable contract must include a meeting of the minds or mutual assent to the terms of the contract. (Academy Chicago Publishers v. Cheever (1991), 144 Ill. 2d 24, 30.) Since Avgeris stated at the August 16, 1989, meeting that he believed he was still under an option contract, defendant contends that there was no mutual assent to the terms of the contract executed in June 1989. It is defendant’s contention that the addendum created a valid and enforceable option contract where no contract previously existed.

The unilateral mistake of one party to a contract may not be relied upon to relieve that party from the obligations of the contract where the party’s own negligence and lack of prudence resulted in the mistake. (Harney-Morgan Chevrolet Olds Co. v. Rabin (1983), 118 Ill. App. 3d 602, 606.) Our review of the sales contract reveals that its terms are not so unclear that Avgeris was reasonably mistaken as to its terms. The contract executed in June 1989 is a standard real estate sales contract. It names a definite closing date and does not refer in any way to an option contract, aside from crediting previous option deposits paid against the final sales price. For these reasons, defendant has failed to sustain its argument of proving a lack of mutual assent to the terms of the contract due to Avgeris’ unilateral mistake.

The manifest weight of the evidence in this case illustrates that plaintiff earned a commission pursuant to the terms of the listing agreement when the contract for sale was executed in June 1989. Once the real estate sales contract was executed, the prior unilateral option contract between Avgeris and the sellers was converted to a bilateral contract. (See Prime Group, Inc. v. Northern Trust Co. (1991), 215 Ill. App. 3d 1065, 1070.) Contrary to defendant’s contention, the subsequent addendum did not operate as a repudiation of the prior agreement which transformed the bilateral sales contract back into an option contract. (See Prime Group, 215 Ill. App. 3d at 1071. Contra Joseph A. Thorsen Co. v. Husted (1977), 50 Ill. App. 3d 1043, 1046.) Rather, the addendum extended the closing date in consideration of payment by Avgeris. Although the addendum allowed Avgeris to notify the seller that he was cancelling the addendum in order to obtain a refund of the unapplied extension deposit, it did not grant Avgeris the right to a refund of the sums paid under the option contract or the earnest money paid under the real estate contract. Once a seller enters into an enforceable contract of sale with a purchaser procured by a broker, the readiness, willingness, and ability of the purchaser is no longer open to question and the broker’s right to compensation accrues whether or not the sale is completed. (Hallmark & Johnson Properties, Ltd. v. Taylor (1990), 201 Ill. App. 3d 512, 517.) When the sales contract was signed, plaintiff’s right to a commission accrued. Pursuant to the terms of plaintiff’s employment agreement, defendant was under a duty to attempt to collect the commission from the seller. The manifest weight of the evidence illustrates that defendant breached this duty by failing to attempt to collect the commission from the seller. For these reasons, the judgment of the trial court is against the manifest weight of the evidence.

As an affirmative defense, defendant asserts that plaintiff’s claim is barred by the doctrines of estoppel and laches. Estoppel arises when a party, by his words or conduct, intentionally or through culpable negligence, induces reasonable reliance by another on his representations and thus leads the other, as a result of that reliance, to change his position to his detriment. (Byron Community Unit School District No. 226 v. Dunham-Bush, Inc. (1991), 215 Ill. App. 3d 343, 348.) While the intent to mislead is not necessary, reliance by the opposing party must be reasonable. (Wilson v. Illinois Benedictine College (1983), 112 Ill. App. 3d 932, 939-40.) In August 1989, a meeting took place between Bell, Avgeris, and plaintiff. The parties discussed the proposed addendum to the sales contract. Defendant contends that plaintiff had an obligation to inquire how the addendum would affect his commission and that his failure to do so bars recovery under the doctrines of laches and estoppel. We disagree.

First, we disagree that plaintiff had an obligation to inquire because plaintiff was entitled to a commission regardless of what transpired at the meeting. Second, plaintiff’s conduct at the meeting did not induce defendant to reasonably rely to its detriment. Assuming arguendo plaintiff had a duty to inquire about his commission, there is absolutely no evidence that the defendant would have done anything different but for plaintiff’s conduct. The alleged detriment defendant claims to have suffered is the execution of the addendum. As we previously discussed, the addendum did not transform the contract back into an option. Execution of the addendum did not result in a detriment to defendant, since defendant, as well as plaintiff, remained entitled to a commission from the sellers, and Bell on behalf of the sellers did not object to the extension. There was neither any change in defendant’s position nor any detriment resulting from plaintiff’s failure to express a concern about the extension of the closing date.

