text:
      In re ESTATE OF ROBERT E. SPAULDING, Deceased (Virginia Tetzlaff, Plaintiff-Appellant, v. Michael J. Sottile, Indiv. and as Ex’r of the Estate of Robert E. Spaulding, Deceased, et al., Defendants-Appellees).
    First District (2nd Division)
    No. 1—88—1666
    Opinion filed August 29, 1989.

      Fred S. Posner, of Chicago, for appellant.
    Charles Locker, of Chicago (Frank Wicker, of counsel), for appellees.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff Virginia Tetzlaff appeals from an order of the circuit court granting defendants’ motion for summary judgment in an action to enforce an oral contract to make a will.

Robert Spaulding (Spaulding), the deceased in this case, was the director of a funeral parlor in Chicago. On June 8, 1978, he executed a will which provided that the bulk of his estate was to pass to his brother, William Spaulding, or if his brother should predecease him, to his brother’s wife, Elizabeth Spaulding. William Spaulding died on February 25, 1982.

Spaulding was murdered on July 21, 1986. His estate was opened on September 10, 1986. On October 14, 1986, plaintiff commenced this action as a supplemental proceeding in the probate division against the executor and the legatees named in Spaulding’s probated will, seeking specific performance of an oral contract to make a will leaving her Spaulding’s entire estate with the exception of one ring.

Plaintiff’s complaint alleges that (1) plaintiff “formed and maintained a bond of mutual love and affection” with Spaulding which led her on September 29, 1982, to move into his home at 5933 North Hermitage in Chicago; (2) plaintiff and Spaulding exchanged mutual promises to marry on September 7, 1986; (3) from the time plaintiff moved in with Spaulding, she lived with him until he died “as his companion in affection and esteem, sharing the privileges of the home with him, giving aid, comfort, and assistance to him, sharing the expenses of living and the maintenance of the home with him, entertaining for him and his friends and acquaintances, and either paid or assisted in paying for items contributing to the mutual enjoyment and happines’s of [Spaulding] and herself”; (4) in consideration for “the maintenance and continuation of their relationship[,]” Spaulding orally agreed on “numerous occasions” to make a will leaving plaintiff his entire estate with the exception of one ring; (5) in reliance on Spaulding’s promise to make a will, plaintiff “maintained and continued” her relationship with him and made arrangements for their marriage; (6) Spaulding “attempted to fulfill” his contract with plaintiff by drafting and signing a document on March 8, 1986, which purported to be his will and to leave his property to plaintiff, and which, until his death, Spaulding “acknowledged] and characterized]” as his “Last Will and Testament”; (7) plaintiff fully performed her obligations under the contract but Spaulding breached the contract by failing to execute a valid will leaving plaintiff all of his property; and, finally, (8) plaintiff is entitled to specific performance of the contract because she has no adequate remedy at law.

On July 17, 1987, plaintiff was deposed. Plaintiff testified at her deposition that in September 1982, after having known Spaulding for 23 years, she moved from 6731 Greenleaf in Woodridge, Illinois, to Spaulding’s home at 5933 North Hermitage in Chicago. At first plaintiff and Spaulding slept in separate bedrooms, but beginning sometime in 1985, they shared the same bed and had sexual relations.

Plaintiff testified that she “cooked, cleaned, did laundry” and other “usual household chores[,]” but that prior to moving in with Spaulding, she never had any conversation with him regarding any services to be performed by her as consideration for living in his home. Near the end of September 1982, the month plaintiff moved in, she agreed to pay Spaulding $250 per month “as her share for living in [his] home.” The cancelled checks included in the record indicate that plaintiff paid Spaulding $125 twice per month from January 1983 through July 15, 1986. The record also reflects that plaintiff wrote checks for party expenses in February 1984; for a wedding gift in April 1984; for radio batteries in March 1985; for a radio in September 1985; for television and video cassette recorder repairs in September 1985; for videotapes in November 1985; for window blinds and party expenses in October 1985; for video cassette recorder repairs in January 1986; for party expenses in April 1986; and, finally, for catering costs in July 1986.

Plaintiff testified further that the subject of Spaulding’s will was first raised by him in late 1983 or early 1984. Spaulding told plaintiff he would revoke his will and write a will to provide plaintiff with a “home and security for the future.” Plaintiff admitted that Spaulding had initiated the conversation and that she had never told him that she was unhappy or dissatisfied, or that the $250 per month that she was paying was unreasonable. After that initial conversation, plaintiff and Spaulding would talk about the subject of Spaulding’s will “every couple weeks or so.” But plaintiff admitted that she never told Spaulding that she would leave if he did not make a will for her.

At her deposition, plaintiff produced a document dated March 8, 1986, and signed by Spaulding which indicated Spaulding’s intention to leave plaintiff his entire estate with the exception of one ring. The document was given to plaintiff by Spaulding before Spaulding left for Florida on a vacation. Mark and Rose Wuertemburg gave Spaulding their permission over the telephone to sign their names as witnesses. According to Mark and Rose Wuertemburg, Spaulding told them that “it’s all taken care of” and that he was keeping “his promise” to plaintiff to make a will in her favor. According to plaintiff, when Spaulding gave her the document, he told her to “keep it” and when he returned from Florida he told her that he was “going to change the other will and revoke it.”

On March 21, 1988, defendants moved for summary judgment. Plaintiff resisted that motion with her own deposition testimony and affidavit, with copies of cancelled checks written by her payable to Spaulding, with the March 8, 1986, document, and finally, with affidavits of nine other persons. The affiants each stated that Spaulding had told them of his promise to make a will in plaintiff’s favor in return for the services plaintiff had provided for him.

Defendants did not submit any counteraffidavits. On May 16, 1988, defendants’ motion for summary judgment was granted.

I

Plaintiff maintains that the trial court erred in granting summary judgment in favor of defendants because the facts, when considered in the light most favorable to plaintiff, establish the existence and terms of a valid contract to make a will. Relying on several Illinois Appellate Court cases, most recently Skurat v. Kellerman (1977), 53 Ill. App. 3d 361, 368 N.E.2d 966, plaintiff asserts that (1) Illinois law “permits wide latitude in determining what constitutes valid and sufficient consideration for a contract to devise realty”; (2) she provided valid consideration in exchange for Spaulding’s promise to make a will in her favor by “continuing the relationship and her contributions to it and adding her further contributions, personal, monetary and spiritual to the wedding preparations”; (3) the existence of the 1978 will is not sufficient as a matter of law to preclude a finding that the oral contract existed, given the evidence of “prolonged, faithful service by the promisee, coupled with Deceased’s acknowledgements that he had provided, or intended to provide for the promisee to receive his property on his death”; (4) the March 8, 1986, document, although not a valid will, is nevertheless convincing evidence of the terms of the oral contract and Spaulding’s attempt to fulfill his obligations under the oral contract; and (5) other clear and convincing evidence of the existence of the contract and its terms was provided by Spaulding’s repeated acknowledgments to third persons of his commitment to make a will in plaintiff’s favor.

