author: JUSTICE COLWELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. 1991 CHEVROLET CAMARO, VIN 1GFP23E9ML117842, Defendant (Joseph R. Boehm, Respondent and Claimant-Appellee; Edwin R. Boehm, Respondent).
    Second District
    No. 2—91—1380
    Opinion filed September 16, 1993.

      Daniel A. Fish, State’s Attorney, of Dixon (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Rolfe F. Ehrmann, of Ehrmann, Gehlbach, Beckman & Lee, of Dixon, for appellee.
   JUSTICE COLWELL

delivered the opinion of the court:

The State appeals from the denial of its request for the forfeiture of a 1991 Chevrolet Camaro which request the State’s Attorney of Lee County brought by complaint filed February 2, 1991, pursuant to the provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 36 — 1 et seq. (now 720 ILCS 5/36 — 1 et seq. (West 1992))). The complaint alleged that the Camaro was used in the commission of a burglary and was “owned” by Edwin R. Boehm, respondent, and “titled” in the name of Joseph R. Boehm, respondent and claimant.

In their answer, Joseph and Edwin Boehm denied the State’s allegations. Joseph, Edwin’s father, filed a counterclaim alleging that he was an owner of the automobile and did not know or have reason to know that the vehicle was used in the commission of an offense, and he sought the release of the vehicle. Following a forfeiture hearing on November 14, 1991, the court denied the forfeiture in its memorandum decision and order dated November 20, 1991. The court relied on People ex rel. Barra v. Wiebler (1984), 127 Ill. App. 3d 488. The State timely appealed, and the order was stayed.

On appeal, the State essentially argues that, because Edwin exercised dominion and control over the vehicle, he, and not his father Joseph, was the true owner of the vehicle. The State therefore argues that it was error for the trial court to deny the forfeiture. We affirm.

At the hearing on November 14, 1991, Joseph testified that he was listed on the vehicle’s corrected title with his son Edwin. The 1991 Camaro was purchased on February 1, 1991, the day before the burglary took place. When Joseph received the title, he noticed that his name was not listed, and he returned to the salesman, Jim Bear-din, to have the title corrected. Joseph and Edwin had purchased the car with cash belonging to both of them. They had received the cash from insurance proceeds following the death of Edwin’s mother. It was intended that the car be used by the family. Edwin was 18 years old and was in school at the time. The application for automobile insurance listed Joseph and his wife Debra, Edwin’s stepmother, as the principal drivers of the Camaro. The insurance was purchased when the Camaro was purchased. Joseph stated that Debra was the primary driver. Edwin could use any of the vehicles when he asked permission to do so.

Joseph testified that he had no knowledge nor did he have any reason to know that Edwin would be using the Camaro in connection with a burglary. Joseph did not know that the car had been used in the burglary for quite some time afterwards when Edwin was charged with the offense. For the first two months after the purchase of the Camaro, Edwin used the Camaro as well as a Buick diesel car; Edwin was listed as the principal driver of the Buick. He could not use a third family car because it had a clutch drive.

On cross-examination, Joseph stated that the car was purchased with cash from the insurance proceeds received after the death of Edwin’s mother; the cash was deposited in a bank account. The proceeds were not restricted to the use of Edwin or designated for a particular use. Joseph had control of the funds. Joseph and Edwin looked at cars together and decided to buy the Camaro. Between February when the car was purchased and August when it was seized, Joseph used it about four times; Debra used the car whenever she needed to. Joseph usually drove his truck. Joseph acknowledged that Edwin had told Detective Gardner on August 9, 1991, that the title was put in Joseph’s name for insurance purposes. However, Joseph pointed out that Edwin could drive the car as he was also insured, but Edwin was not the primary driver. Edwin was not arrested the day after the burglary, and Joseph only became aware of Edwin’s arrest two months later.

The insurance proceeds were the result of a settlement from the driver of a car involved in an accident which resulted in the death of Edwin’s mother. The insurance check was made out to both Joseph and Edwin, and the funds were placed in a Rochelle bank account in both names; Joseph commingled his own funds with the proceeds in the account.

The State called Detective Steve Gardner, who testified that he was involved in seizing the car in August 1991. In performing an inventory of the car, Gardner found items which he believed belonged to Edwin, namely, a quantity of cassette tapes, a black leather coat, and a “fuzz buster.” Over the claimant’s hearsay objection, Gardner was allowed to state that Edwin had told Gardner the items were Edwin’s. Gardner also testified that, in a conversation between Gardner and Edwin on August 9, 1991, Edwin said that he owned the car and that the father’s name was on the registration and title only for insurance purposes. In the statement, which was read into the record, Edwin also said he was the exclusive operator of the vehicle.

On cross-examination, Gardner admitted that the items did not have Edwin’s name on them and that Edwin made the statements as part of an interrogation regarding the factual circumstances of the burglary.

In rebuttal, Edwin testified that he was responding to questions as part of an interrogation directed to the facts of the burglary. When he answered regarding the use of the names for insurance purposes, he was concerned for his father. Edwin stated, “I didn’t want to drag him into it. He didn’t know I did it [the burglary].”

After considering the arguments of counsel, the trial court denied the State’s request for forfeiture of the Camaro. Before rendering its memorandum decision and order, the court observed that, under the statutory forfeiture scheme in issue, a lienholder could easily avoid a forfeiture. By contrast, a car in which there is a clear title appeared to the court to be more readily subject to forfeiture presumably because of the difficulties in determining the requisite ownership interest. In its written decision, the court found that the title of the vehicle was in the name of both the father and the son; the court observed that and the State conceded that, where a vehicle is registered to more than one person, the persons named in the title are statutorily presumed to be joint tenants of the vehicle (see 625 ILCS 5/3-107.1 (West 1992)).

The trial court found the facts similar to those in People ex rel. Barra v. Wiebler (1984), 127 Ill. App. 3d 488, where the vehicle was titled in the father’s business, a sole proprietorship, and the defendant-son used the vehicle to commit a crime without his father’s knowledge. The Barra court affirmed the lower court’s decision to deny forfeiture based on the evidence that the father’s business was a true owner of the vehicle.

Quoting Barra, the trial court in the present case observed that section 36 — 2 of the Code:

“[Plainly allows a joint titleholder of record to show at a forfeiture hearing that he neither knew nor had reason to know of the vehicle’s connection to criminality. The plain language of the statute evidences a legislative intent to provide a joint tenant with the opportunity to prove he should not be charged with another joint tenant’s guilty knowledge.” (Emphasis in original.) Barra, 127 Ill. App. 3d at 491.

See Ill. Rev. Stat. 1991, ch. 38, par. 36 — 2 (now 720 ILCS 5/36 — 2 (West 1992)).

The trial , court here concluded that the criminality of one joint owner should not be imputed to any other joint owner. The court further found that the vehicle was titled in the name of the father and the son and that the preponderance of the evidence established that the Camaro was purchased with joint funds of the father and son. The court also noted that the State conceded that the father did not know or have reason to know that the vehicle was used in the commission of an offense.

On appeal, the State argues that Joseph’s interest in the vehicle is that of a bare titleholder and that his interest is either nonexistent or so minimal as not to prevent a forfeiture as against Edwin — the “true” owner of the vehicle who exercised “dominion and control” over the vehicle.

A forfeiture proceeding is civil in nature, and, under the statute, the State must show by a preponderance of the evidence that it is entitled to the vehicle because it was used in the commission of a crime enumerated in the statute. (See People v. Dugan (1984), 125 Ill. App. 3d 820, 829; Ill. Rev. Stat. 1991, ch. 38, pars. 36—1, 36—1a, 36—2 (now 720 ILCS 5/36-1, 36-la, 36-2 (West 1992)).) The Code provides certain defenses to an innocent party to avoid a forfeiture where the party has a sufficient interest in the vehicle. Section 36 — 2 of the Code provides that the “owner of such vessel, vehicle or aircraft or any person whose right, title or interest is of record *** may show by a preponderance of the evidence that he did not know, and did not have reason to know, that the vessel, vehicle or aircraft was to be used in the commission of such an offense.” Ill. Rev. Stat. 1991, ch. 38, par. 36-2 (now 720 ILCS 5/36-2 (West 1992)).

The State must also release a vehicle to a “lienholder or secured party whose right, title or interest is of record *** if such lienholder or secured party shows to the State’s Attorney that his lien or secured interest is bona fide and was created without actual knowledge that such *** vehicle *** was used or to be used in the commission of the offense charged.” Ill. Rev. Stat. 1991, ch. 38, par. 36 — la (now 720ILCS 5/36 — la (West 1992)).

In arguing that Joseph’s interest in the vehicle is insufficient to avoid a forfeiture, the State relies on People v. Dugan (1984), 125 Ill. App. 3d 820, affd in part & rev’d in part on other grounds (1985), 109 Ill. 2d 8, where this court distinguished between an “owner” and an apparently nominal titleholder in determining that, based on the particular evidence presented there, the “true” owner’s vehicle was correctly determined by the trial court to be subject to forfeiture under the same statutory scheme. In Dugan, the court stated that an “owner” could be described as “one who has dominion or control over a thing, the title to which is in another.” (Dugan, 125 Ill. App. 3d at 830, citing Black’s Law Dictionary 1259 (4th ed. 1968).) The Dugan court also stated that “the knowledge and consent of the ‘owner,’ and not the title holder [sic] *** is paramount in determining whether a particular vehicle is subject to forfeiture.” Dugan, 125 Ill. App. 3d at 830.

