author: JUSTICE McMORROW

text:
    HALLMARK AND JOHNSON PROPERTIES, LTD., Plaintiff-Appellant, v. ANTONIO A. GADEA, Defendant-Appellee.
    First District (4th Division)
    No. 1-90-1293
    Opinion filed August 29, 1991.

      Barry E. Morgen and Sheldon G. Perl, both of Chicago, for appellant.
    Vincent A. Lavieri, of Kovitz, Shifrin & Waitzman, of Arlington Heights, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff, Hallmark & Johnson Properties, Ltd., brought an action against defendant, Antonio A. Gadea, for payment of a $40,000 real estate broker’s commission. On appeal, plaintiff contends that the trial court erred in granting summary judgment for defendant.

On March 30, 1988, plaintiff, a real estate broker, and defendant entered into a cooperative listing agreement for the sale of a 44-unit apartment building owned by defendant. The agreement as subsequently amended provided that $875,000 would be the sales price of the building and that plaintiff would be paid a commission of $40,000. Defendant also agreed

“[t]o accept a Purchase Money Note and Trust Deed, or execute Installment Agreement for Warranty Deed, or accept a Junior Purchase Money Note and Trust Deed in the amount of $100,000-$150,000 ***.”

Defendant further agreed to pay the $40,000 broker’s commission

“in the event Broker produces a Purchaser ready, willing and able to purchase the premises on the terms herein provided *** at the time of execution and delivery of deed or installment agreement for deed, whichever occurs sooner, and Broker is authorized to deduct the commission and expenses from the earnest money deposit at such time.”

On or about August 31, 1988, defendant signed a real estate sales contract to sell the property to Lyle T. and Debra L. Berkson and their daughter, Frances Rotman (the Berksons), for $865,000, with an initial payment of $30,000 in earnest money, to be increased to 10% of the purchase price within 15 days of acceptance of the contract. Defendant subsequently agreed to accept the $30,000 as the total amount of earnest money. The earnest money was to be held in escrow by plaintiff.

Paragraph 3 of the contract, entitled “Mortgage Contingency,” provided:

“This contract is contingent upon Purchaser securing within 60 days of acceptance hereof a commitment for a fixed rate mortgage, or an adjustable mortgage *** for $648,750.00, the interest rate *** not to exceed 10.88% per annum, amortized over 25 years, payable monthly, ***. If Purchaser does not obtain such commitment, Purchaser shall notify seller in writing within said number of days. If Seller is not so notified, it shall be conclusively presumed that Purchaser has secured such commitment or will purchase said property without mortgage financing. If Seller is so notified, Seller or broker may, within an equal number of additional days, secure a mortgage commitment for Purchaser upon the same terms, and said commitment may be given by Seller as well as a third party. Purchaser shall furnish all requested credit information and sign customary papers relating to the application and securing of such commitment. If Purchaser notifies Seller as above provided, and neither Purchaser, Seller nor Broker secures such commitment as above provided, this contract shall be null and void and all earnest money shall be returned to Purchaser and Seller shall not be liable for any sales commission.”

Because defendant did not have legal counsel when he signed the real estate contract, plaintiff’s agent, Richard Dawidiuk, recommended to defendant that he employ attorney L. Sanford Blustin to represent him. According to Blustin’s deposition, defendant told Blus-tin that defendant wanted the fullest possible protection of the second mortgage he agreed to hold. Blustin therefore prepared a rider to the contract which stated in paragraphs 1 and 2 that defendant would hold a second mortgage of $151,250 at 9.5%, and that the actual down payment would be $65,000. Paragraph 3 of the rider provided:

“It is agreed by the parties hereto, that this property which is presently in a land trust with the Ravenswood Bank, will be transferred to the buyers, at the closing of this deal; however, at the same time and simultaneously, the buyers will issue an assignment of their beneficial interest to the seller as security for the said aforementioned second mortgage.”

The rider was signed by the parties on August 31, 1988. Between September 6 and September 27, Blustin and the Berksons’ attorney, George Skuros, exchanged correspondence regarding the contract and various modifications to it, none of which related to the issue of financing.

On October 19, Donald Hannon, a mortgage broker hired by the Berksons, sent the Berksons a letter and a loan commitment from Citicorp Savings of Illinois for $650,000. The commitment stated that the Berksons’ loan application had been approved “subject to the terms and conditions herein.” Among those terms and conditions was a paragraph which stated:

“No secondary financing and no transfer of title or of the beneficial interest in Land Trust will be allowed. Any violation will be a default under the loan.”

The commitment also provided that the borrowers, the Berksons, assign their beneficial interest in the property to Citicorp. Finally, the commitment stated:

“Lender may terminate this commitment if, except as may be otherwise provided herein, (a) the facts presented to Lender relating to the loan have been or are misrepresented to the Borrower.”

In his letter accompanying the loan commitment, Hannon advised the Berksons that “[w]hile the commitment requests an Assignment of the Beneficial Interest, the bank will not take it as collateral. A letter from you stating that you accept this commitment ‘subject to the bank not taking an Assignment of the Beneficial Interest’ will be accepted by the bank.” Copies of the loan commitment and Hannon’s letter were telefaxed to plaintiff on October 19, 1988. Sometime later, Hannon verbally assured Blustin that he would see to it that Citicorp did not ask for the assignment of the beneficial interest.

In early November, Blustin spoke to Hannon and Skuros regarding the provision in the Citicorp loan commitment prohibiting a second mortgage. Blustin was concerned that Citicorp would refuse to make the loan, or would later “call it in” if it learned of the second mortgage defendant agreed to hold. Blustin advised Hannon that defendant wanted his mortgage to be recorded simultaneously with the Citicorp mortgage. Hannon told Blustin that the usual procedure was to record the second mortgage two or three weeks later; and Skuros informed Blustin that the Berksons did not want Citicorp to learn of the second mortgage because it was prohibited under the terms of the loan commitment. Defendant’s accountant opined that defendant’s interests would not be adequately protected if there was a two- or three-week delay in recording the second mortgage. On November 16, 1988, Blustin advised Dawidiuk and Skuros by telephone that defendant insisted that Citicorp be made aware that there would be a second mortgage on the property and that the first and second mortgages be recorded simultaneously. On November 17, Blustin sent a letter to Skuros restating defendant’s position with respect to informing Citicorp of his mortgage and the simultaneous recording of both mortgages.

On November 29, Skuros sent a letter to defendant regarding defendant’s “additional demands.” Skuros proposed that the second mortgage temporarily be placed on the Berksons’ personal residence, and that 10 business days after the closing, the mortgage be transferred to the subject property. According to Skuros:

“This will allow you full protection under the contract and will bypass the need to notify the lender of our additional mortgage. This protection will be in addition to the assignment of the beneficial interest over to you.”

Skuros contended that this was “an adequate solution to eliminate any fears you may have,” and stated that defendant’s failure to cooperate with the proposal would result in Skuros declaring a breach of the contract. A copy of Skuros’ letter was sent to Laura Knapp, another of plaintiff’s agents.

On December 6, 1988, Blustin met with defendant, Hannon, Skuros, Dawidiuk and Knapp to discuss defendant’s concerns regarding the transaction. Hannon stated that he did not believe that Citi-corp would learn of the second mortgage, but if it found out and raised any objection he, Hannon, guaranteed that he would secure a first mortgage elsewhere. Blustin advised defendant that the assignment of the beneficial interest to him would adequately safeguard his rights and recommended he agree to the Berksons’ proposals. Defendant responded that he wanted to think about the matter for a few days.

On December 14, 1988, Blustin sent a letter to Skuros in which he restated that defendant was willing to consummate the transaction and to hold a second mortgage as long as that mortgage was recorded immediately after closing. Blustin also advised Skuros that if the Berksons did not agree to proceed with the closing by December 19, defendant would declare that they were in default of the contract and that it was null and void. Skuros responded that because of defendant’s failure to abide by the terms of the contract, the Berksons had authorized him to file suit for breach of contract and specific performance unless the sale was completed by December 18. The parties were unable to reach agreement on the issues relating to the second mortgage. On December 21, 1988, defendant and the Berksons executed an agreement in which they declared the contract null and void, waived all rights to enforcement of it and agreed to the return of the $30,000 earnest money being held in escrow by plaintiff.