Finally, defendant asserts that plaintiff is barred from bringing suit under the doctrine of laches. Laches is an equitable doctrine which bars an action if, because of an unreasonable delay in bringing suit, a party is misled or prejudiced or takes a course of action that he would not have otherwise taken. (Streams Condominium No. 3 Association v. Bosgraf (1991), 219 Ill. App. 3d 1010, 1016.) Since plaintiff failed to assert his right to the commission until after defendant’s office closed on June 15, 1990, defendant contends his action is barred under the doctrine of laches. We disagree.

Plaintiff acted in accordance with his contract with defendant. Plaintiff’s right to a commission accrued in June 1989, when the sales contract was executed. He acted reasonably in assuming that defendant would pay its commission “as soon as practicable after collection” from the sellers. Waiting from April 2, 1990, the scheduled closing date, until the office closed on June 15, 1990 to assert his right was not an unreasonable delay. Furthermore, defendant has not demonstrated that the delay operated to its detriment.

We determine that the manifest weight of the evidence fails to sustain defendant’s affirmative defenses. We reverse the judgment of the circuit court of Du Page County and remand the cause for a determination of the amount of commission owed and for further proceedings consistent with this opinion.

Reversed and remanded

GEIGER and QUETSCH, JJ., concur.


author: PRESIDING JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. SYLVIA HAVEN et al., Defendants-Appellees.
    First District (5th Division)
    Nos. 1—90—0459 through 1—90—0464 cons.
    Opinion filed March 13, 1992.

      Jack O’Malley, State’s Attorney, of Chicago (Mercer Cook, Pamela L. Gray, Deborah M. Petro, and Philip R. Viktora, Assistant State’s Attorneys, of counsel), for the People.
    Michael Null, of Chicago, for appellees.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Defendants Ava Tossi, Sylvia Haven and Susan Hughes were arrested after delivering nude performances at an adult bookstore. Defendants were charged with violations of section 11—20(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 11—20(a)(2)), obscenity, and sections 11—9(a)(1) and 11—9(a)(2) (Ill. Rev. Stat. 1989, ch. 38, pars. 11—9(a)(1), (a)(2)), public indecency. This is an appeal by the State, pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)), from the dismissal of the public indecency charges.

The parties agree on the facts as follows. Defendants are nude performers in a nonalcoholic setting. Their performances are done on a stage. Defendants perform behind glass panels, located in booths. Patrons view the performance through a glass panel activated by dropping a dollar coin into a timer box. Due to the enclosure, no physical contact between the performers and customers is possible.

Each defendant is charged by criminal complaint with two violations of the public indecency statute. One count charges a violation of section 11 — 9(a)(1) (Ill. Rev. Stat. 1989, ch. 38, par. 11—9(a)(1)) and the other charges a violation of section 11—9(a)(2) (Ill. Rev. Stat. 1989, ch. 38, par. 11—9(a)(2)). The trial court granted each of the performers’ motions to dismiss the public indecency counts. This court has consolidated the appeals by the State concerning the dismissal of the public indecency counts. The obscenity counts which the State filed against each performer remain pending in the trial court.

The State’s argument on appeal is that the circuit court erred in determining that the application of the public indecency statute to defendants’ conduct is unconstitutional because there has been no evidence, proof or agreement concerning the nature or content of the conduct performed in the nude or that defendants’ conduct was “nude dancing” implicating first amendment rights of expression. For the following reasons, we affirm the trial court’s decision to dismiss the indecency charges on the basis that the facts, as agreed to by the parties, provided the trial court with sufficient information to conclude that the public indecency statute is inapplicable to the facts in this case.

The function of a criminal charge is to advise the accused of the nature of the charge so that he may prepare his defense and to serve as a bar to a second prosecution of the same offense. (People v. Simon (1980), 91 Ill. App. 3d 667, 416 N.E.2d 285.) The State points out that in People v. Mikota (1971), 1 Ill. App. 3d 114, 273 N.E.2d 618, the court found the complaint sufficient because it charged in the language of the public indecency statute. In Mikota the defendant was charged with public indecency after exposing himself to a woman he passed on the street. That was clearly the type of conduct the indecency statute was intended to reach. The facts in the instant case are remarkably different. Although defendants here have been charged within the four corners of the indecency statute, we are entitled to look at the intent of the drafters and at the manner in which our courts have interpreted the statute in order to determine whether the statute is applicable when a nude dance is performed in front of a willing audience at a commercial establishment.