We do not believe that Dugan should control the case at bar. First, Dugan is distinguishable on its facts. The evidence in Dugan showed that Dugan, the defendant found to be the “true” owner, had negotiated the purchase of the car and paid the dealer $5,000 for the vehicle. The defendant returned the vehicle for repairs and later kept the vehicle for his own use for an indeterminate period of time. Sandra Martinez, the titleholder, was unemployed at the time of the purchase, had no bank account, and testified that the purchase money came from cash which she had in the house. The salesman never saw Martinez. It was undisputed that Dugan exercised dominion and control over the vehicle; additionally, the trial court specifically found not credible the testimony that the car was purchased with money saved by Martinez. The trial court’s finding that Dugan was the “true” owner was affirmed on appeal as it was not against the manifest weight of the evidence.

Second, we do not read Dugan as broadly as the State suggests so as to require that, in all cases, an innocent titleholder’s claim to avoid forfeiture will automatically fail merely because a wrongdoer who is a joint owner or joint titleholder is shown to exercise some degree of “dominion and control” over the property. To the degree that Dugan suggests this result, we will not follow it, and we believe that the determination in Dugan (that the knowledge and consent of the “owner” was paramount to that of the titleholder) was largely dependent on the particular facts of that case. Undoubtedly, the underlying concern in Dugan was that the sham use of a nominal titleholder who exhibits no other indicia of true ownership might successfully defeat a forfeiture and circumvent the statute in aid of criminal wrongdoers. See People v. Dugan (1985), 109 Ill. 2d 8, 19.

The courts, however, must also be vigilant in construing the law to safeguard the rights of innocent persons who have truly legitimate interests in the property in issue. The law generally disfavors forfeitures, and “statutes authorizing them must be construed strictly in a manner as favorable to the person whose property is seized as is consistent with fair principles of statutory interpretation.” (People v. United States Currency $3,108 (1991), 219 Ill. App. 3d 441, 446.) The Supreme Court has recently determined that forfeitures comprise a type of punishment which is subject to the limitations of the eighth amendment’s excessive fines clause, and the use of forfeiture proceedings to seize property in which nonculpable persons have legitimate ownership interests raises serious constitutional questions. See Austin v. United States (1993), 509 U.S__, 125 L. Ed. 2d 488, 113 S. Ct. 2801; U.S. Const., amend. VIII.

The word “owner” is nomen generalissimum, and its meaning is to be gathered from the connection in which it is used and from the subject matter to which it is applied. When the word is used in a statute, the obvious nature and purpose of the statute may indicate its meaning. (Woodward Governor Co. v. City of Loves Park (1948), 335 Ill. App. 528, 533.) An “owner” has been defined, for example, as one “ ‘who has possession of or any other interest in the property involved’ ” and may include one who has title and the right to the possession of the property. (People ex rel. Foreman v. Estate of Kawa (1987), 152 Ill. App. 3d 792, 798, quoting Ill. Rev. Stat. 1985, ch. 38, par. 15—2.) While it is true that “owner” may be used to describe “one who has dominion or control over a thing, the title to which is in another,” an owner may also be described as “ ‘one that has the legal title or rightful title whether he is the possessor or not.’ ” (Foreman, 152 Ill. App. 3d at 798-99, quoting Webster’s Third New International Dictionary 1612 (1984).) Thus, owners apparently include parties who are “entitled” to have “ ‘dominion or control’ ” of the property. Foreman, 152 Ill. App. 3d at 798-99 (decedent’s administrator who had title and right to possession of property was “owner” for purposes of contesting forfeiture).

In examining the plain language of the statute and its application in Barra, it is clear to us that the owner of the vehicle or any person whose right, title or interest is of record may show by a preponderance of the evidence that he did not know or have reason to know that the vehicle was to be used in the commission of an offense and, upon a sufficient showing, may successfully resist a forfeiture. Unlike the provision for lienholders, sections 36 — 2 and 36 — 3 of the Code do not explicitly address the issue of “bona fide” ownership interests. What constitutes a sufficient ownership interest for an innocent claimant to avoid a forfeiture appears to be a question for the trial court to resolve based on the particular facts before it.

Here, the trial court determined that Joseph’s ownership interest in the vehicle was sufficient to defeat a forfeiture. As in Barra, the claimant’s evidence showed more than a naked legal title in the property. Joseph, the father, purchased the vehicle with proceeds he had received jointly with his son and which had been commingled with funds in his bank account. The father had control of the funds, was actively involved in purchasing the car, and was a joint titleholder of record. He obtained the insurance and listed himself and his wife as the principal drivers. Joseph occasionally used the vehicle, and his wife used it anytime she wished. Joseph gave his 18-year-old son “permission” to use the vehicle and appears to have retained the right to exercise “dominion and control” over it whenever he wished to. Although the son often used the Camaro, he had his own Buick for which he was listed as the principal driver.

There is no evidence tending to show that the father’s title in the vehicle was merely a sham to avoid the effect of the statute, and the State does not argue that Joseph knew or had reason to know that the vehicle would be used in the commission of a crime. The State’s argument that Joseph had no legal or equitable interest in the vehicle is unsupported by the record.

In a bench trial, it is for the trial court to determine the credibility of the witnesses and the weight to be accorded to their testimony. (Sianis v. Kettler (1988), 168 Ill. App. 3d 1071, 1072.) The trial court is in the best position to evaluate the testimony of the witnesses and is entitled to draw reasonable inferences from the evidence. (People v. One 1990 Chevrolet Suburban (1992), 239 Ill. App. 3d 815, 817.) Since there was sufficient evidence to show by a preponderance that claimant was in fact an innocent “owner” of the Camaro, we cannot say that the trial court’s finding was against the manifest weight of the evidence (see One 1990 Chevrolet Suburban, 239 Ill. App. 3d at 817).

The judgment of the circuit court is affirmed.

Affirmed.

INGLIS, P.J., and DOYLE, J., concur.


source: Caselaw Access Project

author: JUSTICE BRESLIN

license: Public Domain

text:
    P B M STONE, INC., et al., Plaintiffs-Appellees, v. THOMAS PALZER, as Director of Building and Zoning, et al., Defendants-Appellants.
    Third District
    No. 3—93—0081
    Opinion filed October 12, 1993.

      Michael W. Condon, of Hervas, Sotos & Condon, of Itasca (Michael D. Bersani, of counsel), for appellants.
    Blanke, Norden, Barmann, Kramer & Bohlen, P.C., of Kankakee (Christopher W. Bohlen, of counsel), for appellees.
   JUSTICE BRESLIN

delivered the opinion of the court:

The plaintiffs, P B M Stone, Inc., and Bob Neiner Farms, Inc., filed a four-count complaint against the defendants, Thomas Palzer and the County of Kankakee (County), alleging that defendant Palzer, as the director of building and zoning for the County of Kankakee, wrongfully failed to issue the plaintiffs a permit and license in connection with the plaintiffs’ proposed gravel quarry operation. Specifically, count I requested- a writ of mandamus to compel Palzer to issue the permit and license. Count II sought an injunction restraining the defendants from interfering with the plaintiffs’ property. Count III sought a writ of mandamus to compel the defendants to initiate condemnation proceedings. Count IV alleged that the defendants violated section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1992)) in denying the plaintiffs their substantive and procedural due process rights. The trial court dismissed count III, but entered judgment on behalf of the plaintiffs for $795,000 and ordered that the defendants grant the plaintiffs the permit and license. The court did not specify the count on which it was awarding damages. We reverse the portion of the court’s order which awarded damages. We further find that the court erred in failing to dismiss the plaintiffs’ due process claims brought under section 1983. Regarding the mandamus count, we find that the ordinance is unlawfully vague and that the trial court properly ordered Palzer to issue the permit.

The plaintiffs are two Illinois corporations owned by Pat Neiner. Both businesses are located in Kankakee County, Illinois, on 500 acres of land in an agricultural zoning district. In the fall of 1988, Neiner informed Palzer that he wanted to operate a quarry on the property and asked him if he needed any permits. According to Neiner, Palzer responded that no permits were necessary and that he simply had to obtain the necessary State permits.

In August 1989, after making substantial investments in equipment for commencement of the quarrying operation, the plaintiffs began blasting on the property. Shortly thereafter, Palzer notified Neiner that he had to stop blasting until he obtained a permit.

The Kankakee County zoning ordinance provided that quarrying is a permitted use in an agricultural district. Permitted uses, according to the ordinance, “shall be permitted in the districts indicated under the conditions specified.” The two specified conditions relevant to this case relate to ground vibrations and decibel limits from blasting. With respect to ground vibrations, the ordinance provided that the limits “shall be in accordance with requirements of a permit issued under the performance standards for fire and explosion hazards.” (Kankakee County, Ill., Ordinance §V(GX3)(cX3) (1967).) Regarding decibel limits, the ordinance states that decibel limits “shall be in accordance with the requirements of the license issued by the director of building and zoning after petition and hearings before the zoning board of appeals.” Kankakee County, Ill., Ordinance §V(GX3)(b)(3) (1967).

In October of 1989, Neiner submitted applications for a ground vibration permit and a decibel limit license. Prior to the commencement of the hearings on the plaintiffs’ applications, Palzer’s staff recommended that the guidelines set forth by the United States Bureau of Mines and Minerals and the Illinois Department of Mines and Minerals be used as a basis for issuing the permit and license. Hearings on the license and permit applications before the zoning board of appeals began in January 1990, and concluded in March 1990. On February 13, 1990, the County passed a 90-day moratorium on the issuance of blasting licenses and permits.

At the hearings before the board, Spencer W. Lucole, a registered professional engineer, testified that he reviewed the data from a test blast that was conducted on the property. Lucole stated that the data met the criteria recommended by the United States Bureau of Mines and Minerals for safe levels of blasting. Lucole further testified that the blasting would not affect surrounding residential structures, cosmetically or structurally. Lucole opined that any building located within 800 feet of the test blast could not have been damaged.