Plaintiff asserts further that she has no adequate remedy at law, because her “companionship” and the “myriad services she rendered to Spaulding” are not susceptible of measurement in monetary terms. Plaintiff claims that “damages at law would be palpably inadequate recompense for the unkept contract to will her the home, and could not adequately reflect the value [Spaulding] contemplated in gratitude for the loving kindness, attention and affection evident in Plaintiff’s personal services, monetary contributions to his household and social life, her promise to marry and her monetary, personal and spiritual contributions to the wedding preparations.”

Summary judgment is proper 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. 1987, ch. 110, par. 2 — 1005.) Summary judgment should be granted “only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt his right thereto.” (Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958.) Upon review of the trial court’s entry of summary judgment, the appellate court must determine whether the trial court was correct in ruling that no genuine issue of material fact was raised and whether entry of judgment was correct as a matter of law. Bernard v. Sears, Roebuck & Co. (1988), 166 Ill. App. 3d 533, 519 N.E.2d 1160.

A contract to make a will supported by valid and adequate consideration is enforceable in a court of equity. (See Burke v. Burke (1957), 12 Ill. 2d 483, 147 N.E.2d 373; Jatcko v. Hoppe (1955), 7 Ill. 2d 479, 131 N.E.2d 84; Moreen v. Estate of Carlson (1937), 365 Ill. 482, 6 N.E.2d 871.) However, in a suit for specific performance of a contract to make a will, the evidence of the existence of the contract and its terms must be clear and explicit and “so convincing that it will leave no doubt in the mind of the court.” (Greenwood v. Commercial National Bank (1955), 7 Ill. 2d 436, 440, 130 N.E.2d 753; In re Estate of Konow (1987), 154 Ill. App. 3d 744, 506 N.E.2d 450.) Mere statements by the deceased of his intention to make a will are not sufficient proof to warrant the inference that a contract of any kind was made. See Greenwood, 7 Ill. 2d at 441.

Although a contract may be based upon “services, support and care,” evidence of such acts does not necessarily provide sufficient proof that a contract existed. (See Greenwood, 7 Ill. 2d at 440.) In Greenwood, for example, the plaintiff alleged that she moved into the deceased’s house and performed housekeeping chores in reliance on the deceased’s promise to leave her the house, the contents of the house, and a car. (Greenwood, 7 Ill. 2d at 441.) “Numerous -witnesses” testified that the deceased had stated that he would “take care of” and “provide for” the plaintiff. (Greenwood, 7 Ill. 2d at 441.) Affirming the decree of the circuit court rejecting the plaintiff’s claim, the Illinois Supreme Court stated that “[t]he disconnected evidence in regard to the alleged contract amounted to nothing more than declarations of testamentary intention.” (Greenwood, 7 Ill. 2d at 441.) The court stated that while it may have been true that the deceased intended to do something for the plaintiff, “such mere statements and intentions are not sufficient,” and rejected the plaintiff’s argument that the statements of the deceased together with the acts of the parties provided clear, explicit and convincing proof that a contract existed. Greenwood, 7 Ill. 2d at 441.

Likewise, in Toms v. Lohrentz (1962), 37 Ill. App. 2d 414, 185 N.E.2d 708, the statements of the deceased and the services rendered by the plaintiff were not sufficient to establish the existence of a contract to make a will. In that case, the plaintiff alleged that in reliance on the deceased’s promise to make a will in her favor, she “sought no other male companionship, gave him a free dandruff treatment at the beauty parlor, bought stamps, clothing, license plates and photographic materials for him, frequently shopped for him and performed secretarial work for him from time to time.” (Toms v. Lohrentz, 37 Ill. App. 2d at 416.) The court stated: “There isn’t a syllable of evidence in this record that [the plaintiff] promised to do anything and thus a mutuality of promises is wholly lacking. Only through blind eredulity could we conclude that the services rendered by [the plaintiff] were in reliance on [the deceased’s] promise to make a will rather than the ageless human chemistry of male-female affinity.” Toms v. Lohrentz, 37 Ill. App. 2d at 417.

In this case, plaintiff has similarly failed to present sufficient proof of the existence of a contract to make a will in her favor. As in Greenwood and Toms, Spaulding’s statements to plaintiff and third persons that he would make a will in plaintiff’s favor are mere statements of testamentary intent and not sufficient proof of the existence of a contract to make a will. Also, as in Toms, there is no evidence that the household chores, the expenses, or the “love” and “affection” returned by plaintiff were in exchange for Spaulding’s purported promise to make a will rather than the result of ordinary “male-female affinity.”

Nor does the document dated March 8, 1986, provide the clear, explicit and convincing proof required to show the existence of a contract to make a will. Although the March 8, 1986, document is some evidence of Spaulding’s intent to leave plaintiff his property, it is not clear, explicit and convincing evidence of the existence of a contract to make a will in plaintiff’s favor, or of the terms of such a contract. Significantly, Spaulding never bothered to execute a valid will in plaintiff’s favor and never revoked his earlier will, even though he told plaintiff after he gave her the March 8, 1986, document that he would “change the other will and revoke it.” Thus, contrary to plaintiff’s assertion that the March 8, 1986, document is convincing proof of Spaulding’s attempt to fulfill his obligation under a contract to make a will, that document could just as easily reflect Spaulding’s intent to merely appease plaintiff and not to execute a valid will in plaintiff’s favor. Certainly, the March 8, 1986, document does not provide clear, explicit and convincing proof of the existence and terms of a contract to make a will.

Even if the pleadings, affidavits, and other documents in the record, when construed in the light most favorable to plaintiff, provide sufficient proof of the existence and terms of an oral contract to make a will, we do not believe plaintiff would be entitled to equitable enforcement of the contract. “ ‘It is only on the principle that it is unjust and inequitable to permit a contract to remain unexecuted that a court of equity will grant relief, and where the promisee shows no substantial change for the worse in his position in consequence of the agreement, relief will be denied.’ ” (Greenwood, 7 Ill. 2d at 440, quoting Linder v. Potier (1951), 409 Ill. 407, 411, 100 N.E.2d 602.) Indeed, “[t]he cases allowing specific performance to enforce an oral agreement to will or devise property to another, in consideration of services to be rendered, are universally those in which a gross fraud would be suffered if the promise of specific performance were denied.” Greenwood, 7 Ill. 2d at 439.

In Skurat v. Kellerman (1977), 53 Ill. App. 3d 361, 368 N.E.2d 966, for example, the plaintiff left Chicago at her uncle’s request to live on his farm, cook, clean and care for him in his old age, work in the fields, and care for livestock and poultry. The plaintiff cared for her uncle for “virtually” 10 years before he died. During that time, the plaintiff’s uncle had told “numerous people” that he was going to will her the farm. The trial court awarded specific performance of the agreement to make a will. On appeal, the court affirmed, stating that it could “infer from the facts and conduct of the parties including the statements of the deceased to other people, that the farm was to be given to plaintiff if she cared for decedent.” Skurat v. Kellerman, 53 Ill. App. 3d at 365-66.