The relevant portion of the indecency statute provides as follows:

“11 — 9. Public indecency, (a) Any person of the age of 17 years and upwards who performs any of the following acts in a public place commits a public indecency:
(1) An act of sexual penetration or sexual conduct as defined in Section 12 — 12 of this Code; or
(2) A lewd exposure of the body done with intent to arouse or to satisfy the sexual desire of the person.
(b) ‘Public place’ for purposes of this Section means any place where the conduct may reasonably be expected to be viewed by others.” (Ill. Rev. Stat. 1989, ch. 38, par. 11—9.)

The legislative committee which drafted the public indecency statute expressly noted that it had deliberately decided that that particular statute should not apply to “commercial erotic displays,” and it rejected proposed language which would have extended to such displays. As originally presented by the drafting subcommittee to the joint committee, this section read:

“ ‘(3) A lewd exposure to the body done with intent to arouse or to satisfy the sexual desire of the person, or those to whom such exposure is made or both’[.] The objection raised to this subsection in this form was that the ‘audience intent’ phrase (emphasized above) could push this provision into the area of obscene acts performed not to the disturbance of, but rather to the delight of, those who witness such acts. The Joint Committee deemed it best to limit this provision to only those exposures which were shocking and disturbing to the immediate audience, leaving commercial erotic displays for separate consideration. To this effect, reference to an intent to stimulate the viewer of the lewd act was deleted. (See §11— 20(a)(4) — Obscenity, of this Code).” (Emphasis in original.) Ill. Ann. Stat., ch. 38, par. 11 — 9, Committee Comments, at 303 (Smith-Hurd 1979).

Moreover, our supreme court has recognized that the public indecency statute simply is not meant to address that conduct which may involve first amendment protection. In People v. Garrison (1980), 82 Ill. 2d 444, 412 N.E.2d 483, the court recognized that the public indecency statute applied to the defendant who was accused of standing behind a storm door of his residence and exposing himself but that the validity of the statute would be highly suspect if applied to operas, ballets, plays or other performances within the protection of the first amendment.

In the instant case, while the State complains about the trial court’s failure to hold an evidentiary hearing, the undisputed facts establish that these were “commercially erotic displays.” In Garrison and Mikota, the defendants’ conduct occurred in what was unquestionably a public place. Such was not the case here. In this case, elaborate precautions were taken in order to see that the only persons to view the erotic displays were those wishing to do so. The patrons were required to pay an admission fee of $2 to be admitted to a “booth” and then to purchase coins in order to observe the performance through a window overlooking a stage. Furthermore, there is no doubt that the activity in question was commercial. The patrons’ use of coins establishes this fact.

Accordingly, there is no need to gain additional facts regarding the specific conduct of the dancers. This is precisely the sort of performance which the legislature excluded from the coverage of the public indecency statute. Thus, the facts before the court plainly allege a “commercial erotic display,” and the public indecency statute is applicable to only those exposures which are shocking and disturbing to the immediate audience, and not those commercial erotic displays which were designed to sexually arouse or gratify the audience. For this reason, we find that the public indecency statute is simply inapplicable to the conduct here, and therefore, we need not and do not address the constitutionality of the statute. Therefore, the State’s sole remedy in this case lies in a prosecution for obscenity.

Based on the foregoing reasons, we affirm the trial court’s dismissal of the public indecency counts.

Affirmed.

LORENZ and MURRAY, JJ., concur.


author: JUSTICE EGAN

text:
    JOHN K. SCHLOSSER et al., Plaintiffs-Appellants, v. RUDOLPH O. SCHLOSSER, JR., Defendant-Appellee (Kurt Robert Schlosser et al., Intervening Petitioners-Appellees).
    First District (6th Division)
    No. 1—92—2222
    Opinion filed May 14, 1993.
    Modified on denial of rehearing July 9, 1993.

      Vincent J. Pascucci, of Pascucci & Associates, of Chicago, for appellants.
    Barry A. Feinberg and James W. Naisbitt, both of Chuhak & Tecson, P.C., of Chicago, for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiffs, John K. Schlosser and David P. Schlosser (John and David), are the nephews of the defendant, Rudolph 0. Schlosser, Jr. (Rudolph), and the sons of Frank Schlosser (Frank). Frank and Rudolph are the only children of Mildred Schlosser (Mildred). Frank is not a party to this case. Mildred created an inter vivos trust and a will in 1981. The 1981 will explicitly revokes all prior wills, disposes of Mildred’s personal property, and devises her residuary estate to the 1981 trust. Rudolph is named as the trustee of the 1981 trust, and the beneficiaries are his children. These children are the intervening petitioners in this case. Mildred died in 1985.