Two surrounding neighbors of the blast site testified about damage to their properties as a result of the blast. One claimed that her sepcic tank was damaged and another claimed that his basement windows were cracked.

During the course of the hearing, Neiner revealed that his blasting would take place 15 feet from Rock Creek. Thereafter, testimony was presented about the effects of blasting near the creek. A representative of the Northern Illinois Anglers Association testified that the creek was a high quality stream with various species of fish. He expressed his concern about water leaching from the creek into the quarry hole as a result of blasting. In response to these concerns, Lucole testified that studies done in other parts of the country showed a surprisingly low fish-kill zone to the blast origin. Lucole admitted that leaching was possible as a result of blasting 15 feet from the creek but that he was not an expert in the area of hydrology so, therefore, he could not respond to the issue.

The zoning board subsequently requested that the plaintiffs submit additional evidence in the form of an environmental impact study to determine how blasting would affect the aquatic life and water levels of the creek. The plaintiffs responded that they had already presented all that was required of them by the zoning ordinance, including a permit from the Illinois Environmental Protection Agency, which, according to the plaintiffs, already addressed the environmental issue in the form of a condition on the permit. In an April 1990 letter, the plaintiffs requested that Palzer issue the permit and license. Palzer responded that he could not issue the permit and license because of the 90-day moratorium. Thereafter, the plaintiffs filed their four-count complaint in the circuit court of Kankakee County.

At trial on the plaintiffs’ complaint, defendant Palzer testified that he never did deny the permit and license application but that he would deny the permit for ground transmitted vibrations because the applicant did not supply sufficient information to guarantee public safety because of the proximity to the creek. The plaintiffs presented the testimony of various prospective buyers of the stone that would be quarried from the plaintiffs’ property. They testified that they would have been willing to pay somewhere between $3.80 and $5.50 per ton for the stone. Neiner testified that he could probably sell between 150,000 to 500,000 tons of stone from his quarry in a given year and that it would cost him between $0.50 and $0.65 a ton to produce the stone.

After hearing all of the above evidence, the trial court entered judgment for the plaintiffs for $795,000 and ordered Palzer to issue the permit and license. In so ruling, the trial court found that the testimony of Palzer and the various adjoining landowners was not credible. The court noted that there was no evidence in the record to suggest that public safety was endangered as Palzer had stated in his rationale for denial. The court finally concluded that Palzer’s decision was arbitrary and irrational because Palzer admitted that there were no criteria for the permit and license and that the plaintiffs stated that they could comply with the guidelines suggested by Palzer’s staff and the Federal mining laws. The court ordered Palzer to issue the permit and license and awarded the plaintiffs $795,000 in damages. The court stayed the damage award pending appeal, but refused to stay the order to issue the permit.

On appeal, the defendants first argue that the trial court erred in failing to dismiss the plaintiffs’ due process claims. The defendants contend that the plaintiffs failed to allege the deprivation of a property right protected under the fourteenth amendment. The defendants further argue that even if the plaintiffs possessed a constitutionally protected property right, they nonetheless did not state a valid cause of action for procedural or substantive due process.

Initially, we note that the trial court did not indicate which count of the complaint it was awarding damages on, even though count IV was the only count under which they were requested in the complaint. Nonetheless, we will assume arguendo that the court would have awarded damages based on any of the three counts which were not dismissed.

Turning to the merits, we agree that the trial court should have dismissed the plaintiffs’ due process claims. A procedural due process claim must fail when the State provides an unsuccessful applicant for a zoning permit with a sufficient State remedy to cure a random and unauthorized denial. (New Burnham Prairie Homes, Inc. v. Village of Burnham (7th Cir. 1990), 910 F.2d 1474.) A mandamus action has been specifically held to be such an adequate State law remedy so as to preclude a procedural due process claim. (See New Burnham Prairie Homes, Inc. v. Village of Burnham (7th Cir. 1990), 910 F.2d 1474.) In our case, the plaintiffs clearly had an adequate State law remedy in their mandamus action. Accordingly, they are precluded from raising a procedural due process claim.

Turning to the substantive due process claim, we note that to state a valid substantive due process claim, a plaintiff must allege that the decision was arbitrary and irrational and must show either a separate constitutional violation or the inadequacy of State law remedies. (Polenz v. Parrott (7th Cir. 1989), 883 F.2d 551.) Here, the plaintiffs failed to allege that the decision was arbitrary and irrational. They also failed to allege a separate constitutional violation, and as we have previously noted, they failed to show that they did not have an adequate State law remedy.

The plaintiffs contend that their procedural due process claim should serve as the “separate constitutional claim” required for the substantive due process claim. This is incorrect. As the Seventh Circuit Court of Appeals has noted:

“In cases where the plaintiff complains that he has been unreasonably deprived of a state-created property interest, without alleging a violation of some other substantive constitutional right or that the available state remedies are inadequate, the plaintiff has not stated a substantive due process claim.” (Emphasis added.) New Burnham Prairie Homes, Inc. v. Village of Burnham (7th Cir. 1990), 910 F.2d 1474, 1481.

The defendants next argue that the trial court erred in granting the writ of mandamus and ordering Palzer to issue the permit and license. They contend that Palzer never issued a final decision, so at most the trial court should have merely ordered him to make a decision. The defendants further argue that the zoning ordinance should be interpreted to allow the zoning board to request further information, i.e., the environmental impact statement, and that the plaintiffs’ failure to submit it should be grounds for denying the permit.

We find that the defendants erroneously rely on the ordinance provisions relating to Palzer’s discretion. Those provisions relating to Palzer’s discretion on whether to grant the permit and license are unconstitutionally vague and thus unenforceable. An ordinance is unconstitutionally vague when a person of common intelligence must necessarily guess at its meaning. (Broadrick v. Oklahoma (1973), 413 U.S. 601, 37 L. Ed. 2d 830, 93 S. Ct. 2908.) In other words, the ordinary person must be capable of appreciating, from the language of the ordinance, how he will be affected by its operation. (Smith v. Town of Normal (1992), 238 Ill. App. 3d 944, 605 N.E.2d 727.) Furthermore, when an ordinance vests discretionary power in an administrative officer, definite terms and intelligible standards must be provided to guide the exercise of discretion. (Krol v. County of Will (1968), 38 Ill. 2d 587, 233 N.E.2d 417; Balmoral Racing Club, Inc. v. Illinois Racing Board (1992), 151 Ill. 2d 367, 603 N.E.2d 489; Union National Bank & Trust Co. v. Village of New Lenox (1987), 152 Ill. App. 3d 919, 505 N.E.2d 1.) Failure to provide such standards renders the ordinance void as an unlawful delegation of legislative power. Krol v. County of Will (1968), 38 Ill. 2d 587, 233 N.E.2d 417.

Here, the ordinance provided that the plaintiffs’ proposed quarry operation was a permitted use within the agricultural district. The ordinance further provided that the plaintiffs had to obtain a permit and license. Specifically, the ordinance required that the decibel limits shall be in accordance with a license issued by Palzer after petition and hearing before the zoning board. We note that the decision of whether to grant the license was solely vested in Palzer. Any decision rendered by the board or standard set by the same was not binding on Palzer. Regarding ground vibrations, the ordinance provided only that the limits be in accordance with a permit issued under performance standards for fire and explosion hazards. However, that ordinance does not specify what those standards are or how they might be determined. In sum, the decision of whether to grant the permit and license was within the sole discretion of Palzer and the ordinance did not include any guidelines, criteria, rules, or regulations to guide the officer’s discretion. Accordingly, we find that the ordinance unlawfully delegates legislative power to the director of building and zoning, and therefore, the trial court properly granted the writ of mandamus to compel the defendants to issue the permit and license.

Last, the defendants argue that the trial court’s damages award should be reversed. The defendants point out that the plaintiffs did not ask for money damages in their prayer for relief in the mandamus count.

It has been held that where there is no prayer for a money judgment in a plaintiff’s complaint, it is improper to grant such relief. (Ti-son & Hall Concrete Products Co. v. A.E. Asher, Inc. (1967), 86 Ill. App. 2d 34, 229 N.E.2d 137.) Section 2 — 604 of the Code of Civil Procedure provides, in relevant part, that every complaint shall contain a specific prayer for relief. (735 ILCS 5/2 — 604 (West 1992).) That section further provides that a prayer for relief does not limit the relief obtainable, but where other relief is sought the court shall, by proper orders, and upon terms that may be just, protect the adverse party against prejudice by reason of surprise. 735 ILCS 5/2 — 604 (West 1992).

Here, we have already determined that the trial court should have dismissed the plaintiffs’ due process claims. Thus, the only other count on which the trial court could have properly awarded damages was the mandamus count. The mandamus count of the plaintiffs’ complaint prayed only that the court command Palzer to issue the license and permit and that the court grant such further relief as it may deem reasonable and necessary. Such language has been narrowly construed and does not indicate a request for damages. (See Paskas v. Illini Federal Savings & Loan Association (1982), 109 Ill. App. 3d 24, 440 N.E.2d 194.) In this particular case, the defendants were prejudiced by the lack of a prayer for damages in the mandamus count, because, had damages been in issue, they could have raised the affirmative defense provided by sections 2 — 104 and 2 — 206 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2 — 104, 2 — 206 (West 1992)). Those sections provide that both local public entities and public employees are immune from liability regarding the issuance, denial, suspension, or revocation of any license or permit. (U-Haul Co. of Chicago Metroplex v. Town of Cicero (1980), 87 Ill. App. 3d 915, 410 N.E.2d 286.) Under the circumstances, we find that the trial court erred in awarding the plaintiffs damages under the mandamus count because damages were not requested and the defendants were prejudiced thereby. Accordingly, we vacate the damage award.