In this case, by contrast, the facts, when construed in the light most favorable to plaintiff, do not establish that plaintiff substantially changed her position for the worse in reliance on Spaulding’s promise to make a will. By plaintiff’s own admission, she moved in with Spaulding in September 1982 and the subject of Spaulding’s will was not discussed until late 1983 or early 1984. Plaintiff plainly could not have moved into Spaulding’s home or performed any services before the will was discussed in reliance on Spaulding’s alleged promise to make a will. Plaintiff nonetheless argues that the facts construed in her favor show that she “continued” and “maintained” the relationship and also “continued” to perform household chores and pay for household and party expenses in reliance on Spaulding’s promise to make a will.

However, even accepting plaintiff’s suggestion that she continued her relationship with Spaulding because he promised to make a will in her favor, the facts do not show such substantial change for the worse in her position as would warrant equitable enforcement of the contract. Specifically, the services performed by plaintiff were plainly for her benefit as well as Spaulding’s. Nothing in the record suggests that a “gross fraud” would result from a failure to specifically enforce the alleged promise to leave Spaulding’s entire estate with the exception of one ring to plaintiff in exchange for such mutually beneficial services provided by plaintiff. Moreover, plaintiff has an adequate remedy at law to recover for many of the services allegedly performed in reliance on Spaulding’s promise to make a will. Significantly, defendants do not claim that plaintiff’s remedy at law is barred by either the statute of limitations or the Statute of Frauds (Ill. Rev. Stat. 1985, ch. 59, par. 1 et seq.) and the cancelled checks produced by plaintiff herself establish that many of the services provided by plaintiff are susceptible of being valued in monetary terms.

II

Finally, plaintiff maintains that the trial judge construed her suit as a palimony case and erroneously granted defendants’ motion for summary judgment under Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 394 N.E.2d 1204. In Hewitt, the Illinois Supreme Court rejected, as against public policy, judicial enforcement of agreements between unmarried cohabitants founded on sexual relations. Plaintiff argues that Hewitt is distinguishable because she does not allege sexual relations as the sole consideration for Spaulding’s promise to make a will in her favor.

However, the record does not support plaintiff’s contention that the trial court erroneously granted defendants’ motion on palimony grounds. On the contrary, the trial court plainly relied on principles of contract law in ruling on the motion. The trial court stated that the issue to be decided was whether plaintiff and Spaulding had entered into an oral contract to make a will. The trial court correctly observed that “[i]n order to find that an oral contract to make a will is a valid contract, the evidence before the Court must be clear, explicit and convincing.” The trial court also properly noted that “expressions of the deceased of a testamentary intent, are not sufficient to support the requirements to establish an oral contract.” The trial court stated that it had reviewed the pleadings, deposition transcript, and affidavits in the light most favorable to plaintiff, and concluded that no genuine issue of material fact existed to withstand defendants’ motion. Accordingly, the record does not support plaintiff’s contention that the trial court ignored relevant law and improperly relied on Hewitt in ruling on defendants’ motion.

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

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DiVITO

license: Public Domain

text:
    SHARON SHOEMAKER, Plaintiff-Appellant, v. RUSH-PRESBYTERIAN-ST. LUKE’S MEDICAL CENTER, Defendant-Appellee.
    First District (2nd Division)
    No. 1—88—2919
    Opinion filed August 29, 1989.

      Emory Andrew Tate & Associates, Ltd., of Chicago (Robert L. Schroeder, of counsel), for appellant.
    Davis, Barnhill & Galland, of Chicago (George E Galland, Jr., and Paul Strauss, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Plaintiff-appellant, Sharon Shoemaker, appeals from an order of the circuit court granting defendant-appellee, Rush-Presbyterian-St. Luke’s Medical Center (Rush), summary judgment in a personal injury action. She contends that the circuit court erred in: (1) not affording her sufficient time to answer the motion for summary judgment; (2) granting summary judgment where a genuine issue of fact existed; and (3) granting summary judgment despite Rush’s duty to prevent injury caused even by natural accumulations of water in its building.

Plaintiff’s left leg had been amputated just below the knee in June 1984. In August 1984, she had been fitted for a prosthesis. In September 1984, she was a graduate nursing student at Rush.

On September 29, 1984, at about noon, plaintiff entered one of Rush’s buildings, the Professional Building. On that day, she was not wearing her prosthesis, but was walking with the aid of crutches. She took the elevator to the fourth floor of the Professional Building. As she exited the elevator, she put her crutches on the floor inside the elevator and her foot on the floor outside the elevator. When she put her crutches down the next time on the floor outside the elevator, the left crutch went out from under her and she fell and struck her stump, causing the injury which gave rise to this lawsuit.

Plaintiff was deposed on November 6, 1987. She stated that it had been raining on the day of the accident from the time she left her home in the morning. She had fallen four hours earlier, in another location, due to the accumulation of water. She noticed that the sidewalks were wet, that people were tracking water into Rush’s building, and that they were shaking off their coats and umbrellas inside the building. Plaintiff recalled that the floor of the elevator was wet. She described the floor where she fell as either “linoleum or polished concrete or something.” She stated that there was a small lobby in front of the elevators which was wet. She described the water on which she fell as “little puddles, sprinkles, anywhere from half an inch wide to two inches wide.” She stated that if there was a handrail outside the elevator, she would not have used it.

A motion for summary judgment, pursuant to section 2 — 1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005), was filed by Rush on March 30, 1988. Copies of pertinent portions of plaintiff’s deposition, the complaint, and an affidavit of the building operator for the Professional Building were attached to the motion. The building operator stated that no nursing classes occurred in the building; that no rehabilitation facilities were located within the premises, such that it would be likely that a person would walk in on crutches or use prosthetic devices; and that there were handrails along the hallways.

On August 25, 1988, the circuit court considered the briefs and evidentiary material which had been filed and heard argument on the motion. The court then granted Rush’s motion for summary judgment. In rendering its decision, the trial court found that the facts were not in dispute and that “no duty was owed to this plaintiff by this defendant to remove the natural accumulations of water upon which she slipped.”

It is from this order that on August 26, 1988, plaintiff appealed to this court.

I

Arguing that the motion was insufficient as a matter of law, plaintiff initially filed a motion to strike the motion for summary judgment. Plaintiff argues that after the trial court denied her motion to strike, it should have then allowed her an opportunity to answer the motion. Rush maintains the trial court gave plaintiff more than ample opportunity to contest the motion for summary judgment.

The record shows that plaintiff was afforded sufficient opportunity to respond to the motion for summary judgment. Rush filed its motion for summary judgment on March 30, 1988. Plaintiff filed her motion to strike based on legal insufficiency, on June 2, 1988. On June 20, 1988, the court denied plaintiff’s motion to strike. On the same day, the record shows that the court explained that if plaintiff’s basis for opposing the summary judgment was due to its legal insufficiency and if she were relying upon facts not in the record, then she was to file counterevidentiary material under section 2 — 1005 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005.) Pursuant to plaintiff’s request for leave to file a supplemental answer, the court granted her, in accordance with section 2 — 1005, any time up until August 25, 1988, the date the court set for arguments concerning the motion for summary judgment. The record indicates that no supplemental material was filed by plaintiff.