Opinion

The general rule governing a broker’s right to receive a commission is well settled. If a broker who is employed to sell property by the owner produces a purchaser, within the time limit of his authority, who is ready, willing and able to purchase the property on the terms prescribed by the seller, he is entitled to a commission even if the seller refuses to perform the contract. In such case, however, the broker must prove that the purchaser he produced was ready, willing and able to purchase the property on the terms proposed. Fox v. Ryan (1909), 240 Ill. 391, 88 N.E. 974; Solomon v. Baron (1984), 123 Ill. App. 3d 255, 462 N.E.2d 756; Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 418 N.E.2d 444.

A prospective purchaser is deemed ready, willing and able to purchase if he has agreed to buy the property and has sufficient funds on hand or is able to obtain the necessary funds within the time set by the contract. (Nelson v. Bolton (1979), 72 Ill. App. 3d 519, 391 N.E.2d 182.) If a transaction is dependent upon the obtaining of a loan or other contingency, a broker’s entitlement to his commission is dependent upon the stipulated contingency; and if the broker acquiesces in such an arrangement and the parties are unable to perform the condition after reasonable and bona fide efforts to do so, the broker is not entitled to a commission. Gordon v. Bauer (1988), 177 Ill. App. 3d 1073, 532 N.E.2d 855; Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 418 N.E.2d 444.

Plaintiff does not dispute these well-settled principles. Plaintiff asserts, however, that it is also the rule in Illinois that where a seller accepts a purchaser procured by the broker within the term of the brokerage agreement, and enters into an enforceable contract with the purchaser, the purchaser’s readiness, willingness and ability to purchase are no longer open to question and the broker’s right to compensation accrues irrespective of whether the sale is completed. United Investors, Inc. v. Tsotsos (1985), 132 Ill. App. 3d 175, 477 N.E.2d 40; Cabry v. Ionidas (1970), 122 Ill. App. 2d 167, 258 N.E.2d 45.

Plaintiff contends that in this case the contingencies in the contract were either met by the Berksons or they were waived by defendant, and that the contract was therefore enforceable. Specifically, plaintiff maintains that “it is undisputed” that the Berksons did not notify defendant of their inability to obtain a loan commitment within the 60 days required by the contract; and that because defendant did not declare the contract void at that time, it became an enforceable contract which entitled plaintiff to its commission. Plaintiff argues that merely because defendant agreed to cancel the contract instead of attempting to compel the purchasers to perform it does not deprive plaintiff of its commission. We disagree.

It was known to all parties involved in this transaction prior to the execution of the real estate contract that the Berksons could not purchase the property without financing approximately $800,000, and that they could not obtain a primary mortgage that large. For that reason, defendant agreed to hold a mortgage of approximately $150,000. The Berksons agreed to secure primary financing in the amount of $648,750 and to issue to defendant at closing an assignment of their beneficial interest in the property as security for the second mortgage.

On October 18, 1988, Citicorp issued a loan commitment for the needed amount. However, the commitment was subject to the restrictions that there was to be no secondary financing and no transfer of the beneficial interest in the land trust in which the property was held. The commitment further provided that the Berksons were required to assign the beneficial interest in the land trust to Citicorp.

Except for the amount of the loan, it was clear on its face that the commitment did not otherwise conform to the financing terms set forth in the contract. The commitment expressly prohibited the terms upon which the purchase of the property was conditioned, i.e., the holding of a junior mortgage secured by the assignment of the beneficial interest in the land trust. Without secondary financing, the Berk-sons were financially unable to purchase the property; but by contracting for secondary financing, they were not eligible, under the terms of the Citicorp commitment, for the primary mortgage necessary for the purchase.

Indeed, as the trial court observed, the commitment not only was noncompliant with the real estate contract but was actually adverse to defendant’s rights and interests thereunder. Notwithstanding any differing representations by the mortgage broker, Hannon, the Citicorp commitment required the Berksons to assign their beneficial interest in the land trust to Citicorp. Such an assignment to Citicorp would have eliminated the security for the second mortgage held by defendant. The commitment also expressly recited that any violation of the restrictions regarding secondary financing and assignment of the beneficial interest in the property would be a default on the loan agreement, which would allow Citicorp to cancel the commitment if it became aware of the default prior to closing or demand full repayment of the primary mortgage after closing. Either situation would be adverse to defendant’s interests as the seller and second mortgage holder.

The commitment was also subject to termination if the facts presented to Citicorp relating to the loan were misrepresented. Not only does the issuance of the loan commitment itself indicate that the Berksons misrepresented facts regarding the second mortgage and agreement to assign the beneficial interest in the land trust to defendant, but the November 29 letter from the Berksons’ attorney to defendant proposing modifications to the contract concerning the second mortgage expressly stated that the modifications would “bypass the need to notify the lender of our additional mortgage.”

Plaintiff, who was then defendant’s agent, received a copy of the loan commitment on October 19, 1988, and delivered a copy of it to defendant’s attorney within a few days thereafter. The terms of the commitment itself served as notice to all parties involved in this transaction that the purchasers, who did not have sufficient funds of their own, also did not have the ability to legitimately obtain the financing necessary to complete the transaction. Consequently, they were not ready, willing and able purchasers.

Waiver of the ready, willing and able conditions will be found only where there is affirmative evidence in the record that the seller personally investigated the financial ability of the prospective buyer and, after due investigation, satisfied himself of that ability. (Telander v. Posejpal (1981), 94 Ill. App. 3d 616, 418 N.E.2d 444; Nelson v. Bolton (1979), 72 Ill. App. 3d 519, 391 N.E.2d 182.) There is no affirmative evidence in the record that defendant personally investigated the Berksons’ financial ability to purchase and satisfied himself of that ability, without which there would be no waiver of the conditions of readiness, willingness and ability to purchase.

To the contrary, all parties to this transaction were aware of the Berksons’ financial inability to purchase the property without secondary financing. Defendant was therefore adamant from the date the contract was signed that the second mortgage he agreed to hold be fully protected. Although the contract did not specifically state when the second mortgage was to be recorded, it did require the Berksons to issue an assignment of their beneficial interest in the property at closing. In light of defendant’s express insistence on protection of his mortgage, the only reasonable interpretation of this language is that his mortgage and the assignment of the beneficial interest which secured it were to be recorded together with the primary mortgage in the process of the closing. The dispute regarding this matter arose only after issuance of the loan commitment prohibiting secondary financing and the proposal by the Berksons that recording of the second mortgage be delayed two or three weeks. Defendant, however, never deviated from his original position that his mortgage be fully protected by recordation of it immediately after closing.

In summary, consummation of the transaction in this case was expressly contingent upon the purchasers securing financing which conformed to the terms of the contract. The prospective purchasers produced by plaintiff were never able to purchase the property on the terms contained in the contract, and there is no evidence that defendant waived that condition by personally investigating and satisfying himself of their ability to do so. The facts that defendant did not declare the contract void immediately upon expiration of 60 days and that negotiations continued for a brief time thereafter do not entitle plaintiff to its commission.

For the reasons stated, the order of the trial court granting summary judgment for defendant is affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODERICK ALLEN, Defendant-Appellant.
    First District (5th Division)
    No. 1-89-2416
    Opinion filed August 30, 1991.

      Michael J. Pelletier and Mitchell B. Katten, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gail O’Brien, and Eileen M. O’Neill, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant Roderick Allen (Allen) was charged with attempted murder, armed violence and aggravated battery for the stabbing of his father. (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9 — 1, 12 — 4(a), 33A — 2.) Although the trial court ordered, on numerous occasions, that Allen submit to psychiatric testing prior to trial, he repeatedly asserted his right to refuse such examination and the case proceeded to trial before a jury without the benefit of such testing.