For the foregoing reasons, we affirm the decision of circuit court of Kankakee County to compel the defendants to issue the permit and license. We reverse the portion of the court’s judgment awarding the plaintiffs damages. We further reverse the court’s decision denying the defendants’ motion to dismiss the due process claims. The remaining issues are moot.

Affirmed in part; reversed in part.

LYTTON and STOUDER, JJ., concur.


author: JUSTICE GREEN

text:
    RUSSELL MASINELLI et al., Plaintiffs-Appellants, v. CAROLYN McDONALD, Ex’r of the Estate of Charles McDonald, Deceased, et al., Defendants-Appellees.
    Fourth District
    No. 4—93—0120
    Argued September 27, 1993. —
    Opinion filed October 22, 1993.—
    Rehearing denied December 1, 1993.

      Rick Verticchio (argued), of Phelps, Hasten, Verticchio & Ruyle, of Gillespie, for appellants.
    Stephen W. Thomson (argued) and Richard J. Behr, both of Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, P.C., of Edwardsville, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On May 31, 1990, plaintiffs Russell and Anita Masinelli brought suit in the circuit court of Macoupin County against defendant Charles McDonald seeking recovery for fire damage to a building belonging to the Masinellis. Subsequently, Charles McDonald died, and Carolyn McDonald, executor of the estate of Charles McDonald, was substituted as the defendant. Merchant’s Property Insurance Company (Merchant’s), possessor of subrogation rights pursuant to a policy of fire and extended coverage insurance covering the Masinellis’ property, was made an additional plaintiff, and Dennis Tabor was made an additional defendant.

After various disputes concerning pleadings, plaintiffs filed a fourth-amended complaint. All counts alleged that (1) the Masinellis owned a building in Staunton which was next to a building owned by the defendants; (2) on May 13, 1990, the latter building caught fire; and (3) the fire spread to the Masinellis’ building, damaging it. All counts alleged that defendants’ negligence in the maintenance of their building was a proximate cause of the damage to the Masinellis’ building. More particularly, plaintiffs alleged that (1) defendants negligently allowed junk to accumulate in their building, and (2) negligently made or allowed repair to flue piping of a furnace or water heater in their building, which flue piping was improperly joined, and they did so without taking precautions to permit the escape of gas. The Masinellis brought counts I and II. Merchant’s brought counts III and IV under the subrogation provision of its policy covering the Masinellis’ property.

On November 7, 1991, the court allowed defendants’ motion to strike counts I and III in bar of action. On January 12, 1993, the court granted defendants’ motions for summary judgment as to counts II and IV. Plaintiffs have appealed. We reverse as to the summary judgment on counts II and IV and dismiss the appeal from the judgment dismissing counts I and III as moot.

The propriety of the summary judgment is the prime issue in this case. Such a judgment is proper and, indeed, required if “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c).) Where the evidence before the court at a hearing for summary judgment would constitute all the evidence before the court at trial, and on that evidence the court would then be required to direct a verdict, then summary judgment should be entered on that evidence even though a genuine issue of material fact exists. (See Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.) When a defendant is the movant, the plaintiff has a duty to present evidence sufficient to show the existence of a cause of action. (Carter v. Dunlop (1985), 138 Ill. App. 3d 58, 69, 484 N.E.2d 1273, 1281.) As the question of whether the record supports a summary judgment is one of law, the reviewing court makes a de novo determination, giving no deference to that of the circuit court. Shull v. Harristown Township (1992), 223 Ill. App. 3d 819, 823-24, 585 N.E.2d 1164, 1167.

Plaintiffs’ showing of their ability to prove their case consisted almost entirely of the expert testimony of Peter Bodett as set forth in his deposition and written report. He testified that he had gone on the premises on June 7, 19, and 20, 1990, and examined the remains of the buildings and the rubble. He made a reconstruction of flues from water heaters and a furnace that had existed in the McDonald building. He stated that he did this by finding various parts of the flues in the rubble and putting them together. He formed an opinion that because the flues had not been properly connected, the flue gases had escaped from the flues and, by a process called pyrolysis, caused the igniting of the joists holding up the second floor. He maintained the fire then spread up an open area, through an open hatch and to the roof of the McDonald building and, thus, to the Masinellis’ building. In Bodett’s opinion, allowing the opening of the flues to exist and leaving the hatch to the roof of the McDonald building open was negligence which was a cause of the fire.

Defendants do not contest the expertise of Bodett. Rather, they contend that his opinion was inadmissible because (1) his reconstruction of the flues was based upon an investigation of the premises too long after the fire, and (2) his opinion was based upon speculation, guess, and conjecture. Defendants also assert that summary judgment in their favor was warranted because no showing was made that Charles McDonald knew of the flues being improperly connected or that any act or omission or commission attributable to any defendant was a proximate cause of plaintiffs’ damages.

Expert testimony of reconstruction of apparatus is inadmissible if the reconstruction is based upon inspection of the premises involved when it was not in substantially the same condition as that existing immediately after the event in issue. (Dyback v. Weber (1986), 114 Ill. 2d 232, 244-45, 500 N.E.2d 8, 13.) Defendants pointed out that they had made a showing that various people had been on the premises after the fire on May 13, 1990, and before Bodett’s inspections of June 7, 19, and 20, 1990. However, the deposition of Bill Buxton, an expert for defendants, indicated he had examined the premises on May 17 and on June 21, 1993, and that conditions on the latter date were substantially the same as they were when he viewed them on May 17, 1990, which was four days after the fire. Moreover, the crucial objects which Bodett considered were parts of the structure which would not have changed and the parts of the flue which were uncovered in the rubble and were not likely to have been changed. Moreover, the flue parts fit together as far as length was concerned. We hold that a sufficient showing was made that relevant objects considered by Bodett were in substantially similar condition to that which existed immediately after the fire.

Defendants’ assertion that Bodett’s opinion testimony was too speculative and conjectural to stand is based upon his inability to state how long the leak had existed, the rate of the leak, the temperature of the gases at the ignition point, the distance of the ignition point from the alleged leak, the condition of the material at the ignition point, and when the furnace attached to the flue had last been used. Defendants rely upon Wilson v. Bell Fuels, Inc. (1991), 214 Ill. App. 3d 868, 873, 574 N.E.2d 200, 203-04, where an opinion by that plaintiff’s sole expert based upon assumptions which were contrary to undisputed direct evidence before the court was held insufficient to prevent proper entry of summary judgment against that plaintiff.

Here, Bodett’s theory was not based upon any fact shown to be untrue. Buxton testified in a deposition that Bodett’s theory that the fire started from escaping gases was “remotely possible,” but he would have to know more about the above factors recited by defendants in order to give serious consideration to such a theory. We hold that Bodett’s testimony was sufficient for consideration by a trier of fact, and the weaknesses pointed out by defendants go to its weight rather than its admissibility.

Some proof of defendants’ knowledge of the condition of the flues arose from testimony of Charles McDonald presented in an earlier hearing. There, he testified that a representative from his insurer had visited him approximately four months before the fire and requested that he remedy certain conditions which included moving a flue that was two inches from a header. The creation of the gap in the flue structure could have resulted from the work done to correct the condition of which Charles McDonald spoke. The evidence also gives some indication that Charles McDonald was aware of the condition of the flues and, if Bodett’s theory was true, Charles McDonald would have known of the condition. Moreover, owners of a building should know of a gap in a flue if it exists. We deem the evidence shown was sufficient to present a question of fact as to whether the owners of the McDonald building knew of the claimed defect in the flues.

No evidence was presented to show that any of the owners knew that a leaking flue would be likely to emit gas that could be ignited, but a trier of fact could conclude that the owners should have known it.

In support of their contention plaintiffs have not made sufficient showing that defendants’ conduct was a proximate cause of the fire, defendants cite McCormick v. Maplehurst Winter Sports, Ltd. (1988), 166 Ill. App. 3d 93, 98, 519 N.E.2d 469, 473, for a rule that proximate cause must be “shown with reasonable certainty.” Various other appellate court opinions have contained similar language. However, the Illinois Supreme Court has never so stated, and the proper rule as stated by this court is that, just as with most other elements in civil cases, the “more probable than not” standard is the appropriate one. (Homewood Fishing Club v. Archer Daniels Midland Co. (1992), 239 Ill. App. 3d 102, 119, 605 N.E.2d 1140, 1151.) Here, the proof of proximate causation hangs upon the testimony of Bodett, and we deem his testimony is strong enough to create a question of fact as to that issue.

Accordingly, questions of fact exist in regard to whether defendants are entitled to judgment on counts II and IV. Summary judgments for defendants on those counts must be set aside.

Count I was similar to count II, and count III was similar to count IV in. every material respect except counts I and III did not allege that the owners of the McDonald building knew or should have known of (1) the existence of the defect in the flues, nor (2) the danger arising from such a defect. Those counts were stricken because of the failure to make those allegations which were present in counts II and IV. Plaintiffs conceded at oral argument that regardless of whether they were required to make those allegations, they would have to prove those elements of the tort alleged. Under these circumstances, we need not decide whether one or both of those allegations need be alleged because, on remand, a count on behalf of each plaintiff which does make those allegations is before the court. Counts otherwise similar to counts II and IV but not containing allegations of matters which nevertheless need to be proved would serve no useful purpose. Accordingly, the dismissal of counts I and II presents a moot question.

We reverse the summary judgment as to counts II and IV. We dismiss, as moot, the appeal as to the judgment on counts I and III. We remand for further proceedings as to counts II and IV.

Appeal dismissed in part; reversed in part; and cause remanded with directions.

