author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DICKEY GAINES, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—0804
    Opinion filed September 4, 1992.

      Robert S. Markin and Terri L. Mascherin, both of Jenner & Block, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and James E. Fitzgerald, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

The defendant, Dickey Gaines, and his brother, Michael Gaines, were jointly indicted for two counts of murder, one count of attempted murder, two counts of armed robbery, and other offenses. Defendant and Michael were tried separately. Defendant’s jury returned general verdicts of guilt for the crimes charged. The State requested a death penalty hearing pursuant to which the jury found defendant eligible for the death penalty under subparagraphs (3) and (6) of section 9 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)). Subsequently, defendant was sentenced to death. On direct appeal, the Illinois Supreme Court reversed one armed robbery conviction but otherwise affirmed the convictions and death sentence. In defendant’s habeas corpus proceedings, the United States Court of Appeals for the Seventh Circuit held that inadmissible evidence had been used against defendant identifying him as the triggerperson and the remaining evidence supported defendant’s existing homicide convictions only under the theory of felony murder. Accordingly, the Seventh Circuit offered the State the following options: to release defendant; to retry defendant; to accept defendant’s convictions for felony murder and sentence defendant to a term of years; or to accept defendant’s convictions for felony murder and, in another death penalty hearing, attempt to prove defendant’s eligibility for the death penalty under the particular requirements of section 9 — 1(b)(6) (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(6)). The State invoked the last option and the trial court convened for a second death penalty hearing on November 3, 1988. A new jury found that defendant was eligible for the death penalty under section 9 — 1(b)(6) but, after hearing evidence in mitigation, voted not to impose the death penalty. The trial court then sentenced defendant to natural life in prison. Defendant appealed to this court. We consider: (1) whether defendant is entitled to a new trial in light of the selection and racial composition of his 1979 trial jury; (2) whether defendant’s right to a speedy trial was violated pursuant to the period between the disposition by the Seventh Circuit and the November 3, 1988, death penalty hearing; and (3) whether the trial court erred by sentencing defendant to natural life in prison.

We affirm in part, reverse in part, and remand for resenten-cing.

This case has a long history. In the early morning hours of December 22, 1978, defendant, Dickey Gaines, and his brother, Michael Gaines, along with two other men, Andre Davis and Lenious Thomas, left a bar in Chicago and walked to a house near 117th Street and Michigan Avenue. In a second-floor room, defendant and Michael Gaines announced a stick-up. Immediately, either defendant or Michael fired several shots from a handgun which resulted in the deaths of Andre Davis and another man, Causia McCall, who was also present in the room. Thomas survived the incident and assisted the police in arresting defendant and Michael.

In 1979, defendant and Michael were tried separately. Michael was convicted of all of the crimes charged except for one armed robbery charge and was sentenced to an extended term of 70 years for the murders and to concurrent 30-year terms for the armed robbery and other offenses. In defendant’s trial, the jury returned general verdicts of guilt on the murder charges resulting in defendant’s convictions under each of the classifications of murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9 — 1(a)(1), (a)(2), (a)(3)). Defendant was also convicted of one count of attempted murder, two counts of armed robbery, and other lesser offenses. In view of the murder convictions, the State requested a death penalty hearing under section 9— 1(b) (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)). The same trial jury convened for the death penalty hearings. After the eligibility phase of the hearing, the jury found that defendant was over the age of 18 at the time of the murders and that two of the aggravating factors under section 9 — 1(b) existed, to wit, defendant had been convicted of murdering two or more individuals (section 9 — 1(b)(3)), and the murdered individuals were killed in the course of another felony (section 9 — 1(b)(6)). Therefore, the jury found that defendant was eligible for the death penalty. After the aggravation-mitigation phase of the hearing, the jury found that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the trial court sentenced defendant to death.

Defendant appealed his convictions and death sentence directly to the Illinois Supreme Court pursuant to Supreme Court Rule 603 (73 Ill. 2d R. 603). The court reversed one of defendant’s convictions for armed robbery but otherwise affirmed the convictions and death sentence. (People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046.) Defendant filed a petition for rehearing which was denied and the United States Supreme Court denied defendant’s petition for writ of certiorari. (Gaines v. Illinois (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285.) Defendant’s post-conviction proceedings resulted in no relief. People v. Gaines (1984), 105 Ill. 2d 79, 473 N.E.2d 868.

In 1985, defendant petitioned the Federal court for a writ of habeas corpus. The district court granted the writ, vacating defendant’s death sentence on the ground that defense counsel had been ineffective at the death penalty hearing. (Gaines v. Thieret (N.D. Ill. 1987), 665 F. Supp. 1342.) The Seventh Circuit reversed the district court but granted defendant relief on other grounds. (Gaines v. Thieret (7th Cir. 1988), 846 F.2d 402.) The Seventh Circuit held that the State trial court improperly admitted hearsay statements by Michael Gaines in defendant’s trial identifying defendant as the triggerperson. The Seventh Circuit then stated:

“All this would be academic if the state were content with punishing [defendant] for felony murder, of which he undoubtedly was guilty and for which he could probably have been sentenced to a very long term of years but not to death, unless he was the triggerfperson].” (Gaines v. Thieret (7th Cir. 1988), 846 F.2d at 407.)

Therefore, the Seventh Circuit initially granted the State 120 days to invoke one of three options: place defendant on trial again; re-sentence him to a term of years for felony murder; or release him. On June 30, 1988, the court amended its order to allow the State a fourth option: to accept defendant’s convictions for felony murder and, in another death penalty hearing, attempt to prove defendant’s eligibility for the death penalty under the particular requirements of section 9 — 1(b)(6) (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(6)), which provided:

“(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:
6. the murdered individual was killed in the course of another felony if:
(a) the murdered individual was actually killed by the defendant and not by another party to the crime or simply as a consequence of the crime; and
(b) the defendant killed the murdered individual intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm to the murdered individual or another; and
(c) the other felony was one of the following: armed robbery, robbery, rape, deviate sexual assault, aggravated kidnapping, forcible detention, arson, burglary, or the taking of indecent liberties with a child.” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(b)(6).)

In other words, at the second death penalty hearing the State would need to prove that defendant was the triggerperson pursuant to subparagraph (a) above without the benefit of the inadmissible evidence. In addition, the State would have to prove that the murders occurred in the course of an armed robbery pursuant to sub-paragraph (c) above. The Seventh Circuit’s mandate issued on July 14, 1988.

The State invoked the fourth option. On November 3, 1988, the trial court convened for a second death penalty hearing and a new jury was impanelled. Meanwhile, defendant filed another habeas corpus petition in the Federal district court alleging that the State did not exercise any of its options within the required 120 days. The district court denied the motion and the Seventh Circuit affirmed.

1988 DEATH PENALTY HEARING AND RESENTENCING

The State’s key witness during the eligibility phase of the second death penalty hearing was Lenious Thomas. The following is a summary of Thomas’ direct examination. At the time of the murders, Thomas had known Davis for 16 years but he did not know McCall. The night of the murders, Thomas and Davis were at a bar at 117th Street and Michigan Avenue in Chicago. Thomas sat by the bar and watched Davis play pool. Thomas asked for and received from Davis a marijuana cigarette. Thomas and another man, whom Thomas did not know, went outside the bar to smoke the marijuana cigarette. Thomas later learned that this man was Michael Gaines. After smoking the marijuana cigarette, the two men reentered the bar and Thomas went back to his seat next to the bar. As it came time for the bar to close, Thomas left the bar with Davis, Michael Gaines, and defendant, who had apparently been in the crowded bar. Thomas had never before met defendant.

The men walked three or four blocks to a two-flat house on 117th Street. Davis told the men that he needed to pick up some clothes and some boots that he had left at the house. Thomas had never been to this house. The men had a conversation while they walked but Thomas did not listen closely.