Plaintiff failed to file anything which might show a triable issue. She was given adequate opportunity to do so. The trial court therefore did not err when it granted summary judgment for Rush when no counteraffidavits or counterevidentiary material was filed by plaintiff. The circuit court followed correct procedures in determining whether there was any genuine issue of material fact.

II

Plaintiff contends that the trial court erred when it entered summary judgment in favor of Rush when there was a genuine issue of fact concerning whether the accumulation of water upon which she fell was natural in origin. She argues that Rush’s motion for summary judgment was insufficient as a matter of law because Rush failed to establish that the origin of the water was in fact a natural accumulation of water tracked in from outside. For the first time on appeal, plaintiff suggests that the accumulation of water described in her deposition may have been the result of some maintenance procedure, and not from the rain dripping off of persons’ umbrellas, coats, and other articles.

In response, Rush contends that the trial court correctly based its decision about the source of the water from the evidentiary material before the court, especially plaintiff’s own deposition in which she described the circumstances surrounding her fall. Rush asserts that the court properly concluded that the water was rainwater tracked in by pedestrians. Moreover, Rush argues that plaintiff has waived her current argument of “other causes” because she did not raise it in the trial court.

In order to recover as a consequence of a fall on ice, snow, or water, plaintiff must establish that the accumulation was unnatural in origin and was created directly or indirectly by Rush. (Bernard v. Sears, Roebuck & Co. (1988), 166 Ill. App. 3d 533, 535, 519 N.E.2d 1160, citing Galivan v. Lincolnshire Inn (1986), 147 Ill. App. 3d 228, 229, 497 N.E.2d 1331; see also Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 488 N.E.2d 679; Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 467 N.E.2d 947; McCann v. Bethesda Hospital (1980), 80 Ill. App. 3d 544, 400 N.E.2d 16.) While plaintiff need not prove her case at the summary judgment stage, she is required to come forward with some evidentiary facts or material to show that the water upon which she slipped was of unnatural origin. (Bedeker v. School District No. 40 (1981), 92 Ill. App. 3d 618, 416 N.E.2d 68; Gehrman v. Zajac (1975), 34 Ill. App. 3d 164, 340 N.E.2d 184; Byrne v. Catholic Bishop (1971), 131 Ill. App. 2d 356, 266 N.E.2d 708.) In the absence of such a showing, summary judgment for defendant is appropriate since the court owes no duty to reason some remote factual possibility. Gilberg v. Toys “R” Us, Inc. (1984), 126 Ill. App. 3d 554, 558, 467 N.E.2d 947.

This court is bound to take cognizance of and consider only those issues which are supported by the record. (Rasky v. Department of Registration & Education (1980), 87 Ill. App. 3d 580, 586, 410 N.E.2d 69, appeal dismissed (1981), 454 U.S. 806, 70 L. Ed. 2d 75, 102 S. Ct. 78.) While plaintiff is correct in her assertion that summary judgment should not be granted if documents on file show that there is a genuine issue as to material fact (Burnley v. Moore (1963), 41 Ill. App. 2d 156, 190 N.E.2d 141), there is no evidence in the record, including the memorandum that was filed in the trial court by plaintiff, that shows that “other maintenance procedures” possibly caused the water on the fourth floor.

The only evidentiary materials in the record are the depositions of plaintiff and the building operator. The trial court based its decision on plaintiff’s own description of the circumstances surrounding the fall. There is no evidence in the record that would allow a fact finder to find that the water upon which plaintiff slipped was of unnatural origin. Therefore, there was no genuine triable issue of material fact. Summary judgment was correctly granted.

III

Plaintiff relies upon the factors set forth in Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231, in arguing that the circuit court should have held that Rush had a duty to remove even natural accumulations of water: (1) whether the occurrence or accident was foreseeable; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against the injury from occurring; and (4) the consequences of placing that burden upon the defendant. Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231; see also Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 526, 513 N.E.2d 387.

Here, the trial court considered the Lance criteria and found that its third and fourth factors were not satisfied. Specifically, the court reasoned that it was against public policy interests in a large metropolitan area to require building owners with elevators to remove natural accumulation of tracked-in rainwater. We agree, and we note that courts have uniformly held that landowners charged with exercising an ordinary degree of care have no duty to clean up natural accumulations of water tracked into buildings from the outside. Bernard v. Sears, 166 Ill. App. 3d 533, 519 N.E.2d 1160; see also Lohan v. Walgreens Co., 140 Ill. App. 3d 171, 488 N.E.2d 679; Gilberg v. Toys “R” Us, Inc., 126 Ill. App. 3d 554, 467 N.E.2d 947; Walker v. Chicago Transit Authority (1980), 92 Ill. App. 3d 120, 416 N.E .2d 10.

Furthermore, the trial court noted that an elevator is considered a common carrier (Steiskal v. Marshall Field & Co. (1908), 238 Ill. 92, 96, 87 N.E. 117) and, as such, the operator is charged with exercising the highest degree of care consistent with the operation of business. (Springer v. Ford (1901), 189 Ill. 430, 434, 59 N.E. 953.) Additionally, the passenger-carrier relationship does not terminate until the passenger has had a reasonable opportunity to reach a place of safety. Pharr v. Chicago Transit Authority (1984), 123 Ill. App. 3d 205, 208, 462 N.E.2d 753, citing Loring v. Yellow Cab Co. (1975), 33 Ill. App. 3d 154, 337 N.E.2d 428.

The trial court correctly noted that based on plaintiff’s deposition testimony, her injury occurred while she was in the act of alighting from the elevator itself, and therefore, Rush owed the highest degree of care and duty to her. Notwithstanding that high standard, the court properly granted summary judgment. This court has held that a common carrier held to the highest degree of care has no duty to clean up natural accumulations of water. Serritos v. Chicago Transit Authority (1987), 153 Ill. App. 3d 265, 505 N.E .2d 1034, appeal denied (1987), 116 Ill. 2d 576, 515 N.E.2d 127 (CTA has no duty to keep steps free of naturally accumulated water or snow); see also Galivan v. Lincolnshire Inn, 147 Ill. App. 3d 228, 497 N.E.2d 1331 (hotel has no duty, although held to the highest degree of care, to remove naturally accumulated snow).

. Plaintiff now asserts that the trial court failed to consider other less burdensome means of prevention and should have considered requiring Rush to utilize rugs or carpeting to meet its duty. As Rush correctly asserts, plaintiff did not raise this contention in the trial court. Arguments not raised in the trial court are beyond this court’s scope of review and are waived. Witek v. Leisure Technology Midwest, Inc. (1976), 39 Ill. App. 3d 637, 640, 350 N.E.2d 242.

However, plaintiff’s new argument also fails to meet the Lance criteria. (Lance v. Senior (1967), 36 Ill. 2d 516, 518, 224 N.E.2d 231.) Requiring building operators to carpet lobbies and halls on each elevator stop would place a tremendous burden on them without any assured results. Plaintiff ignores the fact that wet rugs, just like wet floors, are often alleged by plaintiffs to have been the causes of their falls. See Bernard v. Sears, 166 Ill. App. 3d 533, 519 N.E.2d 1160; Lohan v. Walgreens, 140 Ill. App. 3d 171, 488 N.E .2d 679.