At trial Allen presented the defense of self-defense and testified on his own behalf. The jury, however, found him guilty of armed violence and aggravated battery, although they could not reach a verdict on the attempted murder charge.

After trial the court ordered, at the request of counsel, that Allen be examined to determine his fitness for sentencing. Again, Allen refused to submit to an examination. However, a fitness hearing was held, at which time a psychiatrist testified, based upon letters Allen had written and information gleaned from Allen’s family, that Allen was a paranoid schizophrenic and unfit for sentencing, but that he could be restored to fitness within a year. Based upon this testimony the court postponed sentencing.

After approximately four months, Allen was found to have been restored to fitness and was then sentenced to seven years’ imprisonment in the Department of Corrections based on the armed violence conviction. He now appeals his conviction and sentence, asserting the following errors: (1) that he was denied his constitutional right to due process of law because the trial court did not determine his fitness to stand trial although circumstances indicated that there was a bona fide doubt as to his fitness; (2) that he was denied a fair trial based upon improper arguments made by the prosecutor; and (3) that his sentence was unconstitutionally disproportionate to the offense charged in light of the fact that the jury could not reach a verdict on the attempted murder charge.

With respect to defendant’s first issue, there is no question that a defendant is denied due process of law if he is required to stand trial at a time when he is incompetent to do so. (People v. Brown (1985), 131 Ill. App. 3d 859, 476 N.E.2d 469.) However, a defendant is not incompetent to stand trial merely because he possesses some mental or physical defect, but only if such defect prevents him from understanding the nature and purpose of the proceedings against him or prevents him from assisting in his own defense. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 10; People v. Branson (1985), 131 Ill. App. 3d 280, 475 N.E.2d 905.) A defendant is presumed to be fit (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 10), and the trial court is not obligated to conduct a hearing to determine a defendant’s fitness to proceed unless a bona fide doubt as to his fitness is raised. (Ill. Rev. Stat. 1987, ch. 38, par. 104 — 11.) Furthermore, whether a bona fide doubt as to a defendant’s fitness is raised is a decision which rests in the sound discretion of the trial court and will not be overturned unless it appears that the trial court abused its discretion. People v. Brown (1985), 131 Ill. App. 3d 859, 476 N.E.2d 469.

In the present case it does not appear that the trial court abused its discretion by failing to hold a fitness hearing prior to trial. Although the trial court ordered, upon defense counsel’s request, that defendant undergo behavioral examination, defendant refused to participate and defense counsel never requested a fitness hearing prior to trial. The fact that defense counsel asked that defendant be examined did not, in itself, bring the issue of defendant’s competency into question such that the trial court should have ordered a fitness hearing sua sponte. This is because a defendant may be competent to participate at trial even though his mind is otherwise unsound. (People v. Eddmonds (1991), 143 Ill. 2d 501; People v. Owens (1990), 139 Ill. 2d 351, 362, 564 N.E.2d 1184.) Moreover, even if a defendant is known to suffer from mental disturbance, a bona fide doubt as to that defendant’s competency is not created, since fitness only speaks to a person’s ability to function in the context of trial, not to his competence in other areas. People v. Eddmonds (1991), 143 Ill. 2d 501; People v. Jones (1982), 109 Ill. App. 3d 120, 440 N.E.2d 261.

Thus, the relevant issue in this case is whether the record reflects that the trial court’s observations of the defendant and the information made known to it support a finding that defendant was able to understand the nature and meaning of the proceedings and that he could assist in his defense. We believe that it does.

The record contains the transcripts of numerous hearings held between July 21, 1987, and the date of trial, October 3, 1988. It is evident from these transcripts that defendant’s behavior throughout this period was relevant and appropriate and that he remained oriented as to time, place and events. Our review of the record reveals nothing which might have caused the trial court to become concerned that defendant was not fit for trial. In fact, defendant is a college graduate with a degree in civil engineering, who remained employed throughout the extended pretrial period. Furthermore, his questions and comments to the court on various occasions indicated that he not only understood the proceedings, but that he could affirmatively assert his rights, often doing so to request certain counsel, to request a continuance or to refuse to participate in psychological testing.

We realize that there are several references in the record to defendant’s refusal to cooperate with his counsel. Specifically, defendant apparently disagreed with his attorney and refused to accept counsel’s advice as to the best course of action to take in the defense of the charges. However, we believe that the defendant’s refusal to cooperate with counsel in this manner is distinguishable from a defendant’s inability to cooperate with his own defense and does not require a finding that defendant was unfit for trial. See People v. Joseph (1988), 176 Ill. App. 3d 636, 640, 531 N.E.2d 432; People v. Pittman (1979), 75 Ill. App. 3d 683, 686, 394 N.E.2d 702.

Lastly, the trial itself supports the finding that the trial court was not obligated to conduct a fitness hearing. Defendant testified at his trial in a rational and reasonable manner, assisting his attorney in presenting the defense of self-defense.

We also find that the claimed error of unfair comments by the prosecution is without merit. Defendant did not object to any of the comments at trial, and it does not appear, due to the overwhelming evidence against defendant presented in this case, that the comments, whether improper or not, had any prejudicial effect. (See People v. Hayes (1990), 139 Ill. 2d 89, 134, 564 N.E.2d 803.) In any event, we do not find the comments improper since we find that the complained-of comments were reasonable arguments based on the evidence or inferences drawn therefrom. (People v. Amos (1990), 204 Ill. App. 3d 75, 85, 561 N.E.2d 1107.) Thus, defendant was not denied a fair trial. We do find, however, that defendant was improperly sentenced and that the case must be remanded for resentencing.

Defendant was charged with attempted murder, aggravated battery and armed violence, predicated upon the aggravated battery. He was found guilty only of aggravated battery and armed violence. Consequently, defendant contends that he was found not guilty of the Class X offense of attempted murder but was still sentenced as a Class X offender because his Class 3 aggravated battery conviction was enhanced by the fact that he was convicted of the Class X armed violence offense predicated upon the aggravated battery. In this manner, he argues he was denied his constitutional guarantee of proportionate penalties and due process. We agree.

As a general proposition, where a single physical act forms the basis for more than one offense, a defendant may be prosecuted for all such offenses, but may have only one conviction and sentence imposed. (People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802.) Furthermore, where a defendant is charged with committing a felony, such as aggravated battery, and also charged with armed violence predicated upon the commission of that same felony, the underlying felony is a necessarily included offense of the armed violence charge, and the convictions for both the armed violence and the underlying felony may not stand where a single act is the predicate for both charges. (People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.) In such instances it has been held proper to vacate the less serious conviction and enter judgment and impose sentence only on the more serious offense of armed violence. See Donaldson, 91 Ill. 2d at 170.

In the present case defendant was found guilty of aggravated battery and armed violence predicated upon the aggravated battery. In accordance with the holding in Donaldson, he was sentenced only on the armed violence conviction. However, despite the fact that aggravated battery causing great bodily harm has been found to be a proper predicate felony for armed violence (People v. Drakeford (1990), 139 Ill. 2d 206, 210, 564 N.E.2d 792), we question whether it was proper to have sentenced defendant based upon the armed violence conviction rather than the aggravated battery conviction under the facts of this case.

In Drakeford it was noted that the armed violence statute has been the subject of much judicial interpretation. The purpose of the armed violence statute is to deter or discourage those who contemplate a felonious act from carrying a weapon during the course of the felony. Because of this express purpose, courts have held that the armed violence statute may not be applied in instances where the underlying felony does not entail a premeditated act. (See People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48; People v. Fernetti (1984), 104 Ill. 2d 19, 470 N.E.2d 501.) The court in Drakeford also seems to expand this notion and indicates that it may sometimes be necessary to go beyond literal definitions to determine whether the armed violence statute is being improperly utilized to enhance less culpable conduct.