KNECHT and COOK, JJ., concur.


author: JUSTICE DOYLE

text:
    THOMAS RICHARDSON, Plaintiff-Appellee, v. DONALD L. VAUGHN et al., d/b/a The Aurora Athletic Club, Defendants-Appellants (Lewis J. Dekker et al., Defendants).
    Second District
    No. 2—92—1302
    Opinion filed October 7, 1993.
    — Rehearing denied November 16, 1993.

      Dalton P. Grief and Maxine R. Grief, both of Grief, Bus & Konewko, Ltd., of West Chicago, for appellants.
    Gary K. Mickey, Bernard K. Weiler, and Steven A. Andersson, all of Mickey, Wilson, Weiler & Renzi, P.C., of Aurora, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Thomas Richardson, filed a complaint in the circuit court of Kane County against defendants, Donald L. Vaughn and Dennis E. Parker, d/b/a The Aurora Athletic Club, Lewis Dekker, Roy Titzel, and Con-Way Central Express, a foreign corporation, alleging negligence. Prior to trial, all defendants, except Vaughn and Parker, settled and were dismissed with prejudice. These remaining defendants timely appeal from a judgment entered on a jury verdict in favor of plaintiff and from the denial of their post-trial motion.

Defendants raise the following issues: (1) whether there was sufficient evidence to support the trial court’s determination that defendants owed a duty to safeguard plaintiff from an open and obvious danger; (2) whether the verdict in favor of plaintiff was against the manifest weight of the evidence; and (3) whether the trial court erred in denying defendants’ motion for a directed verdict at the close of plaintiff’s case in chief.

The following relevant facts were adduced at trial. Defendants own and operate the Aurora Athletic Club in Aurora, Illinois. As part of its business, the club would rent its facility to various groups for social events, including picnics. Included in the facility rental was the use of club-supplied athletic equipment, including volleyballs and nets, horseshoes, softballs and bats.

North of the club property line was a vacant field onto which club patrons would occasionally venture. Luke Norwood, a club employee who was hired to maintain the picnic area, admitted that it was not an unusual occurrence for picnickers to play baseball and conduct games on the north field. Norwood further testified that he would occasionally mow the grass north of the club property line. In order to prevent people from driving their vehicles into the north field, Nor-wood installed a rusty, brown-colored cable between two trees. The cable spanned a distance of either 30 or 140 feet (the record is not clear) and hung approximately 2 to 3 feet at the ends and sagged to a height of 2 to 2V2 feet in the middle. Norwood admitted that after he installed' the cable, and immediately prior to the date of the accident, he did not suspend any flags or signs to alert persons to the cable’s presence. Norwood stated, however, that the cable was clearly visible and, to his knowledge, no one in the past had tripped over it.

On the date of the accident, plaintiff’s employer, Con-Way Central Express, held a company picnic at the Aurora Athletic Club. Plaintiff cooked food at the picnic. Following his cooking duties, plaintiff was seated near a picnic table where he observed some children, and then adults, playing with water balloons. Plaintiff testified that after about 15 to 20 minutes he became aware that he was about the only dry person in the area. He then noticed two fellow employees, Titzel and Dekker, standing 15 to 20 yards from his position; both were holding water balloons. They made eye contact with each other, and then they made eye contact with him; it appeared to plaintiff that he was going to be the next one to be doused.

When Titzel began running towards him, plaintiff jumped from his chair and began running as fast as he could in a northerly direction towards the open field. While running, plaintiff looked over his right shoulder to see how close Titzel was getting and observed that he was gaining ground. When plaintiff looked back in the direction he was running he observed a cable two to three feet off the ground. Sensing that he was unable to stop, plaintiff hurdled the cable and cleared it entirely. Prior to that time, plaintiff had not observed the cable, and he observed it for the first time when he was approximately five yards from it. On cross-examination, plaintiff stated that after he got up from his chair he took one or two steps, looked over his shoulder and continued to run while looking over his shoulder until he was about five yards from the cable. From the time he looked over his shoulder, after one or two steps, he was not looking in the direction he was running until he was about five yards from the cable, at which time he made the decision to jump. Upon landing, plaintiff’s foot came down on an uneven spot, whereupon he heard a loud snap and then fell to the ground. As a consequence of his fall, plaintiff suffered injuries to his left knee requiring extensive medical and surgical treatment.

At the close of plaintiff’s evidence, defendants’ motion for a directed verdict was denied by the trial court. The defense rested and closing arguments were heard. The jury returned a verdict in favor of plaintiff in the amount of $355,000 reduced by 15% for plaintiff’s contributory negligence, thus resulting in a total award of $301,750. Defendants appeal from the judgment entered on the jury verdict and the denial of their post-trial motion.

Defendants’ first contention is that plaintiff failed to present evidence sufficient to establish the existence of a duty. In order to state a cause of action for negligence, plaintiff must establish that defendants owed him a duty, a breach of that duty, and an injury proximately caused by the breach. (See Curatola v. Village of Niles (1993), 154 Ill. 2d 201, 207.) Whether a duty exists is a question of law to be determined by the court. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140.) The factors relevant to the question of whether to impose a duty are (1) foreseeability that the defendants’ conduct will result in injury to another; (2) likelihood of injury; (3) the magnitude of guarding against it; and (4) the consequences of placing that burden upon the defendant. Curatola, 154 Ill. 2d at 214; Lance v. Senior (1967), 36 Ill. 2d 516, 518.

Defendants contend that they owed no duty to plaintiff because their liability was contingent upon plaintiff’s presenting evidence demonstrating that the condition on defendants’ property was latent, concealed, or one which plaintiff could not have been expected to discover. Defendants argue that various witnesses testified that they had seen the cable earlier in the day, and had plaintiff himself not seen the cable he would not have jumped over it as he attempted to evade his pursuer. The thrust of defendants’ argument is that because the cable was an open and obvious danger, they owed no duty to plaintiff to warn of, or otherwise safeguard against, any hazard presented by the outstretched cable.

In Ward v. K mart Corp. (136 Ill. 2d 132), a customer exiting a retail store sustained injuries when he walked into a concrete post located in close proximity to a customer exit. At the time of the injury, the customer was carrying a large mirror recently purchased from the defendant’s store which, according to plaintiff’s testimony, obstructed his view. In holding that the defendant’s duty of reasonable care encompassed the risk that one of its customers, while carrying a large bulky item, might collide with the post, the court rejected the application of a per se rule that the owner or occupier of land owed no duty of reasonable care, under any circumstances, to lawful entrants on its premises where the danger was known or obvious to the entrants. (136 Ill. 2d at 145, 147.) Recognizing the harsh nature of the rule as it then existed, the court modified the open and obvious rule to encompass additional considerations relevant to determining whether to impose a duty upon owners or occupiers of land. The court adopted section 343A of the Restatement (Second) of Torts, which provides:

“ ‘(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’ ” (Emphasis in original.) (Ward, 136 Ill. 2d at 149, quoting Restatement (Second) of Torts §343A (1965).)

The court explained that the imposition of a duty on landowners to exercise reasonable care in safeguarding against harm was not determined solely by whether the condition was open and obvious (Ward, 136 Ill. 2d at 150); rather, the inquiry requires a further examination into whether an invitee may reasonably be expected to be distracted or forgetful of the condition after having momentarily encountered it (Ward, 136 Ill. 2d at 152, 156).

The supreme court on two subsequent occasions has expressed its continued approval of the rule established in Ward. In Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, a worker was injured after he stumbled in a rut while exiting a portable bathroom on a construction site. At the time of the injury, the worker was looking upward to ascertain whether construction materials were being thrown off a balcony near the bathroom. After concluding that the existence of the rut was obvious, the court nevertheless determined that the defendants owed the worker a duty because his injury was reasonably foreseeable. The evidence supported the plaintiff’s contention that he was distracted at the time of his injury, and it was reasonable for the defendants, as the general contractors on the project, to anticipate that a worker exiting the bathroom would be momentarily distracted while looking out for falling debris and consequently stumble in a rut. 141 Ill. 2d at 438-39.

In American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, plaintiff’s decedent was electrocuted when he came in contact with high voltage wires while painting a billboard leased to the defendant. The court held that the defendant owed decedent a duty because it was reasonable to expect that a worker might become distracted and consequently not be aware or remember the presence of the electric wires. 149 Ill. 2d at 29.

Initially, we note that defendants’ argument fails to recognize the court’s explanation in Ward that the loose characterization of a particular hazard as open and obvious is not conclusive in determining whether to impose a duty upon landowners. (See Ward, 136 Ill. 2d at 150.) The mere fact that plaintiff failed to present evidence demonstrating a latent or undiscoverable condition, or that various witnesses testified that they had seen the cable earlier in the day, did not determinatively resolve the question of whether to impose a duty on defendants. Although plaintiff suggests at one point in his brief that the harm posed by the cable might not have been open and obvious, the primary thrust of his argument on appeal necessarily concedes that the cable presented an obvious hazard. Moreover, the evidence presented at trial supports the conclusion that the cable was an obvious condition.

Assuming that the outstretched cable presented an obvious condition, we must further consider whether defendants had reason to anticipate the harm to plaintiff despite the obviousness of the condition. (See American National Bank, 149 Ill. 2d at 29; Restatement (Second) of Torts §343A (1965).) The relevant inquiry asks whether a defendant should reasonably anticipate injury to those entrants on the premises who are generally exercising reasonable care for their own safety, but may reasonably be expected to be distracted or forgetful of the condition after having momentarily encountered it. (Ward, 136 Ill. 2d at 152.) A defendant, however, “need not anticipate the negligence of others.” Ward, 136 Ill. 2d at 152.