All four men proceeded to a room on the second floor of the house. A man was sleeping on a mattress on the floor and was wearing Davis’ boots. Unable to wake the man, Davis removed the boots, took his own shoes off, and put on the boots. Davis left the room carrying his shoes and a couple of pair of pants. Defendant and Michael stayed in the room.

Davis and Thomas than went to another room down the hall. Davis stated that he wanted to say “hi” or “bye” to Causia McCall, who was sleeping on a couch in this room. Thomas stayed by the door. Thomas testified that he was leaning on the open door with his left hand and that his right hand was in his back pants pocket. The lights were on in the room.

As Davis began shaking McCall, defendant and Michael arrived in the doorway. According to Thomas, defendant, now standing two to three feet away from Thomas, announced a “stick-up.” Michael was in back of and to the right side of defendant. Thomas saw defendant holding a big, black gun in his right hand. Thomas attempted to take two $1 bills out of his back pants pocket with his right hand. Thomas intended to give the $2 to defendant. Defendant, however, fired a shot at Thomas. The shot missed. Thomas then dove for the floor and the two $1 bills dropped to the floor. With his face to the floor, Thomas heard several more shots and then heard footsteps inside the room. From the doorway someone said, “Michael, let’s go.” Thomas remained still until he heard footsteps leading away from the room.

When Thomas looked up, he saw Davis lying motionless across the couch. McCall remained motionless on the couch. Thomas retrieved one of the two $1 bills on the floor and then he ran from the house to a police station. Thomas returned to the house with the police to find Davis and McCall dead.

In the days after the shootings, Thomas talked to numerous police officers. Thomas also identified defendant and Michael in separate lineups.

The following is a summary of Thomas’ cross-examination. Thomas admitted that he smoked a marijuana cigarette about an hour before the shootings but denied that he drank alcohol at the bar. Thomas acknowledged that he testified at Michael’s trial that he smoked marijuana earlier the same day as well. Overall, Thomas had been smoking marijuana on a regular basis for about a year before the shootings but quit smoking it a few years later. Thomas pled guilty to possession of marijuana in 1982.

On the day of the shootings, Thomas and Davis played cards at Thomas’ house. Thomas’ testimony as to the amount of time they spent playing cards differed from his testimony at Michael’s trial. They did not gamble over the card game. When they left the house, Thomas had three $1 bills in his back pants pocket. He was also wearing a coat. The two men paid a dollar each to take a bus to visit Davis’ girl friend. The girl friend was not home so the two men walked to a liquor store where they found the girl friend. The three talked for 15 minutes and either Davis or the girl friend bought a six-pack of beer. They returned to the girl friend’s house. Thomas denied that he drank any of the beer, and he did not know if the other two drank any of the beer because he was not watching. Thomas testified that he was not a drinker, but he admitted that he had testified at Michael’s trial that he “usually drank beer.”

Thomas could not consistently account for the amount of time that he stayed at the girl friend’s house or for the events that followed. Although Thomas testified that he and Davis left the girl friend and went straight to the bar at 117th Street and Michigan Avenue, he did not remember testifying at Michael's trial that he, Davis, and the girl friend went to a restaurant before going to the bar.

Thomas and Davis arrived at the bar around 12:30 a.m. As described above, Thomas smoked the marijuana cigarette with Michael. Thomas, Davis, Michael, and defendant left the bar to walk to the house where the shootings occurred. During the walk, Michael asked Thomas if he could cover a $25 bet. Thomas answered “no,” but he did not remember if he told Michael that he had only two $1 bills in his possession.

After Davis recovered the boots and clothing in the first room, Davis and Thomas went to the second room. Contrary to his direct examination, Thomas testified that he did not remember whether there was a ceiling light in the room, but he thought there was a light on in the hallway outside the door. Thomas did not remember testifying at Michael’s trial that he did not know whether there was any lighting in the hallway outside the door. Thomas was standing on the left side of the doorway inside the room. He was watching Davis near the couch when defendant and Michael arrived at the doorway behind him. Thomas did not see Davis at any time look over towards the doorway. When defendant announced the stick-up, Thomas turned toward him.

Thomas testified that defendant fired the first shot “a second” after he announced the stick-up. Thomas immediately dove for the floor after the first shot was fired and he did not look up again. He did not know where the first shot went. After hearing the footsteps in the room, he heard a voice outside the room say, “Michael, let’s go.”

Thomas did not remember telling the police that he did not know who did it. Thomas did not remember telling the police that he could not describe what defendant was wearing and could describe only that Michael was wearing a tan hat and gloves. Thomas did not remember that he waited until five days after the shootings before he told the police about money being taken. Thomas did not remember telling the police that nobody came into the room. Thomas could only describe the gun as big and black.

Detective Robert Dwyer of the Chicago police department also testified for the State during the eligibility phase of the second death penalty hearing. On the night after the shooting, Dwyer was at the home of defendant’s mother. Michael was also at the home. The telephone rang and defendant’s mother gave Dwyer permission to listen to the phone call on an extension phone. Defendant had placed the call. Dwyer heard the following conversation between defendant and his mother: defendant asked what his mother was doing and why the family was not helping defendant; defendant said he knew the family was working with the police; he asked her what was wrong with Michael and stated that Michael was the only one that she cared about; finally, defendant asked his mother why she had not obtained money for him so he could leave town. Michael then got on the phone and Dwyer heard the following conversation between the brothers: defendant stated that he was going to “knock” Michael; defendant asked why Michael was not doing his part and stated, “don’t you know that we can get the chair for what we done”; and defendant asked why Michael did not put the gun where he was supposed to. The phone call ended when Michael stated that he would put the gun where he was supposed to.

Dwyer testified that, after the phone call, Michael took another police officer to the attic in the mother’s home where the gun was recovered.

The State also presented testimony from several other police officers; the doctor who performed the autopsies on the victims; a firearms expert; and a friend of defendant. The firearms expert testified that the bullets that were recovered from the victims’ bodies were fired from the same gun recovered in the attic.

Defendant called several witnesses during the eligibility phase of the second death penalty hearing. Oliver Emerson testified that he was in the bar at 117th Street and Michigan Avenue the night of the shootings. He saw Michael arguing with Causia McCall outside the bar. Shannon Ware testified that earlier in the day he was in the house where the shootings occurred and he saw Davis, McCall, Michael, and others, but not defendant, smoking marijuana and shooting dice. Harold Fullman, a private investigator, testified that he saw Thomas smoking marijuana a week before he testified for the State at defendant’s second death penalty hearing. Investigator Edmund Leracz of the Chicago police department testified that Thomas told him that he had been drinking beer in a bar and at a woman’s house for more than an hour the night of the shootings and that neither Michael nor defendant entered the room after the shots were fired.

Defendant’s final witness was Dr. David Hartman, an expert in neuropsychology and neuropsychological toxicology. Dr. Hartman testified that marijuana use impairs a person’s ability to perceive and recall events, and that these effects are exacerbated when the person perceiving the events has consumed alcohol, or when the events were traumatic and happened very quickly.

Defendant did not testify at the eligibility hearing.

After the evidence was presented, the jury deliberated for several hours. The jury found that defendant was the triggerperson and that the murdered individuals were killed in the course of an armed robbery. Defendant was thereby rendered eligible for the death penalty.

During the aggravation-mitigation phase of the second death penalty hearing, the State presented seven witnesses and defendant presented 21 witnesses. This time the jury found that there were sufficient mitigating factors to preclude the imposition of the death penalty.