In November, 1986, John and David brought suit to set aside the 1981 trust, requesting that it be invalidated because Mildred did not have sufficient mental capacity to understand the nature of the trust and because the trust was executed through the undue influence of Rudolph. The plaintiffs also requested that Rudolph give an accounting. The complaint alleged that Mildred’s prior will, executed in 1976, granted John and David a share of her estate.

The 1981 trust beneficiaries, Rudolph’s children, were not named as parties and moved to intervene as defendants. The trial judge denied this motion and entered a default judgment against Rudolph. We reversed these orders and remanded the case on August 31, 1991, finding that the trust beneficiaries were necessary parties. (Schlosser v. Schlosser (1991), 218 Ill. App. 3d 943, 578 N.E.2d 1203.) We explicitly did not reach the question of John and David’s standing to bring this suit.

After remand, Rudolph and the trust beneficiaries moved to dismiss the complaint under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—619), alleging that the plaintiffs lacked standing to sue and had failed to name necessary parties, the trust beneficiaries. John and David responded to this motion by filing a section 2—616 motion (Ill. Rev. Stat. 1991, ch. 110, par. 2—616), requesting leave to amend the complaint by adding the trust beneficiaries as additional defendants.

On May 15, 1992, the trial judge heard arguments on these motions. He recognized that the plaintiffs had filed a motion to correct any problem caused by not naming the trust beneficiaries as defendants, but stated, “this Court must deny that motion in view of the fact that the plaintiffs lack standing to sue.” He continued:

“Plaintiffs argue that they have standing under the 1976 will, even though it was expressly revoked by the 1981 will. The revoked will, however, only provides the plaintiffs with a contingent remainder interest, being contingent upon their surviving their father. *** Further, the revoked will does not provide plaintiffs with a present beneficial interest in medical care, support, education and welfare payments. *** Therefore, this Court finds that the plaintiffs have no standing to bring this action [and] the complaint is dismissed.”

John and David now appeal this order.

The plaintiffs do not argue that either the 1981 will or 1981 trust gives them any interest in Mildred’s estate, but assert that they have standing to sue to invalidate the 1981 trust because of their interests under the 1976 will.

Article III of the 1976 will creates a testamentary trust, divided into two shares, for Mildred’s sons. This trust is composed of the residuary estate and the trustee is permitted to use the trust principal when necessary for Rudolph or Frank. Article III, section 1 provides:

“l.(a) Income to son. The trustee shall pay the income from a son’s trust in convenient installments, at least quarterly, to him during his lifetime.
(b) Invasion of principal. The trustee may also pay to a son such sums from principal as the trustee deems necessary or advisable from time to time for his medical care, comfortable maintenance and welfare, and for the medical care, support, education (including college and post-graduate) and welfare of any decedent of his, considering the income of each of them from all sources known to the trustee.” (Emphasis added.)

John and David first argue that they have a present beneficial interest in receiving support and money for their educations (support payments) under section 2 and section 1(b). Second, they claim that they are vested remaindermen under section 2 of article III.

In their initial brief in this court, John and David briefly mentioned the section 1 support provision, arguing that it gave them a “right” to support payments. They cited no cases in support of this argument. They now contend that their right to support payments under section 1 is subject to a condition subsequent rather than a condition precedent.

The interest created in section 1 must be construed consistently with Mildred’s intent, based on the entire will. (Dyslin v. Wolf (1950), 407 Ill. 532, 96 N.E.2d 485.) An interest is vested, rather than contingent, if it takes effect upon an event which “must happen some time.” (Emphasis added.) (Baley v. Strahan (1924), 314 Ill. 213, 219, 145 N.E. 359.) A condition precedent in a grant makes the interest contingent, due to the uncertainty that the event necessary for vesting will occur, while the mere presence of a condition subsequent does not divest an otherwise vested interest. (4 H. Horner, Homer Probate Practice & Estates §§2289.1, 2292.1, at 7, 20 (4th ed. 1991).) A case cited by John and David explains the difference between conditions precedent and subsequent: “ ‘If the conditional element is incorporated into the description of, or into the gift to, the [interest taker], then the [interest] is contingent; but if, after words giving a vested interest, a clause is added divesting it, the [interest] is vested.’ ” Baker v. Bates (1966), 76 Ill. App. 2d 30, 35-36, 221 N.E.2d 302, quoting J. Gray, The Rule Against Perpetuities §108, at 98 (4th ed. 1942).