Under the factual circumstances of the present case, we are unable to conclude that plaintiff was “generally exercising reasonable care for his own safety.” Although defendants could reasonably anticipate that patrons of their facility might engage m vigorous physical activities of the type ordinarily associated with an outdoor picnic, it would be unreasonable to require defendants to anticipate that plaintiff, while engaged in such activities, would blind himself to the probable consequences of his own actions. The Ward doctrine does not charge possessors of land with a duty to anticipate the harm that might result from an invitee’s inattention to a known or obvious condition. Instead, defendants’ duty arises where they could reasonably anticipate an invitee’s distraction or momentary forgetfulness. Although drawing the line between mere inattention and reasonably foreseeable distraction is not susceptible to mathematical precision and requires a careful focus upon the particular facts at hand, the failure to make this distinction would impermissibly expand a defendant’s scope of potential liability to unforeseeable dimensions. Moreover, imposing a duty on possessors of land that is premised on a plaintiff’s inattentiveness would place a burden on possessors of land tantamount to requiring them to insure the safety of their invitees. Defendants should not be confronted with the impossible burden of rendering their premises injury-proof, and they are entitled to the expectation that their patrons will exercise reasonable care for their own safety. Ward, 136 Ill. 2d at 156.

In the present case, the record does not support the conclusion that plaintiff was distracted or that he was momentarily forgetful of the condition after having encountered it. (See Ward, 136 Ill. 2d at 152, 156.) Plaintiff testified that he did not see or was not otherwise aware of the cable’s presence until the instant immediately prior to his jumping; therefore, no duty could arise from defendants’ having to anticipate momentary forgetfulness because it would offend logic to contend that one could be forgetful of a condition of which he had no prior knowledge.

Additionally, the facts of the present case do not suggest the same temporal and proximate quality as existed in Ward and the other cases cited by plaintiff. In each of those cases, the distraction amounted to no more than a momentary diversion of attention while the plaintiff was otherwise exercising reasonable care for his own safety. For example, in Ward, the plaintiff was momentarily distracted as he exited the customer service door just prior to striking a post outside the door. The court noted that it “may well have arrived at a different conclusion [i.e. that the store owner owed no duty to plaintiff] if the post would have been located further [sic] from the entrance of the building, or if the plaintiff would not have been carrying any vision-obscuring bundle.” (Ward, 136 Ill. 2d at 153.) In Deibert, the construction worker was momentarily distracted as he exited the portable bathroom just prior to encountering the rut. The court did not consider whether the defendant’s duty would have existed if the plaintiff had continued walking for an additional 20 or 30 yards with his eyes fixated on the balcony above and then encountered a rut. In American National, the billboard painter was distracted as he negotiated a catwalk prior to contacting the electric power lines. Unlike these cases, plaintiff here admitted on cross-examination that after he left his chair he continued to run at full speed in the direction of the cable with his head turned behind him until just prior to the instant that he first observed the cable and decided to leap over it. The record here does not support the conclusion that plaintiff’s attention was momentarily diverted while he was otherwise engaged in the exercise of reasonable care for his own safety.

Accordingly, we determine, under these specific circumstances, that defendants owed plaintiff no duty to warn or otherwise safeguard plaintiff from potential harm posed by an obvious condition where plaintiff’s injuries resulted not from a distraction which could be reasonably anticipated by defendants, but instead were the result of plaintiff’s own inattentiveness in running a considerable distance without looking forward for the presence of potential obstacles. By running at full speed without looking forward, plaintiff might have eventually encountered any stationary object. A plaintiff who, through his own inattention, has subjected himself to potential injury may not be heard to assert that a defendant should have anticipated that he might be “distracted.”

We conclude as a matter of law that the facts of this case, when viewed in a light most favorable to plaintiff, fail to support the imposition of a duty on defendants. As a result of our determination, it is unnecessary to reach defendants’ remaining issues on appeal. Accordingly, for the foregoing reasons, the judgment entered in the circuit court of Kane County in favor of plaintiff is reversed.

Reversed.

INGLIS, P.J., and GEIGER, J., concur.


author: JUSTICE GEIGER

text:
      In re MARRIAGE OF KATHLEEN M. SUTHERLAND, Petitioner-Appellant, and CHARLES D. SUTHERLAND, Respondent-Appellee.
    Second District
    No. 2—92—0896
    Opinion filed October 19, 1993.

      Leonard T. Timpone, of Leonard Timpone & Associates, of Chicago, for appellant.
    David H. Keay, of Law Office of David H. Keay, of Wheaton, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

The marriage of the petitioner wife, Kathleen Sutherland, and the respondent husband, Charles Sutherland, was dissolved on May 16, 1985. The wife later petitioned the court for an increase in the amount of child support payable by the husband. The court ordered the petition stricken, and the wife moved to vacate that order. The husband moved to dismiss the wife’s motion to vacate, and the court granted the husband’s motion. On appeal, the wife contends that the trial court erred in striking her petition for modification and in granting the husband’s motion to dismiss reconsideration of the striking order. We reverse.

On July 6, 1990, the wife filed a petition for increased child support. Pursuant to several continuance orders, the matter was continued to a hearing on January 28, 1992. Neither the wife nor her attorney appeared for the hearing. The husband's attorney asked the court to strike the “motion,” as more than 90 days had passed since it was “noticed up,” in ’violation of local rule 6.04(f), which required any motion to be called for hearing within 60 days of filing (18th Jud. Cir. R. 6.04(f) (1987)). The court struck the petition.

On February 10, 1992, the wife filed a “Petition to Vacate Dismissal and to Set For Trial” (“Petition to Vacate”). According to the “Petition to Vacate,” the wife’s attorney was late for the hearing on January 28. The wife asserted that on every occasion during the pendency of the petition, she was ready to proceed, but for various reasons the matter was continued. The “Petition to Vacate” further alleged that during early 1991, the parties attempted to reach a settlement, which was reduced to writing and awaited, but never received, the husband’s written approval. It also alleged that resolution of the matter of modification was inhibited and delayed by the husband’s actions.

On June 15, 1992, the husband moved to dismiss the wife’s “Petition to Vacate.” His motion was ostensibly filed under section 2 — 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 615 (West 1992)). Also, it asserted that the wife’s “Petition to Vacate” was a motion to set aside a default judgment and filed pursuant to section 2 — 1301(e) of the Code (735 ILCS 5/2-1301(e) (West 1992)). Following a hearing on July 7, 1992, the court granted the husband’s motion to dismiss. The wife timely appealed from that July 7 order.

On appeal, we first note the husband’s argument that the wife’s brief fails to raise any issues relating to the order of July 7, 1992. We note that the husband has failed to present any related authority and we find, thus, that any such argument has been waived. See 134 Ill. 2d R. 341(e)(7).

We turn, then, to the merits of the appeal. They are directly related to the fact that the trial court dismissed the wife’s petition for modification based on its finding that the petition violated local rule No. 6.04(f). Rule 6.04(f) provides:

“Failure to Call Motions for Hearing. The burden of calling for hearing any motion previously filed is on the party making the motion. Any motion not called for hearing within sixty (60) days from the date it is filed may be stricken without notice. Any post-trial motion shall be denied if not called for hearing within sixty (60) days from the date the motion was filed.” 18 Jud. Cir. R. 6.04(f) (1987).

The wife argues that her petition to modify child support was not a motion, but a pleading in a new proceeding. Thus, the wife argues that Rule 6.04(f) was not the basis for its dismissal. She further argues that considering the merits of her petition to vacate the dismissal, the court erred in granting the husband’s “2 — 615” motion to dismiss her petition to vacate. The husband argues that Rule 6.04(f) applies, suggesting that the wife’s petition to modify was a post-judgment motion in the dissolution proceeding.

A motion is an application to the court for a ruling or an order in a pending case. (People v. City of East St. Louis (1990), 206 Ill. App. 3d 626, 640.) A post-trial motion must be filed within 30 days of the judgment (735 ILCS 5/2 — 1203(a) (West 1992)), and it must specify one or more of the types of relief in section 2 — 1203 (Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 461). A pleading, in contrast, consists of a party’s formal allegations of his claims or defenses. Black’s Law Dictionary 1152 (6th ed. 1990).

Under section 511(a) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act), a dissolution judgment may be modified by the filing of a petition with notice mailed to the respondent or by the issuance of a summons (750 ILCS 5/511(a) (West 1992)), a procedure consistent with the filing of a pleading. (See 735 ILCS 5/2— 201(a), 5/2 — 602 (West 1992).) Further, case law, including that which designates a petition to modify a dissolution judgment as a new proceeding (In re Marriage of Sipich (1980), 80 Ill. App. 3d 883, 890), indicates that a petition for modification of child support is to be considered a pleading. See In re Marriage of Zukausky (1993), 244 Ill. App. 3d 614, 618 (in a child support modification proceeding, the trial court’s “authority [is] limited to the relief sought in the pleadings”); see also Stark v. Stark (1971), 131 Ill. App. 2d 995, 997.

The wife’s petition for increased child support was filed under sections 510 and 511 of the Marriage Act, and it was filed long after the 30-day period for post-judgment motions had expired. We find that for the purposes of our analysis here, it was a pleading, not a motion.

Given that the wife’s petition to modify constituted a pleading, we find that the court’s January 28 order to strike it constituted a dismissal of the complaint and that the wife’s “Petition to Vacate” actually was a motion to reconsider the dismissal of January 28, pursuant to section 2-1203 of the Code (735 ILCS 5/2-1203(a) (West 1992)). Despite the husband’s urgings, that motion to reconsider could not be dismissed pursuant to section 2 — 615, because section 2 — 615 applies only to the dismissal of pleadings. (See 735 ILCS 5/2 — 615 (West 1992).) Rather, the court’s order of July 7, 1992, granting the husband’s motion, was necessarily an order denying the wife’s 2 — 1203 motion to reconsider the dismissal order of January 28, and we analyze it as such.