The court then held a sentencing hearing. The court applied the sentencing guidelines that were in effect at the time of defendant’s original sentence. Those guidelines provided in part:

“(1) for murder, a term shall be not less than 20 years and not more than 40 years, or, if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in [paragraph 9 — 1(b)] are present, the court may sentence the defendant to a term of natural life imprisonment.” (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—1(a)(1).)

After the hearing, the court sentenced defendant to natural life in prison. The transcript of the proceedings shows that the trial court relied on the following in entering the sentence: defendant had not changed since the day of the shootings; defendant had not been a model prisoner; he took two lives; and defendant would be likely to commit similar crimes. However, the court made no finding that the murders were exceptionally brutal or heinous. Furthermore, by virtue of the Seventh Circuit’s disposition, the court’s consideration of aggravating factors was limited to those factors listed in section 9— 1(b)(6). Therefore, the court’s sentence of natural life in prison stands upon the evidence showing that defendant was the trigger-person and that the murdered individuals were killed in the course of an armed robbery.

After the court denied defendant’s motion for a new trial and motion to vacate his sentence, defendant filed this appeal.

Opinion

We first address the issues raised by defendant pertaining to the selection and composition of his 1979 trial jury. Despite the numerous dispositions by the State and Federal courts, defendant argues that these issues are still pending. We disagree. Both the State and Federal courts have determined that defendant cannot prevail on these issues. (E.g. People v. Gaines (1981), 88 Ill. 2d 342, 430 N.E.2d 1046; Gaines v. Thieret (N.D. Ill. 1987), 665 F. Supp. 1342.) Therefore, it is not necessary for us to address these issues again.

We next address whether defendant’s right to a speedy trial was violated in view of the period between the Seventh Circuit’s disposition and the November 3, 1988, death penalty hearing. The Seventh Circuit’s disposition involved several relevant dates: On May 4, 1988, the Seventh Circuit issued its opinion offering the State the first three options. The State filed a petition for rehearing requesting a rehearing en banc before the Seventh Circuit. This petition was eventually denied on July 6, 1988. However, on June 30, 1988, the Seventh Circuit entered an order amending the May 4 opinion thereby offering the State the fourth option. The Seventh Circuit’s mandate issued on July 14, 1988. In sum, the November 3, 1988, death penalty hearing was within 120 days of the July 14 mandate but was not within 120 days of either the May 4 opinion or the June 30 order amending the opinion. Therefore, whether defendant’s right to a speedy trial was violated will depend on a determination of which date commenced the running of the 120 days. In this regard, the Seventh Circuit entered an order stating “the 120 day period at issue in this appeal began to run on July 14, 1988, the date the mandate issued.” Consistent with this order, we hold that defendant’s right to a speedy trial was not violated.

We next address defendant’s resentencing. As stated above, the trial court’s sentence of natural life in prison stands upon a finding that defendant was the triggerperson and that the murdered individuals were killed in the course of an armed robbery. Defendant has challenged the sufficiency of the evidence for both of these findings. If the evidence does not support either finding, then defendant’s sentence of natural life in prison must be set aside. The standard of review is whether the evidence is so unreasonable, improbable or unsatisfactory that it does not provide proof of the findings beyond a reasonable doubt. People v. Smith (1991), 141 Ill. 2d 40, 565 N.E.2d 900.

The only witness the State called who could give firsthand testimony identifying the triggerperson was Lenious Thomas. We believe that Thomas’ testimony as a whole raises serious questions of credibility. While it is true that a credibility determination made by a trier of fact is entitled to great deference, it is not conclusive. (Smith, 141 Ill. 2d 40, 565 N.E.2d 900.) We also point out that we are not the first court to question the weight of Thomas’ testimony. The Seventh Circuit stated in its opinion that Thomas “was not a fully credible witness.” (Gaines v. Thieret, 846 F.2d at 406.) More importantly, we believe that Thomas’ testimony was so unsatisfactory that it cannot stand as proof beyond a reasonable doubt that defendant was the triggerperson.

Thomas testified that during the crucial moments before the shootings, he was leaning against the bedroom door with his back to the doorway. Defendant and Michael came up to the doorway from behind Thomas. When the stick-up was announced, Thomas testified that he turned towards the doorway and saw defendant and Michael. However, Thomas also testified that Davis never looked toward the door. It simply does not follow that Thomas could turn toward the door to see defendant and Michael and continue to watch Davis on the other side of the room. At any rate, Thomas testified that the first shot was fired a “second” after the stick-up was announced and he then dove for the floor and never looked up again. Therefore, the only opportunity that Thomas had to identify the triggerperson occurred in a “second’s” time. On this basis, we believe that there is at least a reasonable doubt whether Thomas could turn to the door, locate the position of defendant and Michael, distinguish defendant from Michael, and identify defendant as the one holding the gun. To further complicate matters, Thomas had never met either defendant or Michael and, in addition, Thomas was unable to describe satisfactorily the clothing the two brothers were wearing. It is also at the very least doubtful whether there was any lighting either in the room or outside in the hallway.

We also must consider that Thomas’ perception was impaired at the time of the shootings. Thomas admitted that he smoked a marijuana cigarette about an hour before the shootings. Dr. Hartman testified that marijuana use impairs a person’s ability to perceive and recall events, and that these effects are exacerbated when the person perceiving the events has consumed alcohol or when the events were traumatic and happened very quickly. Accordingly, the effects of the marijuana on Thomas were exacerbated at the very least because the shootings were traumatic and occurred very quickly. The effects may have been further exacerbated in light of the evidence suggesting that Thomas also consumed alcohol before the shootings.

In sum, not only did Thomas’ identification occur in a “second’s” time and under questionable conditions, but Thomas also suffered from exacerbated impaired perception. Again, we think that Thomas’ testimony cannot stand as proof beyond a reasonable doubt that defendant was the triggerperson.

Moreover, other evidence suggests that Michael, not defendant, was the triggerperson. Shannon Ware testified that Michael and the two victims, but not defendant, had been in the house of the shootings earlier that day smoking marijuana and gambling. Oliver Emerson testified that he saw Michael argue with McCall at the bar the night of the shootings. After leaving the bar, Michael asked Thomas whether he could cover a $25 bet. Also, the evidence shows that Michael, not defendant, entered the room after the shooting, and Michael, not defendant, had possession of the gun when it was recovered by the police.

Finally, the remaining evidence presented by the State, including the testimony of Officer Dwyer concerning the phone conversations, reveals nothing tending to show that defendant was the trig-gerperson.

In conclusion, we hold that there was insufficient evidence to prove beyond a reasonable doubt that defendant was the triggerper-son. Therefore, it is not necessary that we address whether there was insufficient evidence to prove that the murdered individuals were killed in the course of an armed robbery.

Accordingly, defendant’s sentence of natural life in prison must be set aside. Although this court has the authority to enter a new sentence for defendant (134 Ill. 2d R. 615(b)(4)), both the State and defendant have suggested that this court remand the case to the trial court for resentencing. Therefore, we remand this case for re-sentencing.

Affirmed in part; reversed in part and remanded.

McNULTY, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    CHICAGO CITY BANK AND TRUST COMPANY, as Successor Trustee, Plaintiff-Appellee, v. JOHN ALBERT PICK, Defendant-Appellant (Gertrude Pick Lesman, Defendant-Appellee).
    First District (6th Division)
    No. 1—90—2767
    Opinion filed September 4, 1992.
    Rehearing denied October 23, 1992.
    John Albert Pick, of Lake Worth, Florida, appellant pro se.