Finally, since there was no evidence in the record showing that the absence of rugs or “other devices” caused plaintiff to suffer her fall, summary judgment was properly granted. As the court held in Bernard v. Sears, a plaintiff cannot resist summary judgment in a slip-and-fall case simply by arguing about the possible effect of a rug, without offering any evidence to support the argument. (Bernard v. Sears, 166 Ill. App. 3d 533, 519 N.E.2d 1160.) The court did not err in granting summary judgment since no facts were offered to support the argument she first raises in this court.

The record shows that the court carefully considered the evidentiary material and reasonably concluded, from all the facts and circumstances surrounding the fall, as described by plaintiff herself, that the water accumulated naturally and that Rush owed no duty to remove or prevent it.

For the foregoing reasons the circuit court judgment is affirmed.

Affirmed.

BILANDIC, P.J., and HARTMAN, J., concur.


author: JUSTICE RIZZI

text:
    JOHN E. NORTON, Plaintiff-Appellant, v. PAUL C. NICHOLSON et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—87—1477
    Opinion filed August 30, 1989.
    Rehearing denied September 27, 1989.

      John E. Norton, of Chicago, appellant pro se.

    Thomas H. Donohoe, of Chicago, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, John E. Norton, initiated this judicial proceeding by filing a complaint for administrative review and declaratory judgment. A third amended complaint was subsequently filed by plaintiff, pro se, naming as defendants Paul C. Nicholson, Frank G. Benak, Lois J. Fleming and the Village of Western Springs (the Village). In his third amended complaint, consisting of eight counts and three volumes of attached exhibits, plaintiff sought the issuance of a writ of certiorari for judicial review of a decision of an administrative agency, mandamus, declaratory relief, injunctive relief and damages pursuant to 42 U.S.C. §1983 (1976). The trial court dismissed the third amended complaint on the basis that it was insufficient to state a cause of action, and denied plaintiff leave to file a fourth amended complaint. We affirm.

Defendant Benak is the fire chief for the Village Department of Fire and Emergency Medical Services (the Department). Plaintiff was employed for 10 years as a part-time employee for the Department. He was classified as a fire fighter/EMT and he received a salary on an hourly basis for fire fighting, rescue and emergency medical duties, conducting training and educational sessions, stand-by coverage, and other special duties.

On July 2, 1984, plaintiff prepared a memorandum which he addressed to the Village “Chain of Command.” He distributed the memorandum to four lieutenants who were his immediate superiors in the Department. The memorandum was critical of a change in fire apparatus response and procedure, and the memorandum made it plain that the plaintiff had unsuccessfully attempted to bring his criticism to the attention of the fire chief, Benak. The memorandum states:

“I tried to clarify some of this with the Fire Chief, but he ‘made a face’ and walked away from me without a word. I can only guess that he couldn’t answer unless it went through the ‘chain of command.’ ”

Although plaintiff’s memorandum was not addressed to Benak or given to Benak by plaintiff, it was received by Benak. On July 3, 1984, Benak sent the following letter to plaintiff:

“I have received a copy of your July 2,1984 memo.
As I look over the past several years I can see the progress that has been made in the area of fire protection and emergency medical services. Much of this progress is due in no small part to your work.
However, in every organization there comes a time when people must pull together without constant sniping, backbiting and sarcasm. I am therefore requesting that you tender your resignation to this department, effective immediately.”

On July 4, 1984, plaintiff sent Benak a letter advising him that he would not comply with his request to resign from the Department. Plaintiffs letter states, inter alia:

“I also find it difficult to comprehend how I am to be responsible for the ‘constant sniping, backbiting, and sarcasm’ going on in the department when, in fact, my presence at the fire station has minimized for the express purpose of avoiding the significant constant sniping, backbiting, and sarcasm that has been going on, often in your presence and sometimes at your instigation. I’m not accusing you of any wrongdoing, just that you have fostered the very activity that you now criticize. Every instance in which you have requested some action or inaction on my part I have complied with, with the exception of activities that were illegal, unethical, or unsafe. As you know, I have always felt compelled to comment, within the rational modes of communication, illegal activities, unsafe practices, tactical flaws, unsound training pedagogy, etc. You also should know that you, personally, have encouraged such activity on my part when it suited your needs (and I have documentation to that effect). What is most surprising is that during the lowest level of such activity on my part in the last decade, you should now find it objectionable.
* * *
Sincerely,
John E. Norton
‘Assassination is the extreme form of censorship.’ — George Bernard Shaw
‘It’s impossible for ideas to compete in the marketplace if no forum for their presentation is provided or available. ’ — Thomas Mann.
‘Extremists think ‘communication’ means agreeing with them.’ — Leo Rosten
‘Knowledge without conscience is the ruination of the soul.’— Francois Rabelais” (Emphasis in original.)

On July 5, 1984, Benak sent plaintiff a letter advising him that he was being terminated as a fire fighter as of July 5, 1984. The letter states, inter alia:

“The grounds for dismissal are as follows:
(a) Village Personnel Manual Chapter IX, Section 9.1
1.11 That the employee is antagonistic in attitude toward his superior officers or other employees, criticizing orders or policies issued and policies adopted by superiors or so acts as to interfere with proper cooperation of employees of the Village to the detriment of efficient public service.
(b) Fire Department Rules and Regulations 1 — 5—3
2. If the employee has been abusive in attitude, conduct and language in public, or toward the public, Village officials or employees, or has been abusive in conduct resulting in physical harm or injury to other employees or the public, either on or off duty.
Attached is Chapter XI of the Personnel Code stating appeal procedures.”

Plaintiff requested an appeal of Benak’s action in terminating his employment with the Department. Accordingly, an administrative hearing was had on July 23, 1984, before the village manager, Nicholson, and the director of personnel, Fleming. Plaintiff and his representative submitted both oral presentations and written documents. Also, plaintiff was afforded added time to submit additional documents, which were subsequently submitted.

One of the documents, dated July 26, 1984, submitted by plaintiff relates to his past verbal discussions with Benak on procedural and operation matters. The document states:

“[The] following is a conservative estimate of some of the verbal criticisms I’ve communicated to the Fire Chief within the past two years:
- At least on two occasions (prior to written memo) criticizing the commonly practiced ‘alternator load dumping;’
- At least two times criticizing the allowance of oil and paint use or storage near oxygen cylinders;
- Over three times criticizing hose loads, lengths, or treatment;
- Several times criticizing lack of certain equipment to be carried on apparatus, Fire & EMS;
- Numerous times criticizing backing hazards, personnel riding on rear step, standing up in jump seats, not wearing air packs;
- Several times criticizing the methodology of hydrant testing and color coding of hydrants;
- Several times criticizing the lack of conforming to IDPH requirements in drills and paperwork;
- At least two times criticizing the elimination of a deluge on Engine 440;
- Numerous times criticizing lack of concern for ISO requirements (both before and after his ‘newfound interest’);
- Several times criticizing Engine 440’s procedure on fire alarms in sprinklered buildings;
- Several times (over 3) criticizing contents of Engine 440’s hydrant hookup bag;
- At least ten times criticizing his ‘holding up’ apparatus;
- One time criticizing practice of riding with open rear windows of ambulance 340 (a CO hazard);
- Numerous times about illegal use and nonuse of emergency warning devices;
- Several times criticizing not communicating the need to replace the ‘Snorkel’ with an aerial ladder;
- Several times criticizing the lack of use of apparatus to secure accident scenes;
- At least two times criticizing his lack of restriction as to who is qualified to drive fire apparatus;
- Two times criticizing his poor example by not wearing protective clothing at fire scene.
In no instance of any of the above verbal communication was any hint of violation of any rules or regulations given. In some of the above instances, raised voices and harsh words were generated by both of us and witnessed by others.” (Emphasis in original.)