In People v. Clay (1987), 165 Ill. App. 3d 68, 518 N.E.2d 659, the court recognized that aggravated battery may encompass unpremeditated acts. The court in Clay noted that although aggravated battery, like voluntary manslaughter, is committed knowingly or intentionally, the aggravated battery statute does not consider whether mitigating factors, such as the lack of premeditation or an unreasonable belief in the need for deadly force, are present. Based upon Drakeford, we believe that these mitigating factors, though missing from the statute, may be considered before applying the armed violence statute.

In the present case, defendant was charged with the offense of attempted murder and he presented the defense of self-defense. Apparently the jury did not believe that defendant acted with an intent to kill and that, while defendant committed a battery while possessing the intent or knowledge that his actions would result in great bodily harm, some mitigating factors were present. The facts of this case indicate that defendant did not act with premeditation, and defendant presented testimony that he may have acted after some provocation. We believe that under these circumstances defendant’s conviction for the Class 3 felony of aggravated battery should not be enhanced to a Class X felony by the armed violence statute.

For this reason we remand for resentencing and direct the trial court to vacate the conviction for armed violence and sentence defendant based upon the aggravated battery conviction.

This court has found that in cases of this nature, where a sentence is seven years or less, the defendant has been released by the time the appeal has become final. To avoid this unfair result and believing that justice demands a correction of a sentencing error, we affirm the aggravated battery conviction and remand for resentencing without oral argument.

Affirmed in part and remanded for resentencing.

GORDON and McNULTY, JJ., concur.


author: JUSTICE McNULTY

text:
    HARBOR INSURANCE COMPANY, Plaintiff and Counterdefendant-Appellee, v. TISHMAN CONSTRUCTION COMPANY et al., Defendants and Counterplaintiffs-Appellants (La Salle National Bank, as Trustee, et al., Defendants).
    First District (5th Division)
    Nos. 1-89-0557, 1-89-0586, 1-89-0627, 1-89-0628, 1-89-0654, 1-89-0696, 1-89-0786 cons.
    Opinion filed August 30, 1991.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Charles B. Brown, Michael A. Pollard, and Kathleen F. MacLennan, of counsel), for appellant Tishman Construction Corporation of Illinois.
    Katten, Muchin & Zavis, of Chicago (Francis X. Grossi, Jr., Alexander R. Rothrock, Daniel A. Kaufman, and Timothy J. Moore, of counsel), for appellants Tishman Construction Company, Tishman Liquidating Corporation, and Teeco Properties, L.P.
    Carmen V. Speranza, Donald J. Yeverka, and C. Kent Frederick, all of Chicago, for appellant Crouch-Walker Corporation.

      William J. Furey and Michael G. Thomas, both of Cassiday, Schade & Gloor, of Chicago, for appellant Economy Mechanical Industries, Inc.
    Robert A. Carson and Barry S. Hyman, both of Gould & Ratner, of Chicago, for appellant Material Service Corporation.
    Steven J. Harper and Susan P. Jordan, both of Kirkland and Ellis, of Chicago, for appellant Skidmore, Owings & Merrill.
    Thomas W. Conklin, Linda E. Unger, and Renee S. Levitt, all of Conklin & Roadhouse, of Chicago, for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

This case involves an appeal of a grant of summary judgment to Harbor Insurance Company, awarded in a declaratory judgment action to determine Harbor’s liability to defend and indemnify various named insureds under a policy relating to the construction of the Apparel Center and Parking Garage. Harbor Insurance Company (Harbor) filed a declaratory judgment action in the circuit court of Cook County seeking a ruling that it had no obligation to defend or indemnify any of the parties insured under two Harbor policies (Nos. GLA 006405 and GLA 006249), who were named as defendants in an action for damages and defects to property resulting from construction of the Apparel Center and Parking Garage. La Salle National Bank v. Skidmore, Owings & Merrill, No. 86 L 19173 consolidated with No. 86 L 19633 (hereinafter referred to as the underlying action).

One of the original defendants, Tishman Construction Company, Tishman Liquidating Corporation, Teeco Properties, L.P. and Tishman Construction Corporation of Illinois (Tishman) (as previously noted, the Tishman entities are no longer involved in this litigation), filed a counterclaim and moved for partial summary judgment on the issue of insurance coverage for the underlying action. Defendant Economy Mechanical Industries, Inc. (Economy Mechanical) (a remaining party in the case at bar), also moved for summary judgment on similar grounds. The trial court denied both of these motions on August 9, 1988, and on February 3, 1989, entered summary judgment in Harbor’s favor as to all parties, ruling that Harbor had no duty to provide a defense for or indemnity to any of the defendants claiming to be insureds under the aforementioned policies. All of the named defendants appealed.

The principal issue presented for review is whether the trial court improperly granted Harbor’s motion for summary judgment, holding as a matter of law that Harbor had no duty either to defend or to indemnify any of the named insureds.

Harbor issued its general liability policy to Wolf Point Projects and La Salle National Bank, as trustee under trust No. 36223, the owner of the Apparel Center and Parking Garage. The policy provided comprehensive general liability and contractual liability insurance coverage, including completed operations coverage, with effective dates of March 18, 1974, to March 18, 1978 (policy GLA 006405). The named insureds on the policy were all contractors and subcontractors working on the Apparel Center Project. The Harbor policy provided liability coverage subject to various exclusions and endorsements, one of which, the “Broad Form Property Damage (BFPD) Endorsement,” contains two critical exclusions which are at issue in the current litigation and will be discussed below.

On August 26, 1986, La Salle National Bank (La Salle) filed an action in the circuit court of Cook County against the various parties who performed construction work on the Apparel Center and Parking Garage. La Salle alleged that it suffered damages as a result of various design and construction defects that allegedly occurred during the course of the construction, and named the construction manager (Tishman), the architect/engineer (Skidmore, Owings) and various subcontractors (James McHugh Construction Co., Crouch-Walker Corporation, Material Service Corporation, Economy Mechanical Industries, and Flood Testing Laboratories) in its suit for damages.

La Salle alleged that the contractors and subcontractors had breached their contractual duties and were liable for alleged design and construction defects, as well as faulty workmanship in the construction of the Apparel Mart and Parking Garage. Among the defects alleged by La Salle are mislocation of a structural beam and its bearing pad, structural failure of the northwest corner of the parking garage, severe cracking and distress in the masonry wall and brick facade, inadequate expansion joints and bearings in the brick facade, defective roof flashings, defective installation and securing of insulation and firesafing, delamination and spalling of the topping slab throughout the parking garage, and inadequate and improper design and construction of the parking garage surface. These defects are alleged to have been caused by the faulty workmanship of the contractors and subcontractors performing work on the project. In its lawsuit, La Salle sought to recover sums allegedly spent in repair and restoration work to put the property in the condition it would have been in had the defendants fully performed in accordance with their contracts.

The various named contractors and subcontractors tendered the defense of the La Salle lawsuit to Harbor, which reserved its rights under the terms, conditions, and exclusions of the Harbor policies. On May 12, 1987, Harbor filed a declaratory judgment action in the circuit court of Cook County seeking a ruling that it was not obligated to defend or indemnify those entities claiming to be insureds under the two Harbor comprehensive general liability policies. As a basis for denying coverage, Harbor relied primarily on two exclusions contained in the BFPD Endorsement. These exclusions provide, in pertinent part:

“This insurance does not apply:
(y) to property damage *** (2) *** to *** (d) that particular part of any property, not on premises owned by or rented to the insured ***. ***
(iii) the restoration, repair or replacement of which has been made or is necessary by reasons of faulty workmanship thereon by or on behalf of the insured [hereinafter referred to as the Faulty Workmanship Exclusion];
(z) *** to property damage to work performed by the named insured arising out of the work or any portion thereof, or out of the materials, parts or equipment furnished in connection herewith.” (Hereinafter referred to as the Work by the Insured Exclusion.)

The trial court granted Harbor’s motion for summary judgment in the declaratory judgment action, finding that based on the above exclusions, Harbor indeed had no duty to defend or indemnify any of the named defendants in the La Salle action. All of the named defendants appealed.