    Baker & McKenzie, of Chicago, for appellee Chicago City Bank and Trust Company.
    Paul E. Hamer, of Northbrook, for appellee Gertrude Pick Lesman.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant-appellant John A. Pick appeals the trial court’s orders of June 6 and May 3, 1990, which granted attorney fees to defendant-appellee Gertrude Pick Lesman (Gertrude) (June 6, 1990, order), and approved a final accounting of a trust which formed the basis for the underlying litigation while at the same time denying appellant’s motion to have the accounting approval hearing continued (May 3, 1990, order). While we affirm the final accounting of the trust, we reverse the trial court’s imposition of attorney fees against appellant.

The facts which underlie the case sub judice are to be found in our division’s prior case, Chicago City Bank & Trust Co. v. Lesman (1989), 186 Ill. App. 3d 697, 542 N.E.2d 824 (Lesman I). There, the court held that appellant’s counterclaim failed to state a cause of action against appellee Chicago City Bank & Trust Co. (Chicago City Bank) for breach of fiduciary duty and an accounting in connection with the management and distribution of a trust established by Albert Pick, Sr. (appellant’s grandfather). (186 Ill. App. 3d at 702-03.) (Les-man I also held that Chicago City Bank was entitled to an award of attorney fees under the trust agreement. (186 Ill. App. 3d at 704).) Both appellant and Gertrude are remainder beneficiaries of that trust.

Upon remand, on May 3, 1990, Gertrude filed a motion for attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611). That motion requested attorney fees and costs, given that certain of Chicago City Bank’s costs in defending the counterclaim were taken from the trust. The motion alleged that appellant’s counterclaim was, inter alia, without reasonable cause, filed in bad faith, and wholly failed to state a cause of action.

At the hearing on May 3, 1990, in addition to receiving Gertrude’s motion for fees (which was continued in order for appellant to respond), the trial court also, on Chicago City Bank’s behest, approved the fourth and final accounting of the trust. A few days prior to the May 3, 1990, hearing, appellant sent a motion to the court and letters to counsel requesting a continuance of the May 3, 1990, hearing. The motion and supporting documents (including appellant’s affidavit and a letter from a physician) established that appellant, who lived in Florida, needed a continuance because his wife was pregnant (past her due date, in fact), and he was needed at home to care for his wife and five other children. The court nonetheless approved the final accounting and set the matter of fees over for 30 days, allowing appellant to respond.

At the June 6, 1990, hearing, the court granted Gertrude’s motion for attorney fees, entering judgment against appellant in the amount of $3,387.50 on the fee petition, and a further amount of $1,974.34, which the court apparently adjudged to be the loss of Gertrude’s share of the trust occasioned by the filing of claimant’s counterclaim, after the amount appellant was entitled to under the trust (but which appellant refused) was subtracted. The trial court noted in the record that he heard Gertrude’s fee petition pursuant to Supreme Court Rule 137.134 Ill. 2d R. 137.

Appellant has framed the first issue we address as follows: Whether the trial court “erred in not allowing the appellant’s continuance, approving the final accounting of [Chicago City Bank], without requiring the trustee to give enough information so that appellant, as a beneficiary, could approve of or formulate an objection, or in allowing a rehearing of the accounting hearing.”

In arguing this issue, appellant relies on some law which pertains to his rights, as a beneficiary, to an accounting. These contentions were refuted in Lesman I, and therefore we do not address them. We do address, however, the matter of the trial court’s denial of appellant’s motion for a continuance. Section 2 — 1007 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1007) provides: “On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.” Illinois Supreme Court Rule 183 (134 Ill. 2d R. 183) states:

“This court, for good cause shown on motion after notice to the opposite party, may extend the time for filing any pleading or the doing of any act which is required by the rules to be done within a limited period, either before or after the expiration of the time.”

A trial judge has broad discretion in allowing or denying a motion for continuance. (See Bullistron v. Augustana Hospital (1977), 52 Ill. App. 3d 66, 367 N.E.2d 88.) In argument below, counsel for Chicago City Bank and the trial judge both stated that “all” appellant said was that “his wife is pregnant.” To the contrary, appellant established by unchallenged evidence that his wife was well overdue, that she would be “on disability” for weeks after the birth, which was expected any time, and that five other children needed care. In point of fact, appellant’s wife did give birth on the day of the final accounting. Appellant, representing himself, was an out-of-State resident (Florida).

A court may not disallow a motion for a continuance if to do so would defeat the ends of justice. (See Krych v. Birnbaum (1978), 66 Ill. App. 3d 469, 384 N.E.2d 52.) If, for instance, an attorney who has prepared for trial has become ill and unable to proceed, the court should grant a continuance. (Nowaczyk v. Welch (1969), 106 Ill. App. 2d 453, 245 N.E.2d 894.) Further, the absence of a party due to illness may serve as a valid reason for granting a continuance if the motion is supported by competent evidence. (See Needy v. Sparks (1977), 51 Ill. App. 3d 350, 366 N.E.2d 237.) Here, the evidence of appellant’s need for a continuance was neither challenged nor controverted.

Notwithstanding the above, the failure to grant the continuance does not require reversal. Lacking from appellant’s arguments to either this court or the trial court are any grounds upon which we can infer that appellant was prejudiced by his inability to be present at the final accounting. No one disputes that appellant had standing to object at the final accounting. (See In re Estate of Provus (1975), 30 Ill. App. 3d 378, 332 N.E.2d 759, cited by appellant; Lesman, 186 Ill. App. 3d at 703.) However, appellant claims only that Chicago City Bank’s accounting had no middle (information as to how the trust was administered, presumably balance sheets and the like). Appellant points to no alleged errors in the method in which the trust was administered, no alleged incidences of fraudulent or negligent administration of the trust, or any other reason to dispute the fourth and final accounting. The record discloses that Chicago City Bank’s accounting of the administration of the trust since the third accounting included a thorough listing of the receipts and disbursements of the trust. Appellant has failed to establish any prejudice to him, as he has never made a sufficient challenge to the accounting on a basis which he could have asserted below, either before, at, or after the final accounting.

Given that appellant had notice of the final accounting hearing, had received the pleadings pertaining thereto, and had the opportunity to file and argue a motion for rehearing, we reject appellant’s brief argument that his due process rights were violated. We therefore hold that the ends of justice were not defeated by the trial court’s refusal to grant appellant’s motion for a continuance.

Next, we address whether the trial court erred in imposing sanctions against appellant. Appellant raises a number of questions with regard to the propriety of the sanction award, including: whether the trial court sufficiently identified specific false statements; whether the motion was untimely when it was brought more than 30 days after the allegedly offensive pleading was dismissed; whether, if fees were to be awarded, they were only awardable pursuant to the trust agreement; and whether appellant’s conduct was sanctionable. Due to the dispositive nature of this last issue, we need not address the others which appellant raises.

Initially, we note the inapplicability of Illinois Supreme Court Rule 137 (134 Ill. 2d R. 137) to this case. Rule 137 applies to offensive pleadings filed on or after its effective date, August 1, 1989. Thus, a motion for sanctions relating to a pleading filed prior to that date is properly analyzed under section 2 — 611 of the Code of Civil Procedure. See People ex rel. Village of Buffalo Grove v. Village of Long Grove (1990), 199 Ill. App. 3d 395, 557 N.E.2d 643.

Section 2 — 611 requires that an attorney or a pro se party sign every pleading, motion or other paper filed with the court. This signature constitutes a certificate that the attorney or pro se party has read the document, has made a reasonable inquiry into its basis, and believes that it is well grounded in fact, warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and the paper is not interposed for any improper purpose, such as harassment or delay. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) If a pleading, motion or other paper is signed in violation of section 2 — 611, the court “upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” Ill. Rev. Stat. 1987, ch. 110, par. 2-611.