On August 16, 1984, Nicholson advised plaintiff of his written decision as the village manager. The decision, which changed plaintiff’s dismissal to a 30-day suspension, provides, inter alia:

FINDINGS
“[My] findings regarding your appeal are as follows:
(1) That the disciplinary decision of the Director of Fire and Emergency Medical Services that your drafting and distribution of a memorandum dated July 2, 1984, addressed to ‘The Chain of Command’ from yourself constituted a violation of the above-referenced sections of the Village Personnel Manual and the Fire Department Rules and Regulations is affirmed.
(2) That the order of dismissal from the Department of Fire and Emergency Medical Services be reduced to suspension for a period of thirty (30) days without pay, effective August 16, 1984, and ending September 14,1984.
(3) That the Director of Fire and Emergency Medical Services delineate in writing those specific elements of performance and conduct to which you are expected to conform, which are attached hereto and upon which your performance shall be evaluated and reviewed over a ninety (90) day period commencing August 16,1984, and ending November 15,1984.
(4) That the Director of Personnel provide you with compensation for the period of time from July 5, 1984 through August 15, 1984, based upon your demonstrated level of participation with the department over the twelve (12) months preceding this action.
DISCUSSION
The foregoing findings are based upon my review of your actions [of] July 2, 1984, in the issuance of the subject memorandum. In the opinion of this reviewer, those actions were clearly a violation of the Western Springs Personnel Manual, Chapter IX, Section 9 — 1, 1.11 and Section 1 — 5—3, 2 of the Fire Department Rules and Regulations, in that as an employee, you were antagonistic in your attitude toward your superior, that you criticized his orders and policies as issued and adopted, and as such, interfered with the proper cooperation of employees at the Village to the detriment of efficient pubic service; clearly, a breach of minimum standards of conduct, and work performance.
Further, your actions in issuing your memorandum dated July 2, 1984, exhibit an attitude and type of individual behavior which, while in the past may have been tolerated, will no longer be tolerated or permitted. Such actions are not acceptable employee behavior.
Furthermore, your memorandum dated July 2, 1984, whether intended or otherwise, constituted an embarrassment to the Director of Fire and Emergency Medical Services, and a direct challenge to his authority as the chief operating officer of the department, Village management and the Village Board. The selected distribution of this memorandum to the officer core of the department constituted a disruptive action detrimental to the efficient operation of the department and the need for all employees within the department to cooperate toward the achievement of common organizational goals in the delivery of fire and emergency medical services to the residents of the Village of Western Springs.
Under the foregoing circumstances, in my judgment, Chief Benak did not act unreasonably, or in an arbitrary fashion in finding that your actions of July 2, 1984, were a serious breach of the provisions of the Western Springs Personnel Manual and the Fire Department Rules and Regulations which warranted serious disciplinary action.
* * *
CONCLUSION
In conclusion, it is appropriate that I recognize the fact that you have made a contribution to the Western Springs Department of Fire and Emergency Medical Services. However, it is appropriate that we underscore that all employees must cooperate and work toward the achievement of common organizational goals and objectives as set forth by the department head, Village management and the Village Board. Failure to do so will result in further disciplinary action and/or possible dismissal from the department. It is our hope that the severity of this incident, and the resulting discipline, will serve to amend your behavior so as enable you to continue to be able to contribute to the department.”

Pursuant to Findings paragraph (3), plaintiff was given a written directive from Benak, dated August 18, 1984, which provides:

“FROM: Frank C. Benak, Director of Fire and EMS
RE: John Norton Disciplinary Action
In order to promote departmental function and progress, the employee shall at all times conduct himself according to the following:
(1) Refrain from all activities in which the employee is antagonistic in attitude toward his superior officers, or other employees, criticizing orders or policies issued, and policies adopted by superiors, or so acts as to interfere with proper cooperation of employees of the Village to the detriment of efficient public service.
(2) Refrain from all activity in which the employee may induce, or attempt to induce, an officer or an employee of the Village to commit an unlawful act, or to act in violation of any lawful departmental or official regulation or order.
(3) In matters of general conduct not within the scope of departmental rules and regulations, the employee shall be governed by the ordinary and accepted rules of good behavior observed by law abiding and self-respecting citizens. He shall be held strictly responsible for disorderly, disgraceful, and unlawful conduct, or the commission of any act tending to bring discredit to, or adversely reflect upon, the department, whether on or off duty.
(4) When the employee wishes to discuss or question departmental rules or regulations, or lawfully issued orders or policies, the employee shall request an appointment with either the Assistant Chief or Chief of the department to discuss the matter.
Failure to observe basic rules of conduct and performance, as outlined in the Village Personnel and Fire Department Rules and Regulations, will result in further disciplinary action, as provided by the manuals.”

Within 30 days from receipt of Benak’s written directive, plaintiff filed his complaint for administrative review and declaratory judgment. On January 7, 1985, while the suit was pending in the circuit court, plaintiff wrote a memorandum addressed to the assistant fire chief, which criticized a proposed change in the use of some newly purchased fire department equipment. Plaintiff, the assistant fire chief and Benak were on the committee that had approved the prior method for the use of the new equipment. While he was a member of that committee, at the direction of committee members Benak and the assistant fire chief, plaintiff had written a report justifying the position that had been taken by that committee.

In his January 7, 1985, memorandum to the assistant fire chief, plaintiff made reference to the fact that as a member of the former committee, he had written a report justifying the position that had been taken by the former committee, and that he had done so at the direction of Benak and the assistant fire chief. After criticizing the proposed change, plaintiff stated in his January 7,1985, memorandum:

“I guess I was just totally ‘suckered’ into an insincere ploy and became a party to deceitful communication.”

Plaintiff also stated in his memorandum that in assessing the proposed change one “approach renders the following judgment: Either all three of us on the committee were really stupid, ill-advised, and naive; or we are guilty of willful deceit and connivance; or someone has an extremely short memory.”