In Maguire v. City of Macomb (1920), 293 Ill. 441, 127 N.E. 682, the court discussed this difference at length. (See also Storkan v. Ziska (1950), 406 Ill. 259, 263-66, 94 N.E.2d 185 (holding that conditional language was not incorporated into the gift itself but simply acted as a condition subsequent which could later divest the interest).) The will at issue in Maguire gave land to the City of Macomb for use as a public park. The will gave the land “subject *** to the conditions hereinafter named and set forth,” and then listed several conditions, including that the city explicitly accept the gift and use and improve the land for park purposes. (Maguire, 293 Ill. at 443.) The plaintiff, as the executor of the will, sued to clear title to this land, arguing that the conditions were conditions precedent to its title vesting in the city and had not been fulfilled. The supreme court agreed, explaining: “It requires no technical words to distinguish between conditions precedent and conditions subsequent ***,” but “[i]f the language of the whole will shows that the act on which the [interest] depends must be performed before the [interest] can vest, the conditions are precedent.” (293 Ill. at 448.) In Maguire, the court found that the acceptance of the gift and the improvement as a park were obviously intended by the grantor to be performed before the title to the land would vest in the city; because the city did not comply with all the conditions precedent, title never vested in the city and remained with the estate. See also City of Wood River v. Hart (1961), 23 Ill. 2d 119, 177 N.E.2d 173.

Here, as in Maguire, the grant of support payments takes effect only if a condition precedent is fulfilled. Although Mildred did not specifically identify any of the discretionary acts of the trustee in section 1(b) as conditions, in contrast to the Maguire grantor, the language of the will as a whole shows her intent to make the interest conditional. The condition is approval by the trustee, which may or may not occur. The trustee, in his discretion and after reviewing all available assets, must decide that John and David should be given support payments before they may be paid. John and David are not told that they have this right and that it may be altered or removed by a later condition. Instead, the will explains that they receive support only if the conditions are met.

Mildred’s intent to give a conditional right to support payments in section 1(b) is clear from the language of section 1. In section 1(a), she directed that the trustee “shall” pay the trust income to her sons. In contrast, in section 1(b) she gave the trustee discretion to make support payments, explaining that he “may” pay for support “as [he] deems advisable from time to time” but only after considering all other sources of income available to John and David. Thus, as required by Baker and Maguire, the conditions here are written into the language of the gift itself, and do not simply modify an otherwise vested grant. For these reasons, we reject the argument of John and David that the support payments authorized by section 1(b) were subject only to a condition subsequent. Therefore, we reject the plaintiffs’ argument that they had standing based on the section 1 support provision.

Additionally, we find that the plaintiffs do not have standing under any part of section 2. Section 2 of this article provides:

“At the death of a son, *** the trustee shall divide his trust, as then constituted, into separate trusts, equal in value, one for each then living child of his and one for the then living descendants, collectively, of each deceased child of his.”

Section 2 further explains:

“Each trust set aside for a living child of a son shall be held and disposed of as follows: *** the trustee shall pay to the grandchild so much or all of the income from his or her trust *** [and] such sums from the principal of his or her trust as the trustee deems necessary or advisable *** for [the grandchild’s] needs, best interests, education *** and welfare.”

Rudolph and the interveners correctly cite the rule that only “those having a beneficial interest in the subject matter and relief sought are the proper parties to sue.” (Solomon v. City of Evanston (1975), 29 Ill. App. 3d 782, 788, 331 N.E.2d 380; see also Long v. Elk Grove Village (1978), 64 Ill. App. 3d 1006, 382 N.E.2d 79; Kravitz v. County of Lake (1978), 62 Ill. App. 3d 101, 379 N.E.2d 126.) In order to have a beneficial interest sufficient to confer standing, the interest of a plaintiff under a trust must be vested. See Whalen v. Whalen (1991), 217 Ill. App. 3d 557, 559, 577 N.E.2d 859.