In the case sub judice, Gertrude’s section 2 — 611 motion was directed to the counterclaim appellant filed in 1987, which was dismissed in December of 1987. It was Chicago City Bank, not Gertrude, which brought the motion pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). A review of Lesman I reveals that the dismissal was upheld based upon appellant’s failure to provide sufficient facts to state a cause of action (i.e., that regular accountings had not been made or that appellant was denied access to records). Lesman I did not, as Gertrude contended below and contends on appeal, state that appellant’s pleadings were false. Rather, the affirmance in Lesman I was predicated upon internal contradictions in appellant’s pleading and the failure to state facts sufficient to constitute a cause of action. Given that it was a section 2 — 615 motion, no evidence was before the court, other than appellant’s own counterclaim and exhibits, establishing the falsity of appellant’s pleading. At oral argument, Gertrude’s counsel was not able to point to any part of the counterclaim which is assailed as false.

Even if the case sub judice could be said to have involved falsity of factual allegations, a motion for attorney fees will not be granted where the movant merely establishes that the facts ultimately are adverse to the pleadings as set forth in the trial court. (Couri v. Korn (1990), 202 Ill. App. 3d 848, 560 N.E.2d 379.) Here, as indicated, no facts to show a lack of reasonable cause on the part of appellant are indicated in the record or specifically argued by Gertrude. It is, after all, Gertrude’s burden to prove that appellant made untrue allegations without reasonable cause. (See In re Estate of Wernick (1989), 127 Ill. 2d 61, 77, 535 N.E.2d 876.) While the granting or denying of a section 2 — 611 motion is within the sound discretion of the trial court (Jackson v. Pellerano (1991), 210 Ill. App. 3d 464, 569 N.E.2d 167), we hold that the record does not support an award of fees under section 2 — 611 in the instant case.

Gertrude presents an alternative argument to section 2 — 611 in support of the trial court’s imposition of fees against plaintiff personally, namely: the imposition of fees was proper under Webbe v. First National Bank & Trust Co. (1985), 139 Ill. App. 3d 806, 487 N.E.2d 711, and Patterson v. Northern Trust Co. (1919), 286 Ill. 564, 122 N.E. 55. Gertrude’s reliance on these cases is misplaced. Both Patterson and Webbe involved the issue of the trustee’s fees in defending the action, not the fees of another beneficiary brought under section 2— 611. As the trustee’s fees in this matter have already been litigated in Lesman I, they are not at issue in this case. Moreover, Patterson and Webbe dictate that in order for fees to be awardable out of a beneficiary’s share of the trust, so as not to prejudice other beneficiaries, the plaintiff’s action must be groundless and vexatious. In fact, the cases Gertrude cites work against her position, as the court in Webbe stated: “An attorney fee cannot be charged personally against a defeated plaintiff suing a trustee as beneficiary, absent statutory authority.” 139 Ill. App. 3d at 813, citing Patterson, 286 Ill. at 568.

In the case sub judice, we have held that the granting of Gertrude’s section 2 — 611 motion is not supported by the record, which leaves no statutory provision upon which to base a personal charge of fees against appellant. Finally, we note that appellant below steadfastly refused to take his authorized share as a remainder beneficiary under the trust. He has not appealed that issue and therefore has waived his right to his share under the trust. Thus, the extent of appellant’s share of the trust remained in the trust and has been distributed to Gertrude and the other beneficiaries. This is the extent to which fees may be charged to appellant under Patterson and Webbe in the first instance. Gertrude has cited no authority which compels a different result merely because appellant’s share under the trust did not cover the entirety of Chicago City Bank’s fees.

Accordingly, while the judgment of the circuit court approving the fourth and final accounting is affirmed, we reverse the award of fees levied under section 2 — 611 against appellant.

Affirmed in part, and reversed in part.

EGAN, P.J., and McNAMARA, J., concur.

       1. Because appellant filed his motion for a rehearing outside of the 30 days after the approval of the final accounting, Chicago City Bank is correct in pointing out that appellant would have been limited to showing “fraud, accident, or mistake.” (See In re Estate of Moore (1988), 175 Ill. App. 3d 926, 929-30, 530 N.E.2d 635.) However, as indicated, appellant did not below, and has not on appeal, established any grounds upon which the final accounting can be challenged.


author: JUSTICE SCARIANO

text:
    DELANEY ELECTRIC COMPANY, INC., Plaintiff-Appellee, v. MICHAEL SCHIESSLE, Trustee, et al., Defendants-Appellants.
    First District (2nd Division)
    No. 1—91—1124
    Opinion filed September 8, 1992.

      Burke, Wilson & McIlvaine, of Chicago (Michael F. Csar and Timothy S. Harris, of counsel), for appellants.
    Emalfarb, Swan & Bain, of Highland Park (Peter G. Swan, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant Michael Schiessle (Schiessle), trustee of a land trust, appeals from the order of the circuit court granting summary judgment in favor of plaintiff Delaney Electric Company (Delaney) as to count I of its complaint, thereby foreclosing its mechanic’s lien.

On September 19, 1987, Delaney as “contractor” entered into an AIA standard form “small construction contract” with Schiessle as “owner” to complete the electrical system on the property located at 5100 Lake Street in Melrose Park, Illinois, for $18,950. On March 28, 1988, Delaney filed a three-count complaint against Schiessle, individually and as trustee, seeking recovery for its services based on (1) foreclosure of its mechanic’s lien, (2) breach of contract, and (3) unjust enrichment. The complaint was also directed against unknown owners and unknown lien holders.

After two unsuccessful attempts to serve Schiessle personally, notice was published on June 24, July 1, and July 8 of 1988. On July 21, 1988, Delaney filed a motion for a default judgment against him individually and as trustee. On July 28, 1988, Schiessle filed a special and limited appearance and moved to quash service against himself individually and as trustee on the ground that service by publication was ineffective against himself as trustee because it did not identify him as the trustee, and that it was effective against him individually only as to “in rem cases” and would not support “an in personam judgment against an individual.” On August 16, 1988, the circuit court granted the motion to quash service against Schiessle individually and as trustee. However, on September 2, 1988, pursuant to Delaney’s motion to reconsider, the court vacated that order and found that service was “had over Michael Schiessle individually and as holder of trust No. 9 ***.” The court found no just reason to delay enforcement or appeal of its order.

On September 14, 1988, Delaney again moved for a default judgment against Schiessle individually and as trustee, and on October 6, 1988, the court ordered that “the Defendants shall either stand on their Motion to Quash and be defaulted or shall appear and file a responsive pleading by October 20, 1988.” On October 20, 1988, Schies-sle, as trustee and not individually, filed an appearance and a jury demand accompanied by a motion to dismiss in which he argued: (1) that no appropriate notice of claim and no mechanic’s lien had been recorded; (2) that no architect’s certificate had been presented; (3) that there was a mandatory arbitration clause; and (4) that necessary parties, namely, unknown owners and beneficiaries of the trust, had not been joined. In response, Delaney argued: (1) that pursuant to the Mechanics Lien Act (Ill. Rev. Stat. 1987, ch. 82, par. 1 et seq.) a direct action between a contractor and the owner may be perfected by filing suit within two years of the date of completion of the work; (2) that it was entitled to recover despite the lack of an architect’s certificate; (3) that no arbitration demand had been filed; and (4) that it was entitled to recover despite its failure to join the beneficiaries of the trust. In support of its first argument, Delaney submitted a copy of the tract search for the property which indicated that Schiessle was trustee. Schiessle then filed a supplemental motion to dismiss in which he argued that he had conveyed the property to Michael Pelfresne by warranty deed and that, therefore, because the suit was no longer being brought against Schiessle, the owner with whom Delaney contracted, the lien claim should be dismissed for failure to record the lien against the property. The warranty deed was recorded on January 26,1988.