The Illinois Code of Civil Procedure provides that summary judgment may be granted when there are no genuine issues of material fact. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005.) Thus, in the case at hand, the trial court’s grant of summary judgment would only be proper if there were no genuine issues of material fact as to Harbor’s duty either to defend or indemnify all of the named defendants.

Harbor contends that based on the policy at issue, it is clearly not obligated to either defend or indemnify any of the named insureds. Harbor relies on our supreme court’s decision in Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872, and the two exclusionary clauses (the Faulty Workmanship Exclusion and the Work by the Insured Exclusion) to support this argument. Defendant insureds maintain both that Brochu is inapplicable, as it does not interpret identical exclusionary clauses, and also that based on the La Salle complaint and the exclusionary clauses at issue, there is potential for coverage of the claims made against them, and at the very least, that the clauses at issue are ambiguous.

The trial judge agreed with Harbor’s reliance on Brochu. In denying coverage under the policy, the trial court stated:

“It is well established law in Illinois that damages for the repair, restoration and replacement of a defective work product or faulty workmanship are excluded under a comprehensive general liability policy, citing Western Casualty v. Brochu, 105 Ill. 2d 486. In the underlying action, La Salle National Bank as trustee seeks damages for restoration of and repair work made necessary by the insured’s faulty workmanship. The specific allegations of the third amended complaint all relate to faulty workmanship and structural or construction defects to the building itself or portions of the building rather than to any acceptable [sic] property damage. Therefore, pursuant to the Brochu and Qualls cases, 123 Ill. App. 3d 831, there is no potential for coverage for the underlying action as the claimed damages arise from alleged defective work and faulty workmanship, which is clearly excluded under the subject, Harbor policy.”

Defendants contend that both Harbor’s and the trial court’s reliance on Brochu is misplaced, because in Brochu, our supreme court did not interpret a BFPD clause containing the Work by the Insured and Faulty Workmanship Exclusions which are at issue here. Rather the Brochu court interpreted two different exclusions, (n) (which excluded property damage to the named insured’s work) and (o) (which excluded property damage to work performed by or on behalf of the named insured). That the Brochu court relied on language entirely different from that in the Harbor policy is supported by the plain language of the case itself. (Brochu, 105 Ill. 2d at 495, 475 N.E.2d at 876.) Although Harbor cites additional cases which also rely on Brochu, these cases all contain the (n) and (o) clauses, which are not at issue in the policy at hand. See Great Southwest Fire Insurance Co. v. Greenlee (1985), 134 Ill. App. 3d 816, 481 N.E.2d 28; see also Qualls v. Country Mutual Insurance Co. (1984), 123 Ill. App. 3d 831, 462 N.E.2d 1288.

Illinois courts have not yet interpreted the Work by the Insured Exclusion, found in the BFPD Endorsement of Harbor’s insurance policies. At issue in the construction of this clause is the phrase, “damage to work performed by the named insured arising out of the work, or any portion thereof, or out of the materials, parts or equipment furnished in connection therewith.” Defendants in the underlying action maintain that this clause excludes damage to the work of the insured when such damage is caused by the insured himself, but not when the damage is caused by someone other than the insured, such as a subcontractor. They further allege that damages claimed by La Salle are not covered by this exclusion as they do not involve damage by the insured to his own work.

The courts that have reviewed this clause have construed it in one of two ways. Fireguard Sprinkler Systems, Inc. v. Scottsdale Insurance Co. (9th Cir. 1988), 864 F.2d 648, interpreted an identical clause and found that this clause, which does exclude property damage to work by the insured from coverage, does not exclude property damage to work performed “on behalf of the insured” from coverage. The Fireguard court further stated that the absence of the “on behalf of the insured” language was critical to the parties’ intent to broaden the coverage provided to the named insured, as it assured that the exclusion applied only to damages caused by the named insured to his own work, and not to damages to the insured’s work or a subcontractor’s work that arose from the subcontractor’s work. (Fireguard, 864 F.2d at 652; see also Southwest Louisiana Grain, Inc. v. Howard A. Duncan, Inc. (La. App. 1983), 438 So. 2d 215 (in which the Louisiana Court of Appeals distinguished between the insurance coverage provided by exclusionary clauses with and without the “on behalf of” language), writs denied (La. App. 1983), 441 So. 2d 1224. But see Knutson Construction Co. v. St. Paul Fire & Marine Insurance Co. (Minn. 1986), 396 N.W.2d 229 (which relied on Bor-Son Building Corp. v. Employers Commercial Union Insurance Co. of America (Minn. 1982), 323 N.W.2d 58, and determined that exclusionary clauses with and without the “on behalf of” language should be interpreted identically in favor of the insurer).) In the absence of a construction of this clause by our supreme court, we find the reasoning in Fireguard persuasive and determine that the deletion of the “on behalf of” language from the Work by the Insured Exclusion does indeed narrow the scope of such exclusion. Such argument is buttressed by the additional cost of this revised wording to the insured.

Just as no Illinois courts have construed the Work by the Insured Exclusion, neither have they construed the Faulty Workmanship Ex-elusion. The most persuasive authority in this regard is the recent decision of W.E. O’Neil Construction Co. v. National Union Fire Insurance Co. (N.D. Ill. 1989), 721 F. Supp. 984. In this case, the district court, in construing Illinois law and the Faulty Workmanship Exclusion, recognized the distinction between defect and resulting damage. This distinction was raised by defendant insureds in their assertions that their claims were not excluded under the Faulty Workmanship Exclusion. The defendants maintained that what was excluded by the Faulty Workmanship Exclusion was repair to their own faulty work product and not consequential or resulting damage to the building as a whole. Although both Harbor and the trial judge reject this argument (and instead rely on the reasoning of the Brochu court, which as already mentioned construes different clauses), it is indeed tenable, and is supported not only by the O’Neil decision, but also by other Illinois case law, which does deal with the defect damage distinction though not within the context of the BFPD Endorsement. See Elco Industries, Inc. v. Liberty Mutual Insurance Co. (1977), 46 Ill. App. 3d 936, 938, 361 N.E.2d 589. See also United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1991), 144 Ill. 2d 64 (USF&G) (in which this court supported the rationale behind the defect damage distinction, holding that recovery for the costs of the removal, repair and/or replacement of asbestos-containing products was not precluded by a clause excluding damage to the insured’s own work. Because such costs were potentially covered by the policy at issue, our supreme court determined that the trial court’s grant of summary judgment on the duty to defend was inappropriate).

As noted by the court in USF&G, if the underlying complaint alleges facts within or potentially within the policy coverage, the insurer is obliged to defend its insured. Since there is no settled Illinois case law regarding the construction of either of the two exclusionary clauses at issue in this case (USF&G does not construe a BFPD Endorsement), and since the case relied upon by the trial judge does not contain identical language to that which is at issue here, the grant of summary judgment on the question of duty to defend was an inappropriate remedy to the problem at hand. Only after all genuine issues of material fact relating to the cause of the alleged damage are resolved can it be determined whether all or any of the damages fall within the exclusionary clauses at issue.

Because we conclude that neither of the exclusionary clauses at issue precludes coverage to defendants, we reverse the trial court’s grant of summary judgment to Harbor on the issue of duty to defend. We do not address the duty to indemnify, as this obligation may only be determined after a trial on the merits. Since the trial court granted Harbor’s motion for summary judgment, it had no occasion to consider the conflict of interest issue raised by defendants which they claim entitles them to direct their defense and appoint counsel. Since we reverse and remand on the issue of duty to defend for the reasons set forth above, we further direct the trial court to address this issue in connection with the further proceedings in this matter.

Reversed and remanded.

GORDON and GREIMAN, JJ., concur.

      initially, this suit involved appeals under two separate policies (Nos. GLA 006405 and GLA 006249) issued by Harbor. However, on August 5, 1991, this court was advised that both the Tishman entities (Tishman Construction Company, Tishman Liquidating Corporation, Teeco Properties, L.P., and Tishman Construction Corporation of Illinois) and Crouch-Walker had settled their claims with Harbor. Therefore, their claims have been dismissed and are not affected by this opinion. (Policy GLA 006249, which covered Crouch-Walker exclusively, is also no longer at issue.)


author: JUSTICE EGAN

text:
    JOHN K. SCHLOSSER et al., Plaintiffs-Appellees, v. RUDOLPH O. SCHLOSSER, JR., Defendant-Appellant (Kurt Robert Schlosser et al., Intervening Petitioners-Appellants).
    First District (6th Division)
    No. 1-90-0606
    Opinion filed August 30, 1991.