On January 31, 1985, Benak sent plaintiff the following letter terminating his employment:

“You are hereby notified that you are being terminated as a volunteer firefighter-EMT for the Village of Western Springs Department of Fire and Emergency Medical Services.
On August 17, 1984, as part of a proceeding which led to your suspension for thirty (30) days, you were requested orally and in writing to refrain from all activities in which you were antagonistic in attitude toward your superior officers. You were requested to refrain from actions which criticized orders or policies of supervisors, and to refrain from actions which interfere with the proper cooperation of employees of the village to the detriment of efficient public service.
The foregoing standard of conduct is set forth in the Village’s Personnel Manual, and applies to all village employees. Further, the Fire Chief’s memorandum of August 17, 1984, concluded that your failure to observe such a rule of conduct could result in disciplinary action.
Your letter of January 7, 1985, to Assistant Chief Seivwright, a copy of which is attached, again clearly shows your antagonistic attitude toward superior officers, Mr. Seivwright, and myself; and the manner in which the criticism is stated creates an atmosphere wherein proper cooperation between Fire Department volunteers and their superiors is impossible. Your letter accuses Mr. Seivwright and myself of a conspiracy to mislead the Village Manager and the Board of Trustees; an accusation that is not true, but an accusation now made that raises an issue regarding my integrity and one that places my position with the Village Manager and the Board of Trustees in question. As a result, your actions lead me to again conclude that your presence is detrimental to the spirit of teamwork and cooperation needed in the Department of Fire and Emergency Medical Services, and therefore, I am terminating you as a volunteer firefighter-EMT.”

Plaintiff sent a letter to Nicholson, the village manager, requesting an appeal of his termination. On February 5, 1985, Nicholson sent plaintiff the following notice affirming his termination:

“I am in receipt of an unsigned memorandum dated February 2, 1985, from yourself, appealing your termination from the Western Springs Department of Fire and EMS, effective January 31, 1985, by Director Frank Benak. Specifically, you request an appeal of the notice of termination under the provisions of Article 11 — 2, Disciplinary Appeal Procedures, Exclusive of Classified Service Employees.
REVIEW
I have completed a review of the facts leading to Chief Benak’s disciplinary action of January 31, 1985. I have specifically reviewed your memorandum of January 7, 1985, addressed to Assistant Chief Seivwright, as well as your previous disciplinary record. Further, I have carefully reviewed the contents of the January 7th memorandum with the Village Attorney and the President and Board of Trustees.
FINDINGS
As a result of my review of this specific action, I have concluded that a further hearing is not warranted. My findings are as follows:
1) That the contents of a memorandum from yourself to Assistant Chief Seivwright, dated January 7, 1985, are antagonistic toward your superior officers, and interfere with the proper cooperation of the department’s employees to the detriment of efficient public safety service.
2) That your action in submitting the subject memorandum was contrary to a disciplinary proceeding on August 17, 1984, at which time you were requested orally and in writing to refrain from activities in which you were antagonistic in attitude toward your superior officers.
3) That the subject memorandum is a violation of basic standards of conduct, as set forth in the department’s rules and regulations and the Village Personnel Manual; specifically Article 9.1.11.
4) The accusatory nature of the subject memorandum is detrimental to the spirit of teamwork and cooperation needed within the Department of Fire and Emergency Medical Services in order for that department to meet the health, safety and welfare needs of the residents of the Village of Western Springs.
CONCLUSION
In conclusion, your actions of January 7th, including the distribution of the memorandum, are not in keeping with acceptable standards of the employer/employee relationship, and certainly not in keeping with acceptable standards of employee conduct. As a result of the foregoing review of this latest incident, the decision of Director Benak is affirmed, and your termination as a Firefighter/EMT with the Western Springs Department of Fire and Emergency Medical Services sustained.”

On February 28, 1985, plaintiff filed his first amended complaint for mandamus, declaratory relief, and administrative review relating to his suspension and termination. Eventually, plaintiff, pro se, filed his third amended complaint for mandamus, declaratory relief, and certiorari review.

Initially, we note that this case does not fall within the jurisdictional ambit of the Administrative Review Act (Ill. Rev. Stat. 1987, ch. 110, pars. 3 — 101, 3 — 102). (Quinlan & Tyson v. City of Evanston (1975), 25 Ill. App. 3d 879, 324 N.E.2d 65.) The appropriate method of review of municipal administrative agency decisions is by way of a common law writ of certiorari. Thus, we will review this case as though certiorari had been granted by the circuit court. Nowicki v. Evanston Fair Housing Review Board (1975), 62 Ill. 2d 11, 15, 338 N.E.2d 186, 188; Quinlan & Tyson, 25 Ill. App. 3d at 884, 324 N.E.2d at 70.

In a common law certiorari proceeding, the court determines from the record alone whether there is any evidence fairly tending to support the order reviewed, and the court cannot set aside the order unless it is contrary to the manifest weight of the evidence. Also, it is well established that a decision of an administrative agency should not be reversed unless it is contrary to the manifest weight of the evidence, and that in reviewing a decision of an administrative agency, the findings and conclusions on questions of fact are prima facie true and correct. It is not the court’s function to resolve conflicting evidence. Collura v. Board of Police Commissioners (1986), 113 Ill. 2d 361, 372-73, 498 N.E.2d 1148, 1153; Nowicki v. Evanston Fair Housing Review Board, 62 Ill. 2d at 15, 338 N.E.2d at 188; Piotrowski v. State Police Merit Board (1980), 85 Ill. App. 3d 369, 374, 406 N.E.2d 863, 867.

Here, it is plain from the admitted facts which we have previously set forth that the administrative agency’s findings on August 16, 1984, that plaintiff’s distribution of his July 2, 1984, memorandum addressed to “The Chain of Command” constituted a violation of the Village personnel manual and the fire department rules and regulations as set forth in the decision. Thus, we conclude that the administrative agency’s order of August 16, 1984, is more than fairly supported by the evidence and is not contrary to the manifest weight of the evidence.

Moreover, as a result of its findings, it was within the realm of reasonable disciplinary action for the administrative agency to suspend plaintiff for a period of 30 days without pay, and to direct that the Director of Fire and Emergency Services delineate in writing those specific elements of performance and conduct to which plaintiff was expected to conform, and upon which plaintiff’s performance was to be evaluated and reviewed over a 90-day period. Also, we take notice that ño disciplinary action was brought against plaintiff for anything that he did during the 90-day period, and plaintiff does not allege that he refrained from any action or comment during the 90-day period. Thus, from the perspective of a judicial review of an administrative ruling, plaintiffs challenge to the propriety of the August 18, 1984, written directive from Benak is moot.

In addition, in its August 16, 1984, decision, the administrative agency provided that “it is also appropriate that we underscore that all employees must cooperate and work toward the achievement of common organizational goals and objectives as set forth by the department head, Village management and the Village Board. Failure to do so will result in further disciplinary action and/or possible dismissal from the department. It is our hope that the severity of this incident, and the resulting discipline, will serve to amend your behavior so as to enable you to continue to be able to contribute to the department.” This admonition and notice of possible dismissal if plaintiff did not amend his behavior was clearly not arbitrary or unreasonable in view of the administrative agency’s findings.

We next address the administrative agency’s findings of February 5, 1985, that the contents of a memorandum from plaintiff to Assistant Chief Seivwright, dated January 5, 1985, were antagonistic toward plaintiff’s superior officers and interfered with the proper cooperation of the Department’s employees, and that plaintiff’s action was contrary to the disciplinary proceeding on August 17, 1984, when he was requested to refrain from activities in which he was antagonistic toward his superior officers. We conclude that it is clear from the admitted facts which we have previously set forth that the administrative agency’s findings of February 5, 1985, were more than fairly supported by the record and are not contrary to the manifest weight of the evidence.