On January 9, 1989, the court denied the motion to dismiss insofar as it related to the arbitration defense, but indicated that if either party filed a demand for arbitration with the appropriate arbitration authorities within 21 days of its ruling, it would, upon presentation of the demand, stay the proceedings pending arbitration. The court also denied that part of Schiessle’s motion that was based on the charge that no lien claim was filed and on Delaney’s failure to join necessary parties; however, the denial was “without prejudice to renewal with evidence concerning the date a lis pendens notice was first filed and with legal authority on whether the corrective deed relates back in time to the Jan. 25, 1988 deed.” Apparently, the court was referring to the fact that Schiessle had signed the deed to Pelfresne individually and not as trustee. Finally, the court denied that part of Schiessle’s motion that was grounded on Delaney’s failure to obtain an architect’s certificate, because it raised factual issues.

On January 27, 1989, Delaney moved for a default judgment against Schiessle individually because he had failed to appear or answer; and on February 6 Schiessle, as trustee, moved to compel arbitration. Schiessle also responded, as trustee, to Delaney’s motion to default him individually, arguing that the order denying his motion to quash service by publication was not an order from which an interlocutory appeal could be taken regardless of whether the court made a Rule 304 finding. He further emphasized that the court had, “at most, jurisdiction to enter an in rem or quasi in rem order affecting the interests, if any, of Defendant in the subject real estate.” On February 6, 1989, the court again denied the motion to compel arbitration presented by Schiessle as trustee, but indicated it would stay the proceedings if a demand was filed with the “Arbitration Association.” The court also granted Delaney’s motion to default Schiessle individually but only as to the mechanic’s lien foreclosure count of his complaint. In addition, the court held that because service was had by publication, the judgment was in rem and affected only Schiessle’s rights, if any, in the property. Pursuant to Rule 304(a) (134 Ill. 2d R. 304(a)), the court made its order final and appealable. On February 14, 1989, Schiessle, individually and as trustee, filed a notice of appeal from the court’s February 6, 1989, order denying his motion to compel arbitration and from its September 2, 1988, order holding that there was proper service by publication. On May 2, 1989, we granted Delaney’s motion to dismiss that appeal.

On June 7, 1989, Delaney moved for a default judgment against Schiessle, as trustee, and against unknown owners and unknown lien claimants. In support of its motion Delaney argued that this court had upheld the trial court’s September 2, 1988, ruling “on initial review and on petition for rehearing.” He argued further that Schiessle as trustee had not filed any responsive pleading and that the unknown owners and lien claimants had not appeared or filed any responsive pleadings. Schiessle responded that once an order was entered staying the proceedings and compelling arbitration, the motion for a default would become moot. In addition, he noted that the court had denied his February 6, 1989, motion to compel arbitration and his January 9, 1989, motion to dismiss, and that his appeals were rejected. On December 14, 1989, after considering Delaney’s motion for a default judgment and Schiessle’s motion as trustee to compel arbitration, the court stayed the proceedings and compelled the parties to arbitrate their dispute. On October 12, 1990, the arbitrator awarded Delaney $13,269 against “Schiessle” and denied Schiessle’s claim for relief against Delaney in its entirety.

Subsequently, Delaney filed a motion to confirm the award and for summary judgment on the foreclosure count of his complaint against all defendants. Although Schiessle originally responded to Delaney’s motion both individually and as trustee, he was later permitted to file an amended response in his capacity as trustee only. On January 17, 1991, the court denied Delaney’s motion to confirm the arbitration award, but granted summary judgment in favor of Delaney as to the foreclosure count of his complaint in the amount of the arbitration award. In its order, the court referred to its findings in open court in which it stated, “I do not feel that I can give you a judgment against Schiessle individually on any of the counts that I have pending before me nor by confirming the arbitration award can I enter a judgment against Schiessle individually.” He further stated that, “I will not give you a judgment against Schiessle, the individual, based on the arbitration award. I will give you a lien on Count I [the foreclosure count] in the amount of the arbitration award of $13,269.” On February 15, 1991, Schiessle, as trustee, filed a motion to reconsider, which was denied on March 7, 1991. On April 5, 1991, Schiessle, as trustee, filed a notice of appeal from the court’s January 17, 1991, order granting summary judgment as to the foreclosure count of Delaney’s complaint. Although the circuit court, pursuant to Delaney’s motion, certified a question for our review, neither party has bothered to brief the issues presented by such certification; we therefore decline to address it. 134 Ill. 2d R. 341(e)(7).

Schiessle contends that the circuit court erred in granting summary judgment in favor of Delaney on the mechanic’s lien count because there were genuine issues of material fact as to whether the requirements for obtaining and enforcing the lien were met. He also claims that the court erred in granting summary judgment before he had an opportunity to answer.

Our function in reviewing the trial court’s grant of summary judgment is to determine whether it correctly ruled that no genuine issue of material fact was raised by the parties. (Blankenship v. Dialist International Corp. (1991), 209 Ill. App. 3d 920, 923.) It is well settled that a motion for summary judgment should be granted only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) In making this determination the pleadings, depositions, admissions, exhibits, and affidavits are to be construed strictly against the movant and liberally in favor of the opponent. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358; Purtill, 111 Ill. 2d at 240.) In addition, the court must draw all reasonable inferences from the record in favor of the nonmoving party. (Sawko v. Dominion Plaza One Condominium Association No. 1-A (1991), 218 Ill. App. 3d 521, 528.) However, although the court may draw inferences from undisputed facts, summary judgment should be denied where reasonable persons could draw divergent inferences from the undisputed facts. (Pyne, 129 Ill. 2d at 358.) We note further that because summary judgment is a drastic means of disposing of litigation, it should be allowed only when the right of the moving party is clear and free from doubt. Purtill, 111 Ill. 2d at 240.

We first address the legal principles pertinent to mechanics’ liens as those rules apply to this case. Although not specifically enumerated in the Mechanics Lien Act (Act) (Ill. Rev. Stat. 1987, ch. 82, par. 1 et seq.), an analysis of case law demonstrates that there are four prerequisites for bringing an original contractor’s lien claim: (1) a valid contract; (2) with the owner of the property or his agent or someone who is knowingly permitted by the owner to contract for improvements; (3) for the furnishing of services or materials; and (4) performance of the contract or a valid excuse for nonperformance. (S. Love, Illinois Mechanics’ Liens §28 through §62, at 73-167 (2d ed. 1950) (hereinafter Love); Illinois Mechanics Liens §3.2, at 3 — 9 through 3 — 10 (Ill. Inst, for Cont. Legal Educ. 1986 ed. & 1989 Supp.) (hereinafter IICLE).) “The question as to whether the contractor has performed his contract is usually a simple question of fact.” (Love, §58, at 159.) However, a lien claimant who has met the prerequisites for bringing a lien claim has merely acquired an inchoate right to a lien which must then be perfected in accordance with the requirements prescribed in the Act. (Love, §63, at 168; IICLE, §3.37, at 3— 96.) For example, section 7 of the Act provides in part:

“No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within 4 months after completion *** he or she shall either bring an action to enforce his or her lien therefor or shall file in the office of the recorder of the county in which the building, erection or other improvement to be charged with the lien is situated, a claim for lien, verified by the affidavit of himself or herself, or his or her agent or employee ***. Such claim for lien may be filed at any time after the contract is made, and as to the owner may be filed at any time after the contract is made and within 2 years after the completion of the contract *** and as to such owner may be amended at any time before the final judgment.” Ill. Rev. Stat. 1987, ch. 82, par. 7.

Further, section 11 of the Act provides:

“The plaintiff shall make all parties interested, of whose interest he is notified or has knowledge, parties defendant, and summons shall issue and service thereof be had as in other civil actions ***. *** Parties in interest, within the meaning of this act, shall include * * * all persons who may have any valid claim to the whole or any part of the premises upon which a lien may be attempted to be enforced under the provisions thereof, or who are interested in the subject matter of the suit. Any such persons may, on application to the court wherein the suit is pending, be made or become parties at any time before final judgment.” Ill. Rev. Stat. 1987, ch. 82, par. 11.