      Jon A. Duncan, of Chuhak & Tecson, of Chicago (Barry A. Feinberg, of counsel), for appellants.
    Vincent J. Pascucci, of Pascucci & Associates, of Chicago, for appellees.
   JUSTICE EGAN

delivered the opinion of the court:

The plaintiffs, John K. Schlosser and David P. Schlosser, are the sons of Frank Schlosser and the grandchildren of Mildred Schlosser, who died in 1985. She had created an inter vivos trust in 1981 naming her son, Rudolph 0. Schlosser, Jr., as trustee. The beneficiaries of the trust are Rudolph’s children. The plaintiffs brought suit to set aside the trust alleging that in 1976 Mildred Schlosser had executed a will which divided her estate into equal shares for her two sons, Frank and Rudolph, and their decedents. The suit also alleged that Mildred lacked the mental capacity to know and understand the nature and effect of the trust instrument and that the trust instrument was executed through the undue influence of Rudolph Schlosser. The caption of the complaint did not specify that Rudolph Schlosser was being sued as trustee. The trust beneficiaries were not named as defendants.

The defendant was served by abode service on January 20, 1987. He failed to appear or answer within 30 days of service, and a default order was entered on March 12, 1987. Judging from the absence of any motion in the record, we conclude that the default was entered without notice to the defendant. On the same day another order provided for a “prove-up” on April 24,1987.

On April 10, 1987, attorney Manfred Walke filed a motion to dismiss the complaint on behalf of the defendant. A hearing was set for May 28 on the motion to dismiss; the order setting the hearing date also provided for a briefing schedule. Again judging from the absence of any motion in the record and the absence of the plaintiffs’ attorney in court, we conclude that that order was entered without notice to the plaintiffs’ attorney. On April 24, the plaintiffs’ attorney asked for a continuance on the “prove-up” hearing until May 28. Neither the defendant nor Walke was present on that date. The record does not show whether any notice of the prove up date had been given them.

On May 28, 1987, neither Walke nor the defendant was present in court. The judge ruled that because there had been no appearance filed by the defendant, the motion had been “improperly filed” and would not be considered. He also heard evidence and entered an order setting aside the trust and ordering the trustee to account for all of the assets of the deceased which had come into his possession. The judge also added language under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) stating, “There is no just reason to delay the enforcement of this order or an appeal therefrom.”

On April 14, 1988, the plaintiffs’ complaint was dismissed for want of prosecution. The plaintiffs filed a motion to vacate the order of dismissal, but the motion was not served upon the defendant because, as the plaintiffs maintained, Circuit Court Rule 2.1 does not require service upon a party in default. On April 28, 1988, the judge vacated the order of dismissal.

On July 20, 1988, Manfred Walke was disbarred by the Illinois Supreme Court. Walke did not notify the defendant of his disbarment.

On April 13, 1989, the case was again dismissed for want of prosecution; however, the dismissal was again vacated without notice to the defendant, and the lawsuit was reinstated on May 3, 1989. On May 31, 1989, the plaintiffs’ attorney sent a letter to Albert I. Zemel of the firm of Zemel & Shapiro, who had apparently written to the plaintiffs’ attorney on May 25, 1989. The plaintiffs’ attorney explained that a default judgment had been entered in May 1987.

On October 25, 1989, Zemel & Shapiro filed a petition for leave to intervene on behalf of the beneficiaries of the trust and a petition on behalf of the defendant and the beneficiaries to vacate the default judgment entered on May 28, 1987.

On January 30, 1990, the judge granted the plaintiffs’ motion to strike and dismiss the defendant’s petition to intervene and petition to vacate. The judge found that the petition had been filed more than two years after the default order and, therefore, the defendant could not attack the judgment pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401.) On February 26, 1990, the judge denied the intervening petitioners’ motion to reconsider the January 30, 1990, order.

The petitioners advance several grounds for reversal of the judgment: The beneficiaries of the trust were necessary parties and, therefore, failure to name them as parties renders the judgment void; the plaintiffs lacked standing to sue; the trial judge abused his discretion in ruling that their claim was time barred; the two-year limitation does not apply to a void judgment; and the two-year limitation period was tolled because one of the beneficiaries was a minor and because the plaintiffs fraudulently concealed the judgment. The petitioners have also argued that the judgment is not a bar to the defense by the trustee because the caption of the complaint did not identify the defendant as a trustee, but rather it named him as an individual.

We hold without extensive discussion that the failure to name the defendant as a trustee in the caption is not material. The body of the complaint makes it clear that the action is brought against the defendant as a trustee. (See Tarpoff v. Karandjeff (1959), 17 Ill. 2d 462, 162 N.E.2d 1; Novak v. Thies (1980), 89 Ill. App. 3d 991, 412 N.E.2d 666.) In like manner, we reject the petitioners’ claim that the plaintiffs fraudulently concealed the judgment. The petitioners did not properly raise the argument in the trial court. We have examined the specific parts of the record to which the petitioners have directed us and conclude that they do not allege a claim for fraudulent concealment.

The principal issue is whether the beneficiaries were necessary parties. The plaintiffs agree that, if they were, the judgment is void. If the judgment is void, the two-year limitation of section 2— 1401(c) of the Code of Civil Procedure does not bar relief. Village of Franklin Park v. Ogilvie (1982), 106 Ill. App. 3d 301, 435 N.E.2d 1177.

The plaintiffs argued in the trial court and in this court that a beneficiary of a trust is never a necessary party. That argument is at odds with pronouncements of our supreme court in Illinois National Bank v. Gwinn (1945), 390 Ill. 345, 61 N.E.2d 249, and Village of Lansing v. Sundstrom (1942), 379 Ill. 121, 39 N.E.2d 987. In both cases the court held that beneficiaries of a trust are necessary parties to an action to foreclose their interest. However, as noted in Village of Lansing, beneficiaries are not necessary parties if their interests are represented by others so that they receive actual and efficient representation, or the beneficiaries are so numerous that the delay and expense of naming them are oppressive and burdensome. Neither exception is applicable in this case. There are only five beneficiaries, all of whom were related to and known to the plaintiffs. The plaintiffs have not alleged that joinder of those five beneficiaries would have been oppressive or burdensome. It should be obvious that the beneficiaries did not receive actual and efficient representation when the trustee, either personally or through his later-to-be-disbarred attorney, did not take appropriate steps to avoid a default or to follow the case in order to keep abreast of its status.

The plaintiffs rely on Kerrison v. Stewart (1876), 93 U.S. 155, 23 L. Ed. 843, which held that “it is well settled that [the] beneficiaries are not necessary parties to a suit by [the trustee] against a stranger to enforce the trust *** or to one by a stranger against [the trustee] to defeat it in whole or in part.” (93 U.S. at 160, 23 L. Ed. at 845.) Decisions of the United States Supreme Court are not binding upon State courts unless the result is required by the United States Constitution. (People v. Gillespie (1990), 136 Ill. 2d 496, 557 N.E.2d 894.) The result in Kerrison is not required by the United States Constitution. Moreover, we note that Kerrison acknowledges that “cases may arise in which it would be proper to have before the court the beneficiaries themselves, or some one other than the trustee to represent their interests. They then become proper parties, and may be brought in or not, as the court in the exercise of its discretion may determine.” (93 U.S. at 160, 23 L. Ed. at 845.) We conclude that, insofar as Kerrison may be contrary to the expressions of the supreme court of Illinois, we decline to follow Kerrison.