Under section 2, Frank and Rudolph have life estates, followed by remainders in their then-living children or the then-living descendants of their deceased children. A contingent remainder is “one limited to take effect either to an uncertain person or upon an uncertain event.” (Murphy v. Westhoff (1944), 386 Ill. 136, 142, 53 N.E.2d 931; see also Oak Park Trust & Savings Bank v. Baumann (1982), 108 Ill. App. 3d 322, 328, 438 N.E.2d 1354.) On the other hand, a remainder is vested if “the person who is to succeed to the estate in remainder is in being and is ascertained, and the event which by express limitation will terminate the proceeding estate is certain to happen.” (Dyslin v. Wolf (1950), 407 Ill. 532, 542, 96 N.E.2d 485; see also Jurgens v. Eads (1978), 67 Ill. App. 3d 52, 57, 383 N.E.2d 1003.) A vested remainderman has the right to immediate possession “whenever and however the preceding estate may determine.” (Whalen, 217 Ill. App. 3d at 559.) Though the law favors the vesting of remainder interests “at the earliest opportunity” (Whalen, 217 Ill. App. 3d at 560), the intent of the grantor must govern any will construction. In re Estate of Arnold (1986), 142 Ill. App. 3d 258, 263, 491 N.E.2d 458.

John and David argue that their section 2 interests are vested because the life estates are certain to terminate, as Rudolph and Frank are certain to die, and because they are ascertained, as they were alive when Mildred died. While the plaintiffs are correct in their argument that these facts indicate vested remainders under some circumstances (see 4 H. Homer, Homer Probate Practice & Estates §2290, at 11 (4th ed. 1990)), they ignore the “then living” language in section 2.

In fact, none of the cases cited by the plaintiffs involves a will provision similar to section 2. In Whalen, the primary case relied on by John and David, the grantor gave her husband a life estate and gave “the remaining assets in the Residuary Trust per stirpes to my children, share and share alike.” (Emphasis in original.) (Whalen, 217 Ill. App. 3d at 558.) Obviously, there is no explicit requirement of survivorship in this language. We therefore find Whalen distinguishable.

In contrast, Rudolph and the intervenors note that in Illinois, “[a] contingent remainder exists where, after a life estate, the interest is limited to certain individuals, or a class, provided they survive the life tenant.” (Emphasis added.) (4 H. Horner, Horner Probate Practice & Estates §2304, at 36 (4th ed. 1990).) This rule is directly applicable here, as are several cases discussing it.

In Bushman v. Fraser (1926), 322 Ill. 579, 153 N.E. 611, the Illinois Supreme Court held that a will giving the grantor’s wife a life estate and giving the remainder to his “then surviving children” created a contingent remainder. “Such remainder was contingent, because until the death of the [wife] it could not be known which of the children would survive her and be entitled to share in the estate.” Bushman, 322 Ill. at 585.

Similarly, in Roper v. Finney (1955), 7 Ill. 2d 487, 131 N.E.2d 106, the court held that a will giving a remainder after a life estate to the life tenant’s “child or children, or the descendants of any child or children,” existing when the life tenant died, granted a contingent remainder. The Roper court noted that “[w]ho these people would be, of course, could not be ascertained until the termination of the life estate.” (7 Ill. 2d at 490.) Further, the court explained that if survival was not a condition for receiving the remainder, the express provision for descendants of a deceased child would not be necessary, because the interest would already have vested in the deceased child and would automatically pass to the child’s descendants.

We find both of these cases controlling. Under section 2 of Mildred’s 1976 will, only “then living” grandchildren take the remainder, like the “then surviving” Bushman children. Further, as in Roper, there is a provision for the grandchildren’s descendants that would be unnecessary if the estate vested in the grandchildren as soon as Mildred died. The trial judge properly recognized that, until Frank dies, we cannot determine if John and David are “then living.” Though a court will not read words of survivorship into a will (First Galesburg National Bank & Trust Co. v. Robinson (1986), 149 Ill. App. 3d 584, 500 N.E.2d 995), we find that Mildred expressly required John and David to survive Frank here. Thus, the takers of the section 2 remainder are not yet ascertained, and John and David are not yet entitled to possession of the estate. For this reason, their remainders are contingent.

Therefore, we hold that John and David do not have standing to contest the validity of the 1981 trust or to request an accounting by Rudolph. Since the amended complaint would not have cured this fatal flaw, the judge properly refused to allow the amendment and properly granted Rudolph and the interveners’ motion to dismiss.

The judgment of the circuit court is affirmed.

Judgment affirmed.

RAKOWSKI and GIANNIS, JJ., concur.