We note further that the lien claimant has the burden of proving every element necessary to the establishment of the lien. (Crane Erectors & Riggers, Inc. v. La Salle National Bank (1984), 125 Ill. App. 3d 658, 663.) And because it was enacted in derogation of the common law, the requirements of the mechanic’s lien statute must be strictly construed. However, once the lien claimant has complied with the statutory requirements, the court should give the statute a liberal construction in order to carry out its remedial purpose. First Federal Savings & Loan Association v. Connelly (1983), 97 Ill. 2d 242, 246.

“Since the remedy afforded by the Act for the enforcement of mechanics’ liens is merely cumulative of the common-law remedies, it follows logically that the submission of a controversy relating to a mechanic’s lien to arbitration does not prevent a subsequent appeal to a court of chancery in a suit to foreclose the lien.” (Love, §178, at 467.) IICLE, too, states that the submission of a controversy relating to a mechanic’s lien to arbitration does not bar a suit to foreclose the lien. (IICLE, §9.1, at 9 — 4.) The remedy provided by the Act may be pursued concurrently or successively with the common law remedies until satisfaction of the claim is obtained through one of them. (Kelso-Burnett Co. v. Zeus Development Corp. (1982), 107 Ill. App. 3d 34, 39, citing West v. Flemming (1857), 18 Ill. 248.) “Even if the arbitrators proceed to an award, the making of the award does not destroy the lien, nor prevent the plaintiff’s enforcing his lien by a chancery suit, even though it will prevent his enforcing it for a larger amount than the amount of the award.” (Love, §178, at 467, citing Sorg v. Crandall (1908), 233 Ill. 79, 99; Paulsen v. Manske (1888), 126 Ill. 72.) In Sorg (233 Ill. at 99), the court stated:

“We do not think it is true, as contended by Sorg, that submission of the dispute to arbitrators waived the mechanic’s lien. Under our statute the remedy by enforcement of the lien is merely cumulative. If the arbitration had been legally conducted and the award had established that some amount was due Shields & Cook, they could not thereafter, as a matter of course, enforce a lien for any larger amount. But had a lien existed it would not have been affected by such an award except in reference to the amount that could have been collected by its enforcement.”

The law is also well established that the purpose of arbitration is to resolve disputes arising out of or relating to the contract between the parties, whereas the purpose of a lien foreclosure is for the contractor to obtain a legal hold on the owner’s property as security for a debt. J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 678.

Pursuant to the Uniform Arbitration Act (Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.), judgment is to be entered in conformity with the granting'of an order confirming, modifying or correcting an arbitration award. (Ill. Rev. Stat. 1987, ch. 10, par. 114.) In this case, the record is silent as to what transpired at the arbitration proceedings. In any event, the circuit court declined to confirm the arbitration award and, as previously noted, the circuit court’s decision not to confirm the award has not been properly presented for our review by either party. However, despite our concerns relative to judicial economy and the conservation of judicial resources, we cannot permit the circuit court to accomplish indirectly that which it acknowledged it could not do directly; which is to say that it may not “confirm” the award by granting summary judgment on the mechanic’s lien count, which sought $10,400, solely on the basis of the unconfirmed arbitration award, which stated simply that “Michael Schiessle shall pay to Delaney Electric Company the sum of *** $13,269.00,” and that “[t]he claim of Michael Schiessle against Delaney Electric Company is denied in its entirety,” without first hearing evidence as to whether the prerequisites for bringing a lien claim and the requirements for perfecting and enforcing such a claim were met. Therefore, we hold that there were genuine issues of material fact as to whether the prerequisites and requirements applicable to this case were met.

Finally, we address Schiessle’s contention that the circuit court erred in granting summary judgment before he, in his capacity as trustee, had an opportunity to answer. He claims that his failure to answer is not due to any fault of his own, but occurred because the court stayed the proceedings and compelled the parties to arbitrate their dispute. In support of this position, Schiessle relies on the authority of Mastercraft Lamp Co. v. Mortek (1960), 28 Ill. App. 2d 273, 274-75, in which the court stated:

“The pleadings are to be considered in order that the court may know what the issues are. A motion for summary judgment presupposes that the pleadings join issue. Summary judgment should not be entered where the trial judge would have to decide controverted questions of fact.”

However, as Delaney points out, according to section 2 — 1005(a) of the Code of Civil Procedure, the plaintiff may move for summary judgment “[a]ny time after the opposite party has appeared or after the time within which he or she is required to appear has expired.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(a).) In Miller v. Smith (1985), 137 Ill. App. 3d 192, 199, the court stated that “[although a summary judgment motion need not await an actual answer to the complaint or counterclaim on which it is based, the opposing party must at least be given an opportunity to file some timely response to the legal sufficiency of, or factual allegations in, that complaint or counterclaim. This procedure is necessary to enable any preliminary legal impediments to recovery by the complaining party to be identified and to insure that the factual matters at issue are properly joined for consideration by the trial court. These objectives, of course, may be accomplished not only through the filing of an answer, but also by way of such motions as those to strike and to dismiss ***.” There, the court found that the required procedure was not followed because the defendants were permitted to move for summary judgment simultaneously with the initial filing of that count. (Miller, 137 Ill. App. 3d at 199.) Similarly, in Hirz v. Lee (1963), 41 Ill. App. 2d 145, 149, the court stated that a party opposing a motion for summary judgment should be allowed a reasonable time to reply before entry of summary judgment. There, the court held that summary judgment should be vacated since the notice of motion was served three days before the motion was determined. Hirz, 41 Ill. App. 2d at 149.

In this case, Delaney filed its complaint on March 28, 1988. Schiessle, in his capacity as trustee, appeared on October 20, 1988. Delaney filed a motion to confirm the arbitration award and for summary judgment on or about November 1, 1990. Schiessle, individually and as trustee, responded to the motion on November 19, 1990. He later filed an amended response as trustee only. Although the court stayed the proceedings because of arbitration, we find that Schiessle, despite his failure to file an answer, was afforded ample opportunity to respond to Delaney’s motion before entry of summary judgment. We therefore reject this contention of error.

However, we reverse the judgment of the circuit court on the ground that there were genuine issues of material fact pertaining to the mechanic’s lien that required a trial; the cause is therefore remanded for proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

HARTMAN, P.J., and DiVITO, J., concur.

      The circuit court certified the following question for our review: “Whether the Circuit Court has jurisdiction to confirm an award of an arbitrator rendered in a construction contract arbitration pursuant to Ill. Rev. Stat. Ch. 10 §111 after 90 days since receipt of said arbitration award against a party who had neither been individually served with the Petition to Confirm nor with Summons and Complaint in the original State Court proceeding.”

      We note that the rights of the parties are governed by the mechanic’s lien statute in effect at the time the contract was made. S. Love, Illinois Mechanics’ Liens §5, at 7 (2d ed. 1950); Illinois Mechanics Liens §1.5, at 1 — 11 (Ill. Inst, for Cont. Legal Educ. 1986 ed. & 1989 Supp.).


text:
    PAULINE WONG HUGH et al., Plaintiffs-Appellants, v. AMALGAMATED TRUST AND SAVINGS BANK, as Trustee, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—91—0054
    Opinion filed September 8, 1992.