We also conclude that based upon the entire record, it was within the realm of reasonable disciplinary action for the administrative agency to terminate plaintiff’s employment, especially in view of the fact that he had previously been admonished and put on notice that his failure to amend his behavior would possibly result in dismissal. We therefore hold that a judicial review of this case in accordance with the law applicable to the judicial review of administrative agency decisions establishes that the administrative decisions in this case should be upheld. However, since the trial court dismissed the case on the basis that plaintiff failed to allege a cause of action, we believe that it is proper for us to examine the record, including the exhibits that are part of plaintiff’s pleadings, to decide whether plaintiff’s third amended complaint (Third Complaint) and proposed fourth amended complaint for damages and injunctive relief (Fourth Complaint) are sufficient to allege a separate cause of action for damages. See Nowicki v. Evanston Fair Housing Review Board, 62 Ill. 2d at 15, 338 N.E.2d at 188.

Plaintiff has made multifarious allegations and charges in his eight-count Third Complaint and two-count Fourth Complaint wherein he seeks compensatory damages, punitive damages, costs and attorney fees, as well as other relief to which he might be entitled. However, we agree with the statement in plaintiff’s Fourth Compliant that the “gist of John Norton’s claim against the Village” is whether the Village deprived him “of his constitutional rights to free speech and due process.” Correlated to his due process claim is plaintiff’s claim that he was dismissed without a hearing. Plaintiff’s claims against the other defendants are likewise founded on whether the Village deprived him of his constitutional rights to free speech and due process and whether he was dismissed without a hearing.

We shall first consider whether the allegations in the Third Complaint and the Fourth Complaint are sufficient to allege a 'cause of action founded upon an infringement of plaintiff’s right to free speech as protected by the first amendment. It is settled law that public employment cannot be conditioned upon a basis that infringes the employee’s constitutionally protected freedom of speech. However, as a matter of good judgment, the first amendment does not require a municipality to be run as a roundtable for employee complaints over internal office affairs. (Connick v. Myers (1982), 461 U.S. 138, 149, 75 L. Ed. 2d 708, 721, 103 S. Ct. 1684, 1691.) To this end, the municipality, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to dismiss employees whose conduct hinders efficient operation of the municipality or its departments, and to do so with reasonable dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the workplace, foster disharmony and untimely impair the efficiency of operations of the municipality. (Arnett v. Kennedy (1974), 416 U.S. 134, 168, 40 L. Ed. 2d 15, 41, 94 S. Ct. 1633, 1651 (Powell, J., separate opinion).) Thus, our task is to seek a balance between the freedom of the employee, as a citizen, in commenting upon matters which conceivably could be of public concern and the interest of the municipality, as an employer, in promoting the efficiency of the public services it performs through its employees. Pickering v. Board of Education (1968), 391 U.S. 563, 568, 20 L. Ed. 2d 811, 817, 88 S. Ct. 1731, 1734-35.

It is clear from the admitted facts in this case that plaintiff’s conduct undermined the municipality’s operation of the Department. In this regard, the manner, time and place in which plaintiff’s communications were distributed become relevant. When a municipal employee affronts his superior by the manner, time and place of a communication, the municipality’s institutional efficiency may be threatened not only by the content of the employee’s message but also by these added factors which are present in the instant case.

The context in which the dispute between plaintiff and the municipality arose is also significant in determining whether plaintiff’s conduct undermined the municipality’s operation of the Department. The record shows that there was a history of vocalized criticisms made by plaintiff to the fire chief, Benak. These criticisms went on for at least two years, and plaintiff himself states that “raised voices and harsh words were generated by both of us and witnessed by others” during that time. Moreover, plaintiff’s criticisms relate to changes in policies which affected him personally or which he was involved in formulating. When employee speech relating to policy changes stems from an employment dispute concerning the very application of the policy changes to the speaker or to his past involvement in the creation of the policy that is to be changed, additional weight must be given to the position that the employee has threatened the necessary authority of the municipality to run its operations as it deems best. (See Connick v. Myers, 461 U.S. at 153, 75 L. Ed. at 724, 103 S. Ct. at 1693.) Thus, the admitted facts in this case as well as the circumstances surrounding those facts leave room for no other conclusion than that plaintiff’s conduct undermined the municipality’s operation of the Department.

In addition, if indeed plaintiff’s communications touched upon matters of public concern, it is plain that based upon plaintiff’s exhibits and the facts alleged by him in his complaints, they did so in only a limited sense. We believe that the communications may more accurately be characterized as merely employee grievances concerning internal operations. Thus, the limited first amendment interest that may be involved here does not require that the municipality tolerate action which it reasonably believed would disrupt its operations, undermine the authority of its fire chief and destroy working relationships within the Department. We therefore conclude that based upon plaintiff’s exhibits and the pertinent factual allegations he has made, the Third Complaint and the Fourth Complaint are not sufficient to allege a cause of action founded upon a violation of the first amendment. See Connick v. Myers, 461 U.S. at 154, 75 L. Ed. 2d at 724, 103 S. Ct. at 1694.

Plaintiff’s attempt to allege a cause of action based upon a due process violation and a claim that he was dismissed without a hearing are equally without any legal basis. Plainly, the admitted facts do not support plaintiff’s contentions.

On July 23, 1984, plaintiff had an administrative hearing to review whether he should be terminated because of his criticism of the fire chief and policies within the Department. Plaintiff and his representative submitted both oral presentations and written documents. Also, plaintiff was given added time to submit additional documents which were submitted later. As a result of the administrative hearing, on August 16, 1984, plaintiff was suspended from work for 30 days and admonished and given notice that he was subject to dismissal for similar behavior in the future. On January 5, 1985, plaintiff again circulated a memorandum that was critical of his superiors and policies within the Department. The memorandum included a statement that plaintiff felt he was “suckered” into “an insincere ploy” as a result of the actions of a committee, which included the fire chief and the assistant fire chief, and that as a result of the actions of the committee plaintiff “became a party to deceitful communication.” On February 5, 1985, in accordance with the August 16, 1984, admonition and notice that plaintiff was subject to dismissal for future behavior similar to that for which he had been suspended, the Village dismissed the plaintiff.

In our opinion, since plaintiff admits the authenticity and circulation of the January 5, 1985, memorandum, the document speaks for itself as establishing conduct by plaintiff in violation of the administrative decision of August 16, 1984, and for which he had been forewarned that he would be dismissed. Thus, it is clear that plaintiff was not entitled to another administrative hearing. Plaintiff’s contentions that he was denied due process and that he was dismissed without a hearing are therefore baseless. Moreover, there being no presumption that the facts or the evidence would appear otherwise or different at another hearing, even if plaintiff’s contentions had some possible foundation no useful purpose would be served by remanding the case on this point. See Onesto v. Police Board (1980), 92 Ill. App. 3d 183, 187, 416 N.E.2d 13, 17.

Accordingly, the order of the trial court dismissing the third amended complaint and denying plaintiff leave to file his fourth amended complaint is affirmed.

Affirmed.

FREEMAN, P.J., and WHITE, J., concur.