The plaintiffs also cite Wollenberger v. Hoover (1931), 346 Ill. 511, 179 N.E.42, for the proposition that beneficiaries are not necessary parties if the litigation does not concern the rights of the trustees and the beneficiaries “as between themselves.” (346 Ill. at 576.) In that case the plaintiff was the president and 99% shareholder of Wollenberger and Company. He filed suit in an individual capacity alleging a breach of contract. The corporation was not a party to the contract, was not bound by the contract and was not bound by Wollenberger’s action taken individually. Consequently, the supreme court held, the corporation had no interest in the case and was not a necessary party. At the same time the court recognized that “all persons having any substantial legal or beneficial interest in the subject matter of litigation who will be materially affected by the decree must be made parties.” (346 Ill. at 574-75.) In the case before us, if the default is permitted to stand, the trust will cease to exist and the beneficiaries will be effectively bound by the trial court order which terminated the trust. Unlike the corporation in Wollenberger, the beneficiaries have a very substantial direct interest in the outcome of the litigation.

The plaintiffs’ argument is also based on certain amendments to the Probate Act of 1975 (Ill. Rev. Stat. 1987, ch. llOVz, par. 1 — 1 et seq.). Section 8 — 1 provides that: “[w]hen the petition [for the admission of a will] names a trustee of a trust as a party, it is not necessary to name as a party any beneficiary of the trust who is not an heir or legatee.” Ill. Rev. Stat. 1987, ch. llO1^, par. 8 — 1.

Section 1 — 2.11 provides that: “[w]henever any provision of this Act requires notice or accounting to or action by an interested person *** and a trustee of a trust is an interested person, no notice or accounting to or action by a beneficiary of the trust in his capacity as beneficiary shall be required.” Ill. Rev. Stat. 1987, ch. llOVz, par. 1 — 2.11.

Section 24 — 2 provides that: “[n]o notice [of accounting], however, shall be required *** whenever a trustee of a trust is an interested person, to any beneficiary of the trust by reason of the beneficiary’s interest in the trust.” Ill. Rev. Stat. 1987, ch. llO1^, par. 24 — 2.

It is the plaintiffs’ position that, in the Probate Act, the legislature has codified case law confirming that where a trustee is a party the beneficiary is not a necessary party. We note first that the Act, obviously, purports to regulate probate proceedings and not to govern inter vivos trusts. If the legislature intended to abrogate the pronouncements of the supreme court in Illinois National Bank v. Gwinn and Village of Lansing v. Sundstrom, it should have said so more clearly. A statute will be construed to be in derogation of the common law only to the extent that the legislative intent is clear. (Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App. 3d 971, 326 N.E.2d 74. See also Smith v. Laatsch (1885), 114 Ill. 271, 2 N.E. 59.) Second, we note that section 8 — 1 is restricted to procedures governing will contests. Although not necessary to our decision, we observe that section 1 — 2.11 and section 24.2 may be construed to mean that notice to beneficiaries is not required only if the trustee himself is an interested party.

Last, we note that in Norris v. Estate of Norris (1986), 143 Ill. App. 3d 741, 493 N.E.2d 121, the trial judge held that section 24 — 2 excused notice to beneficiaries of probate proceedings. The appellate court reversed, noting that the beneficiaries, not the trustee, were the true parties in interest.

For these reasons, we judge that the law of Illinois National Bank v. Gwinn and the Village of Lansing v. Sundstrom is still the law in Illinois and that the beneficiaries were necessary parties. That being so, the failure to name them rendered the judgment void.

Since this case must be remanded, we will address other arguments advanced by the parties for further guidance to the trial court. If we were to agree with the plaintiffs that the intervenors were not necessary parties and that the judgment was not void, we would still be faced with the argument of the intervenors that the statutory limitation was tolled as to Sara Schlosser, who was a minor. The plaintiffs did not answer that argument in their brief. During oral argument, they maintained that Sara could never be granted leave to intervene because she was not a necessary party. We must reject that argument. The right of intervention is not restricted to necessary parties. (See City of Chicago v. John Hancock Mutual Life Insurance Co. (1984), 127 Ill. App. 3d 140, 468 N.E.2d 428.) We hold, as a matter of law, that Sara Schlosser had a sufficient interest to require that she be permitted to intervene.

The petitioners argue that the judgment should be reversed without remand on the ground that the plaintiffs are not proper parties. They contend that the plaintiffs did not have any relationship with the trust or the estate of Mildred Schlosser. (See Kittay v. Allstate Insurance Co. (1979), 78 Ill. App. 3d 335, 397 N.E.2d 200.) Contrary to the plaintiffs’ contention, the petitioners did raise this argument in the trial court. However, the question was never reached. Although we recognize that the question of standing is jurisdictional and may be raised at any time (People v. Capitol News, Inc. (1990), 137 Ill. 2d 162, 560 N.E.2d 303), we decline to pass on the question. It has not been appropriately briefed and argued by the plaintiffs in either the trial court or in this court. The trial court may appropriately address the question after remand.

We wish to make our position clear that we do not agree with another argument made by the plaintiffs. The default order was entered on March 12, 1987, and the defendant filed a motion to dismiss the complaint without having filed an appearance, without having filed a motion to vacate the default and without notice to the plaintiffs. Because the defendant filed his motion to dismiss without having vacated the default, we agree that the judge could properly refuse to entertain the motion. But we do not agree with the plaintiffs that the defendant did not “appear.” Section 2 — 301(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 301(a)) provides in part as follows:

“Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. *** Every appearance, prior to judgment, not in compliance with the foregoing is a general appearance.” (Emphasis added.)

A motion to dismiss constitutes a general appearance subjecting the moving party to the jurisdiction of the court. (Loss v. Loss (1967), 80 Ill. App. 2d 376, 224 N.E.2d 271.) The appearance in this case may have been late, but it was prior to judgment and a general appearance nonetheless.

For these reasons, we reverse the judgment of May 28, 1987; we reverse the order denying the petition to intervene; we vacate the order of default; we remand the cause with directions to permit the defendant and intervenors to plead to the complaint and for further proceedings consistent with this opinion.

Judgment reversed and remanded.

RAKOWSKI, P.J., and LaPORTA, J., concur.


author: JUSTICE McNAMARA

text:
    NORTHROP CORPORATION, Plaintiff-Appellant, v. AIL SYSTEMS, INC., et al., Defendants-Appellees.
    First District (6th Division)
    No. 1-91-0970
    Opinion filed August 30, 1991.
    Wildman, Harrold, Allen & Dixon, of Chicago, and Sheppard, Mullin, Richter & Hampton, of Los Angeles, California (Robert E. Kehoe, Jr., Michael R. Blankshain, James G. Bonebrake, Joseph F. Coyne, Mary E. Tar-duno, and Stephen J. O’Neil, of counsel), for appellant.

      Ross & Hardies and Michael H. King, P.C., both of Chicago (Kurt H. Feuer and J. Michael Amrein, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff filed this interlocutory appeal from an order of the circuit court of Cook County striking its prayer for injunctive relief and denying its motion for preliminary injunction.

Plaintiff, Northrop Corporation (Northrop), is primarily engaged in the design, development and manufacture of defense electronics systems for use in high technology aircraft, such as the B-1B bomber. Defendants in this action are Eaton Corporation and AIL Systems, Inc. (AIL, collectively), Eatons’s wholly owned subsidiary. Northrop and AIL entered into a contract (the Agreement) in December 1980, which provided that if AIL obtained a contract from the United States Air Force (the government) to develop the B-lB’s electronic countermeasures system (ECM system), then AIL would engage Northrop as a subcontractor for the development and initial production on the Bands 6, 7 and 8 transmitters, a part of the system. The Agreement also provided that AIL would retain Northrop as a subcontractor “subject to Government approval” if the government awarded AIL “follow-on development or production contracts.” The Agreement specifically provided for termination under certain circumstances, including: “[interruption of the team relationship *** at any time as a result of Government direction”; “[cancellation of the referenced program”; and “[t]he expiration of twelve (12) months from the date of this agreement.” AIL subsequently received the prime contract from the government, and pursuant to the Agreement, awarded Northrop contracts regarding the Bands 6, 7 and 8 transmitters for nearly 10 years, bringing in approximately $672 million in revenue to Northrop.