Pursuant to section 2 — 1203, the court has discretion to modify or set aside a judgment within 30 days of its entry. (735 ILCS 5/2— 1203(a) (West 1992)); see also In re Marriage of Sheber (1984), 121 Ill. App. 3d 328, 334.) On review, the appellate court must examine not merely whether the court’s order pursuant to section 2 — 1203 represented an abuse of discretion but, rather, whether regarding that order, substantial justice is being done between the parties. Sheber, 121 Ill. App. 3d at 334.

In this case, the trial court based its initial order striking the wife’s petition to modify upon local rule 6.04(f) — a rule that by its own term applies to motions and, thus, did not apply to the petition. Given (1) the court’s reliance on an ineffective basis for the original order striking the petition to modify; (2) the wife’s explanation of the delay in calling the petition to modify for a hearing; (3) the wife’s explanation of her attorney’s untimeliness at the hearing on the husband’s motion to strike the petition; plus (4) the wife’s effective pleading of grounds to modify child support; and despite any failings in the wife’s failure to file a proof of service with her underlying petition for modification (see 134 Ill. 2d R. 104), we find that the court’s July 7 order, effectively denying vacation of its initial striking of the wife’s petition to modify, failed to do justice between the parties. See In re Marriage of Sheber (1984), 121 Ill. App. 3d 328, 334.

Based upon our above findings, we reverse the judgment of the circuit court of Du Page County and remand the cause for further proceedings consistent with our decision.

Reversed and remanded.

UNVERZAGT and DOYLE, JJ., concur.


text:
    LORI ANN NILSSON, Plaintiff-Appellant, v. CONTINENTAL MACHINE MANUFACTURING COMPANY, Defendant-Appellee.
    Second District
    No. 2—92—1216
    Opinion filed October 7, 1993.

      David J. Comeau, of Anesi, Ozmon & Rodin, Ltd., of Chicago, for appellant.
    David A. Kolb and Robert A. Chaney, both of Purcell & Wardrope, Chartered, of Chicago, for appellee.
   JUSTICE GEIGER

delivered the opinion of the court:

Plaintiff, Lori Ann Nilsson, appeals the circuit court’s order granting summary judgment to defendant, Continental Machine Manufacturing Company (CMM), on plaintiff’s two-count complaint alleging products liability and negligence. Plaintiff contends that the court erred in granting summary judgment where issues of material fact existed concerning whether defendant corporation was a “mere continuation” of the manufacturer of the machine which injured plaintiff. Alternatively, plaintiff urges this court to adopt the “product line” theory of products liability.

Plaintiff’s complaint alleges that, in the course of her employment as a machine operator, she was injured by a pipe and tube cutoff machine which defendant had “designed, prepared, manufactured, advertised, distributed, supplied and/or sold.” Count I alleged that the machine was unreasonably unsafe at the time it left the manufacturer’s premises. Count II alleged common-law negligence in the inspection, maintenance and repair of the machine, and in the failure to give adequate warnings of its dangerous condition.

Defendant moved for summary judgment. In its motion and supporting memorandum, defendant contended that it could not be liable for plaintiff’s injuries because it did not manufacture the machine which injured her.

Defendant supported its motion with the deposition of Franklyn Robbins. According to Robbins’ undisputed testimony, prior to 1986, Continental Machine Company (Continental) manufactured the Continental 6A Model pipe and tube cutoff machine. Records showed that the specific machine which injured plaintiff was sold by Continental in 1978.

In July 1986, Robbins was the president of Fredor Corporation, which was in the business of acquiring the assets of other companies. Robbins and Bill Holmes were the only shareholders and officers of Fredor. In July 1986, Fredor purchased all the production assets of Continental. These assets included the pipe and tube machine product line, as well as another machine developed by CMM. On July 1, 1986, Fredor incorporated CMM and transferred the assets purchased from Continental to CMM. CMM continued to manufacture the same product lines as Continental.

The shareholders of Continental were Charles Siewert and Herbert Barten. Siewert and Barten did not become shareholders, officers or employees of Fredor or CMM. Except for the “retirement” of Siewert and Barten, most of the employees of Continental became employees of CMM. After the sale of assets to Fredor, Continental continued to exist, but had no productive assets. Continental continued to own the building on which the productive assets were located and leased it to CMM. Continental later changed its name to Sieten Corp.

The trial court granted defendant’s motion, finding that defendant did not manufacture the machine that injured plaintiff and that defendant did not become liable for the debts and liabilities of Continental by virtue of the asset purchase agreement. Plaintiff filed a timely notice of appeal.

On appeal, plaintiff first contends that the court should not have granted summary judgment for defendant because questions of material fact exist concerning whether defendant was the “mere continuation” of Continental.

Summary judgment is a drastic means of disposing of litigation and should be allowed only when the right of the moving party to judgment is clear and free from doubt. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 165.) The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of material fact which should be tried. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) If the pleadings, depositions and affidavits reveal no genuine issue of material fact, then the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2 — 1005(c) (West 1992); Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411.

Generally, a corporation that purchases the assets of another corporation is not liable for the debts and liabilities of the seller. (Nguyen v. Johnson Machine & Press Corp. (1982), 104 Ill. App. 3d 1141, 1143.) The recognized exceptions to this rule are when (1) an express or implied agreement of assumption exists; (2) the transaction amounts to a merger of the seller into the buyer or a consolidation of the two; (3) the buyer is a mere continuation of the seller; or (4) the transaction is fraudulent in that it was entered into to allow the seller to escape its liabilities. Nguyen, 104 Ill. App. 3d at 1143.

Plaintiff correctly points out that Illinois courts have held that the most important factor in determining whether a de jure or de facto merger has occurred is identity of ownership of the new and former corporations. (See, e.g., Nguyen, 104 Ill. App. 3d at 1143.) Plaintiff contends that Illinois courts have also required identity of shareholders under the “mere continuation” exception, rendering the two concepts indistinguishable. Plaintiff postulates that, in order to render the two concepts conceptually distinct, this court should recognize the mere continuation exception even in the absence of a continuity of ownership. According to plaintiff, applying the exception in this fashion to the facts of this case results in a finding of liability on the part of defendant.

Illinois courts have indeed recognized that the de facto merger and mere continuation exceptions to successor corporation nonliability are “inseparable” (Green v. Firestone Tire & Rubber Co. (1984), 122 Ill. App. 3d 204, 210) and that a continuity of stock ownership is critical to a finding of successor liability trader either theory (Green, 122 Ill. App. 3d at 210; Myers v. Putzmeister, Inc. (1992), 232 Ill. App. 3d 419, 423). It does not follow, however, that the two concepts are indistinguishable.

The mere continuation exception applies where a corporate reorganization has taken place (People ex rel. Donahue v. Perkins & Will Architects, Inc. (1980), 90 Ill. App. 3d 349, 353), so that the corporation has simply “put on a new coat” (Kraft v. Garfield Park Community Hospital (1938), 296 Ill. App. 613, 619). A merger, on the other hand, involves the combining of two existing corporations into a single successor corporation. (19 Am. Jur. 2d Corporations §2510 (1986).) As noted, Illinois courts have consistently required identity of ownership before imposing successor liability under either theory. (Myers, 232 Ill. App. 3d at 423; Green, 122 Ill. App. 3d at 210.) We see no reason to deviate from the established requirement of the existence of an identity of ownership before there is liability under the facts of this case.

Alternatively, plaintiff urges us to adopt the “product line” theory of products liability. This theory, first espoused by the California Supreme Court in Ray v. Alad Corp. (1977), 19 Cal. 3d 22, 560 P.2d 3, 136 Cal. Rptr. 574, holds that a party which acquires a product line under circumstances similar to those of this case assumes strict tort liability for defects in units of the same product manufactured by the seller. This theory has been rejected numerous times by the Illinois Appellate Court. (See Gonzalez v. Rock Wool Engineering & Equipment Co. (1983), 117 Ill. App. 3d 435, 440 (and cases cited therein).) The arguments which plaintiff raises were raised and rejected in those cases. Plaintiff provides no compelling reason to disturb these precedents.

Plaintiff does not dispute the facts contained in Robbins’ deposition and accompanying documents. These facts demonstrate that there was no continuity of ownership between Continental and CMM. Therefore, the court did not err in concluding that CMM was not a mere continuation of Continental and in refusing to hold the former liable for injuries caused by a machine manufactured by the latter.

For the foregoing reasons, the judgment of the circuit court granting judgment for defendant is affirmed.

Affirmed.

UNVERZAGT and QUETSCH, JJ., concur.


author: JUSTICE McLAREN

text:
    THE COUNTY OF DE KALB, Plaintiff-Appellant, v. STEVE VIDMAR et al., Defendants-Appellees.
    Second District
    No. 2—92—0371
    Opinion filed October 13, 1993.

      Michael R Coghlan, State’s Attorney, of Sycamore (Mary K. Manning, Assistant State’s Attorney, of counsel), for appellant.
    Bradley J. Waller, of Boyle, Cordes & Brown, of Sycamore, for appellees.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, the County of De Kalb (County), charged defendants, Steve and Barbara Vidmar, with violating three De Kalb County ordinances. The County charged that defendants (1) brought two mobile homes onto their property without permits (De Kalb County Code §4.09); (2) built a structure over and around the mobile homes without a permit (BOCA National Building Code §Ill.1 (1984) as adopted by De Kalb County Code §5.1); and (3) continued construction of the structure in violation of a stop work order (BOCA National Building Code §118.1 (1984) as adopted by De Kalb County Code §5.1). The County also filed a fourth charge against defendants which it later dropped. After a bench trial, the trial court found that defendants did not violate any of the ordinances as charged. The County appeals. We affirm.