In the late 1980’s, in response to the government’s requests, AIL initiated an integrated program to correct deficiencies and increase the capabilities of the ECM system, which it referred to as “CORE” production effort. Pursuant to AIL’s request, Northrop submitted a proposal for $52 million for CORE effort affecting Bands 6, 7 and 8 transmitters. AIL subsequently informed Northrop that its “make/buy review” of the CORE effort, conducted “with Air Force concurrence” and required by its contract with the government, revealed that it would be more cost effective to perform the work in-house. As a result, AIL decided to perform all work itself rather than subcontracting it out. Northrop contested AIL’s decision, claiming that the Agreement required all work affecting the Bands 6, 7 and 8 transmitters be subcontracted to Northrop. AIL responded by letter dated August 9, 1990, that the work was not contemplated by or subject to the Agreement. AIL also stated that the work was performed pursuant to the correction of deficiency clause in its prime contract with the government.

On November 9, 1990, Northrop filed a complaint against AIL in the District Court for the Northern District of Illinois based upon AIL’s alleged obligation under the Agreement to subcontract CORE retrofit work to Northrop. On December 4, 1990, the Federal court dismissed Northrop’s complaint for lack of subject matter jurisdiction. AIL’s counsel informed Northrop at the hearing that it had filed a declaratory judgment action in New York seeking a judgment that the Agreement was terminated or, alternatively, that AIL had completely fulfilled its obligations under the Agreement. The New York court has stayed that suit pending the outcome of this case.

Later on the same day, Northrop filed this complaint against AIL in the circuit court of Cook County which was virtually identical to its Federal complaint and was based upon AIL’s alleged breach of the Agreement. The complaint contained causes of action for declaratory relief, promissory estoppel, breach of contract and breach of implied covenant of good faith and fair dealing. Northrop alleged that it would be irreparably harmed by AIL’s breach through loss of future business, harm from its competitors, and destruction of its technical work force. AIL subsequently moved to dismiss based upon the prior, pending New York action and on the ground that Northrop failed to properly state a claim for injunctive and other relief. On January 25, 1991, Northrop filed a preliminary injunction motion supported by six affidavits, which it maintains sets forth specific facts establishing a contract right, irreparable injury, likelihood of success on the merits and inadequacy of a monetary remedy.

On February 27, 1991, the trial judge denied injunctive relief, finding that Northrop had an adequate remedy at law for money damages for breach of contract, and that the complaint failed to contain a cause of action for specific performance. The judge did not read Northrop’s preliminary injunction motion or the supporting affidavits and refused to defer his ruling until he had done so. The court struck Northrop’s prayer for injunctive relief, denied its preliminary injunction motion, and transferred the case and the two pending motions to the law division, where they remain pending. Northrop filed an interlocutory appeal from this order on March 28, 1991. On March 8, 1991, the government terminated its CORE effort prime contract with AIL due to a lack of funding.

On appeal, Northrop argues that the trial court erred in striking its prayer for injunctive relief; in denying its preliminary injunction motion; and in failing to consider the preliminary injunction motion and supporting documents and affidavits.

We first consider whether the trial court improperly denied Northrop’s injunctive relief. Under the general principles of equity, a party seeking injunctive relief must establish a lawful right needing protection; an inadequate remedy at law; and that irreparable harm will be suffered without the protection sought. (Amigleo v. Bernardi (1988), 175 Ill. App. 3d 449, 529 N.E.2d 1020.) A party seeking a preliminary injunction must also establish a substantial likelihood of success on the merits. (American National Bank & Trust Co. v. Carroll (1984), 122 Ill. App. 3d 868, 462 N.E.2d 586.) Injunctive relief is an extraordinary remedy which should be used sparingly, with due restraint, and only when the circumstances clearly require it. (Hannan v. Watt (1986), 147 Ill. App. 3d 456, 497 N.E.2d 1307.) Finally, because the decision to grant or deny such relief lies in the trial court’s sound discretion and its findings may not be disturbed absent an abuse thereof (Instrumentalist Co. v. Band, Inc. (1985), 134 Ill. App. 3d 884, 480 N.E.2d 1273), our role on review is limited to considering whether the trial court abused its discretion (Hough v. Weber (1990), 202 Ill. App. 3d 674, 560 N.E.2d 5), or whether its judgment was against the manifest weight of the evidence. Jones v. Board of Fire & Police Commissioners (1984), 127 Ill. App. 3d 793, 469 N.E.2d 393.

We conclude that the trial court properly denied injunctive relief. First, the court specifically found that Northrop had an adequate remedy at law for money damages or breach of contract. If there is a legal or equitable remedy that will make plaintiff whole after trial, a preliminary injunction should not issue. (Schwartz v. Coldwell Banker Title Services, Inc. (1989), 178 Ill. App. 3d 971, 533 N.E.2d 1161.) A legal remedy is adequate when it is clear, complete and is as practical and efficient in achieving the prompt administration of justice as is the equitable remedy. (Shodeen v. Chicago Title & Trust Co. (1987), 162 Ill. App. 3d 667, 515 N.E.2d 1339.) The judge described Northrop’s case as “nothing more than a thinly disguised breach of contract action” and Northrop’s prayer for injunctive relief as “an additional gilding of the lily.” The court then transferred plaintiff’s case to the law division with its four causes of action intact. We agree with the trial court that the gravamen of the complaint is breach of contract. Presumably, the court will determine the parties’ rights under the contract, and if it finds a breach occurred, may award damages. Under the circumstances, this remedy is clear, complete and more practical and efficient than injunctive relief.

Nor do we believe that Northrop adequately demonstrated a likelihood of success on the merits to justify a preliminary injunction; that is, that the Agreement here is the type that courts will specifically enforce. Generally, Illinois courts have refused to enter mandatory injunctions to enforce contracts “which by their very terms call for a succession of acts whose performance cannot be consummated by one transaction, and which require protracted supervision and direction.” (New Park Forest Associates II v. Rogers Enterprises, Inc. (1990), 195 Ill. App. 3d 757, 762, 552 N.E.2d 1215, 1218.) Moreover, a party seeking a mandatory injunction must show “ ‘extreme urgency or “great necessity” ’ ” that “ ‘the need for such relief [is] *** clearly established and free from doubt.’ [Citation.]” (New Park Forest Associates, 195 Ill. App. 3d at 761, 552 N.E.2d at 1217.) Where complete relief may be afforded plaintiff upon final hearing, plaintiff is not entitled to mandatory preliminary relief. In re Marriage of Sherwin (1984), 123 Ill. App. 3d 748, 463 N.E.2d 755.

Moreover, as Northrop acknowledged in its motion for an extension of time to file its brief in this court, “intervening events here have removed the urgency for an immediate decision” in this case. As indicated above, Northrop will be afforded complete relief upon final hearing of this matter and, therefore, failed to establish the necessity for the extraordinary relief requested.

Finally, we note that the government cancelled AIL’s prime contract in March 1991. As such, AIL could not award Northrop a subcontract even if the trial court on remand ordered injunctive relief. Although Northrop argues that the government will likely reinstate the project in the future, a court of equity cannot assume what it cannot accomplish. (New Park Forest Associates, 195 Ill. App. 3d 757, 552 N.E.2d 1215.) Moreover, through Northrop’s declaratory judgment action, it can seek an order determining its rights under the contract. Under the circumstances, such remedy is more appropriate than an injunction.

In summary, Northrop failed to establish an inadequate remedy at law and a need for injunctive relief. Consequently, the court’s denial of Northrop’s petition for a preliminary injunction and its dismissal of that portion of the complaint requesting injunctive relief were not improper. In view of that holding, it is not necessary to consider Northrop’s complaint that the trial judge failed to consider certain material furnished to him by Northrop.

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

Judgment affirmed.

RAKOWSKI, P.J., and LaPORTA, J., concur.