The bench trial revealed the following facts. Steve Vidmar owned approximately 33.6 acres in De Kalb County. Two and one-half acres of this property were zoned residential, and Steve was building a house on that portion of the property. The remainder of the property was zoned agricultural. Steve leased the agricultural portion of his property to Friendly Farms, Ltd. Steve and his mother, Barbara Vidmar, were officers of Friendly Farms, Ltd. They worked full-time for that endeavor raising various types of animals for use in petting zoos, pony rides, hay rides, and other activities. They also raised alfalfa to use as animal feed.

In October 1990, defendants applied to the De Kalb County Planning Department for a permit to bring two mobile homes onto the property. The planning department neither granted nor denied this permit. Defendants placed two mobile homes on the property and began to construct additions to the mobile homes. On December 10, 1990, Merle Carter, De Kalb County building inspector, and Christopher Alston, De Kalb County planning director, observed construction of a roof and walls around the mobile homes. Because defendants had not obtained a building permit for the construction, Carter and Alston posted a “stop work” order at the site.

The following week, defendants and their attorney invited Carter and Alston back to the site. Carter and Alston observed that the “stop work” order had been removed and defendants had proceeded with the construction. Defendants eventually completed the structure around the mobile homes. The structure connected the two mobile homes with a roof and walls. Defendants obtained a sanitation permit for the mobile homes from the county health department. Defendants and three farm employees took up residence in the structure.

On January 29, 1992, the trial court entered judgment for defendants based on its finding that defendants had not violated any County ordinances. The trial court gave no reasoning for its decision. When the County moved for a statement of the trial court’s findings of fact, the trial court issued an order which stated that “the record and order of January 29, 1992, shall speak for themselves.” The County brought this timely appeal.

We first note that the County has supplied this court with copies of the relevant ordinances. The copies that the County provides, however, do not show the date of the edition of the De Kalb County Code from which the copies come. However, there is no dispute that the portions of the De Kalb County Code supplied by the County were in effect during the relevant time periods.

The County has adopted portions of the BOCA National Building Code (BOCA) regarding building permits. (De Kalb County Code §5.1.) Section Ill.1 of BOCA requires a permit when a property owner seeks:

“[T]o construct, enlarge, alter or demolish a structure; or change the occupancy of a building or structure requiring greater strength, exit or sanitary provisions; or to change to another use; or to install or alter any equipment for which provision is made or the installation of which is regulated by this code ***.” (BOCA National Building Code §Ill.1 (1984) as adopted by De Kalb County Code §5.1(a).)

“Upon notice from the code official that work on any building or structure is being prosecuted contrary to the provisions of this code or in an unsafe and dangerous manner, such work shall be immediately stopped.” BOCA National Building Code §118.1 (1984) as adopted by De Kalb County Code §5.1(a).

In support of their contention that they were authorized to bring the mobile homes onto their property and build a structure around the mobile homes without obtaining a permit, defendants contend that the De Kalb County Code exempts from BOCA regulation “farm buildings and structures as defined by chapter 34 of the Illinois Revised Statutes.” (De Kalb County Code §5.12(2).) Defendants further assert that section 5 — 12001 of the Counties Code exempts them from obtaining a permit for the mobile homes. Ill. Rev. Stat. 1991, ch. 34, par. 5-12001.

Section 5 — 1063 of the Illinois Counties Code provides in relevant part:

“For the purpose of promoting and safeguarding the public health, safety, comfort and welfare, a county board may prescribe by resolution or ordinance reasonable rules and regulations (a) governing the construction and alteration of all buildings, structures and camps or parks accommodating persons in house trailers, house cars, cabins or tents and parts and appurtenances thereof and governing the maintenance thereof in a condition reasonably safe from hazards of fire, explosion, collapse, electrocution, flooding, asphyxiation, contagion and the spread of infectious disease, where such buildings, structures and camps or parks are located outside the limits of cities, villages and incorporated towns, but excluding those for agricultural purposes on farms including farm residences ***.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 34, par. 5—1063.

Section 5 — 12001 of the Counties Code is a zoning statute which grants the county board authority to regulate and restrict the location, and use, of buildings, structures, and land for trade, industry, residence, and other use. (Ill. Rev. Stat. 1991, ch. 34, par. 5— 12001.) It further provides that the powers granted by the statute may not be exercised “to impose regulations or require permits with respect to land used for agricultural purposes.” Ill. Rev. Stat. 1991, ch. 38, par. 5 — 12001.

Defendants claim that they lived in the structure at issue because of its proximity to their livestock so that they could care properly for the livestock. They claim, therefore, that the structure was a farm residence used for “agricultural purposes” exempt from obtaining a permit under section 5 — 12001 of the Counties Code and from BOCA regulation under the express provisions of the De Kalb County Code. The County does not dispute that the land on which the structure sat was zoned for agricultural use or that defendants were engaged in an agricultural pursuit. The County argues, however, that a structure used as a residence is not used for an agricultural purpose, even if it is on agricultural land and used by a person engaged in agriculture.

In determining whether an activity involving use of the land has an agricultural purpose, courts look at the nature of the activity itself rather than to the property owner’s ultimate business objectives. (County of Kendall v. Aurora National Bank Trust No. 1107 (1988), 170 Ill. App. 3d 212, 216; Tuftee v. County of Kane (1979), 76 Ill. App. 3d 128, 132.) The agricultural use exemption from county regulation should not “be manipulated and twisted into a protection for virtually any use of the land as long as some agricultural activity [is] maintained on the property.” (County of Kendall, 170 Ill. App. 3d at 219.) The exemption should be construed so as not to “frustrate the obvious intent of the legislature to allow agriculture, and only agriculture, to be pursued without zoning restrictions.” County of Kendall, 170 Ill. App. 3d at 219.

In People v. Husler (1975), 34 Ill. App. 3d 977, 979 (Husler I), the court held that a mobile home which defendant used as a residence was not exempt from regulation by the county even though it was on agriculturally zoned property. Being on agricultural property did not transform the residence into an agricultural building. (Husler I, 34 Ill. App. 3d at 979.) That case, however, did not address whether defendant himself resided in the mobile home in order to facilitate an agricultural purpose. (See 1976 Att’y Gen. Op. 211, 212.) In County of Kendall v. Husler (1977), 44 Ill. App. 3d 1013 (Husler II), the same defendant was prosecuted again for occupying an unauthorized mobile home on his property. In the meantime, the county had amended its own mobile home ordinance to provide an exception from regulation where the occupant of the mobile home was substantially engaged in the business of agriculture. (Husler II, 44 Ill. App. 3d at 1015.) The court held that because defendant was substantially engaged in agriculture, he did not violate any ordinances by failing to obtain a permit for his mobile home. Husler II, 44 Ill. App. 3d at 1015-16.

We have found no cases directly addressing the definition of a “farm residence” or whether a structure that is used as a dwelling by persons who are engaged full-time in agricultural pursuits is “used for agricultural purposes” under section 5 — 1063 or section 5 — 12001. We do not agree with the County that residing on a farm is not a “farm residence” or that living in a structure to promote a full-time business of farming is not an “agricultural purpose.” The record reveals that defendants inherited the mobile homes and worked full-time on the land raising animals for use in petting zoos, pony and hay rides, and other similar activities. We determine that the mobile homes constituted a “farm residence” for “agricultural purposes.” Therefore, the express terms of the De Kalb County Code exempt defendants from BOCA regulation.

Defendants further argue that, even if the mobile homes were not agricultural within the meaning of section 5 — 1063 or section 5 — 12001 of the Counties Code, the De Kalb County Code did not require defendants to obtain a permit for the mobile homes. Section 4.09 of the De Kalb County Code regulates mobile homes as follows:

“No mobile home shall be used as a dwelling unit on any lot, plat or tract of land other than the one approved as a mobile home park by the county planning commission, the board of appeals, and the county board of supervisors licensed by the Illinois State Board of Health, except that full time, temporary, or permanent employees on agricultural pursuits, may be housed in mobile homes on the premises, if adequate sanitary facilities are provided and a distance of six hundred (600) feet is maintained from residential subdivisions.” (Emphasis added.) (De Kalb County Code §4.09(c).)

Under this provision, it seems that defendants would not have violated any ordinance by placing the mobile homes on their property and using them to house agricultural employees. Whether the mobile homes, themselves, could give rise to a violation of the De Kalb County Code depends on whether defendants, who lived inside the mobile homes, could be considered “employees on agricultural pursuits.” The De Kalb County Code does not define the term “employee.” The County has not addressed the specific issue of whether Steve and Barbara Vidmar were employees under section 4.09(c) of the De Kalb County Code, and the trial court never made a specific finding on that issue.

We determine, as a matter of law, defendants were employees under section 4.09(c). Defendants claimed in their affidavit filed May 24, 1991, as well as at trial, that they worked full-time to promote the endeavors of Friendly Farms, Ltd. At trial, Steve Vidmar claimed that his duties included supervising between 6 and 30 employees in caring for the animals. He also claimed that he cared for animals himself. He received compensation from Friendly Farms, Ltd., in the form of room and board. He stated that Barbara Vidmar’s duties included answering the phone, managing the checkbook, and overseeing “stuff.” Barbara was president of Friendly Farms, Ltd., and Steve was secretary and treasurer.

Plaintiff, however, indicates that defendants’ affidavit of April 5, 1991, described their positions of authority on the farm as employers. They did not mention their status as employees of Friendly Farms, Ltd., in this affidavit. However, the record illustrates that defendants operated and managed Friendly Farms. The fact that they employed others who also lived on the premises does not limit their status as employees. For these reasons, defendants were “employees on agricultural pursuits” as defined by section 4.09(c) of the De Kalb County Code.

For the foregoing reasons, we affirm the judgment of the circuit court of De Kalb County.

Affirmed.

BOWMAN and COLWELL, JJ., concur.