      Stone, Pogrund, Korey & Spagat, of Chicago (Martin S. Korey and Lawrence J. Stark, of counsel), for appellants.
    Schuyler, Roche & Zwirner, P.C., of Chicago (James D. Adducci, Richard S. Weinberg, and Jeffrey E. Schiller, of counsel), for appellee Chester Sum Wong.
   JUSTICE SCARIANO

delivered the opinion of the court:

On June 3, 1972, defendant Chester Sum Wong (Chester), father of plaintiffs Pauline Wong Hugh (Pauline) and Herman Wong (Herman), entered into an Illinois land trust agreement with Amalgamated Trust and Savings Bank (Amalgamated) whereby Amalgamated became trustee as to five separate parcels of real property. The rental income from these properties was deposited in four bank accounts, one at the First National Bank of Chicago (FNB) and three at Amalgamated. On October 5, 1987, Chester created the Wong Grandchildren Trust for the benefit of his grandchildren, Arnold, Carol and Brenda Wong, wherein Herman was eventually named trustee; and on October 7, 1987, Chester executed and delivered to plaintiffs five letters of direction instructing Amalgamated as trustee to issue deeds to four of the properties to the Wong Grandchildren Trust, and to deed the remaining parcel to Pauline. As of January 16, 1990, the letters of direction had not been presented to Amalgamated, nor is there any indication in the record that Amalgamated had any knowledge of the existence of such letters. On that date, however, Chester wrote the following letter to Amalgamated:

“Gentlemen:
From time to time in the past I have been asked to sign certain amendments to the above land trust and assignments of the beneficial interest therein. I hereby revoke any and all such documents which I have signed; and I direct you, as Trustee, not to accept any such documents dated before this date.”

On March 27, 1990, the letters of direction were presented to Amalgamated, but it refused to issue the deeds.

In the verified complaint at issue in this appeal, plaintiffs Pauline individually and Herman in his capacity as trustee alleged that Betty Wong, Herman’s wife and a co-signatory with Chester on the three bank accounts in Chester’s name at Amalgamated (but not on the account at FNB also in his name), had managed the properties at all times after the issuance of the letters of direction. Specifically, they alleged that Betty collected and deposited the rental income from the properties, paid utilities, taxes and insurance premiums, and hired contractors to do repair work on the properties. They acknowledged, however, that Chester retained access to all bank accounts relating to the properties. They further alleged that the rental income from the properties “was used primarily by Chester Sum Wong, to pay the school tuition of his grandchildren *** and was also used to maintain the [Real] Property.”

The complaint sought several types of relief: (1) a declaration that plaintiffs were the owners of the properties, and were entitled to the rental income which had accrued therefrom, since October 7, 1987; (2) an order to Amalgamated to issue trustee’s deeds to plaintiffs; (3) an injunction against Amalgamated prohibiting it from encumbering or conveying the properties, and against FNB prohibiting it from releasing any funds related to the properties without express order of court; and (4) an award of reasonable attorney fees.

On October 4, 1990, the parties entered into an agreed order pursuant to which the properties and the income they produced would be managed and accounted for pendente lite. On November 9, 1990, pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), Chester filed a motion to dismiss the complaint with prejudice, claiming that he had not relinquished all present and future power and dominion over the properties. During the hearing on the motion to dismiss, Chester was given leave of court to convert it from one brought under section 2 — 615 into one brought under section 2 — 619. Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 615, 2 — 619.

On December 21, 1990, the trial court dismissed the complaint with prejudice, holding from the bench that “no gift was executed or completed, if you will, whatsoever, of the interest. It could not be until such time as the trustee received the document and proceeded thereon; *** it seems to me when a person deposits a power of direction, that is a revocable instrument until it’s delivered,” and here there was nothing “delivered to the trustee until after there had been *** a cancellation of the documents.” On January 2, 1991, plaintiffs filed their notice of appeal.

It is well-established law that “[a] gift is a voluntary, gratuitous transfer of property by one to another where the donor manifests an intent to make such a gift and absolutely and irrevocably delivers the property to the donee. [Citation.] Moreover to prove a gift it must be shown that the donor has relinquished all present and future dominion and power over the subject matter of the gift. [Citation.]” (In re Marriage of Cook (1983), 117 Ill. App. 3d 844, 849; see also Pocius v. Fleck (1958), 13 Ill. 2d 420.) Plaintiffs urge that by executing and delivering the five letters of direction, which specifically commanded that the trustee deed a 100% undivided interest in each property, Chester adequately met the requirements necessary to establish an irrevocable gift.

A

The parties do not dispute that Chester did manifest the intent to make a gift of the properties at issue here. Plaintiffs assert, however, that Chester’s delivery of the letters of direction to plaintiffs constituted a completed gift of the properties referred to therein; that by placing those letters in their hands, he had delivered “the only means by which they could obtain Trustee’s deeds” to the properties, and that he could do nothing more to convey his interest. The trial court rejected this argument, however, concluding that unlike an assignment of a beneficial interest which “is a current conveyance instrument,” a letter of direction “directs somebody else to convey the instrument; convey it when, we don’t know. *** The quality of a direction is a direction for someone else to act. An assignment of a beneficial interest represents a conveyance of an interest in and of itself.” Consequently, the trial court held that Chester retained the power to withdraw these letters of direction, since plaintiffs had not yet acted upon them.

Plaintiffs further aver that their complaint alleges sufficient facts to show that Chester parted with exclusive dominion and control over the subject of the gift, viz., the realty. They argue that in order to part with dominion and control of real estate, which is fundamentally the subject of the gift here, a donee need only manage, preserve and improve the properties to the exclusion of the donor, citing People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479. They point out that their complaint also sets forth that Betty Wong, a co-signatory with Chester on the three bank accounts at Amalgamated, had managed the properties at all times after the issuance of the letters of direction, and that Betty collected and deposited the rental income from the properties, paid utilities, taxes and insurance premiums, and hired contractors to do repair work on the properties. Plaintiffs further argue that Chester did nothing with respect to the properties except that he had access to the rental income they generated, and that gifts of principal are not invalidated where the donor reserves a right to the income generated therefrom. (Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 363, distinguishing In re Estate of Morys (1973), 17 Ill. App. 3d 6.) Plaintiffs also claim Betty Wong was their agent, although they fail to plead any facts which suggest this relationship; rather, from the facts pleaded, she appears to have been Chester’s agent, since she acted on his behalf as owner of the properties and the person ultimately responsible for them.

Chester relies mainly on In re Estate of Morys to support his position that he did not part with exclusive dominion and control over the subject of the gift. In that case, Mrs. Morys purported to assign the beneficial interest in a land trust to Ms. Dopak, and although Ms. Dopak collected the rents on the property, she deposited them in a bank account in Mrs. Morys’ name. The court held that no inter vivos gift resulted because Ms. Dopak “collect[ed] the rents and deposited] them in Mrs. Morys’ bank account.” (Morys, 17 Ill. App. 3d at 10.) Chester points out that Betty deposited the rents collected from the properties in bank accounts in his name and on which he was a signatory. While paragraph 17 of the complaint alleges that “at all relevant times prior to October 5, 1987, and thereafter, the rental income from the Properties” was used by Chester to pay the school tuition of his grandchildren and to maintain the properties, Chester contends that merely because Betty assumed the day-to-day management of the properties does not suggest, in and of itself, that he relinquished all present and future power over the properties, inasmuch as she continued to treat them as though they belonged to Chester.

Plaintiffs claim that Morys is factually distinguishable, in that the parties were unrelated in Morys, but here, the parties are parent and child, and a transfer from parent to child and/or grandchild is presumed to be a gift (Nordlund v. Nordlund (1983), 116 Ill. App. 3d 223). Chester responds that while it is true that in Nordlund the court recognized the presumption that a parent’s placing title in a child is a gift, here he placed title only in the trustee of the grandchildren’s trust, and not in the grandchildren themselves.

We find plaintiffs’ reliance on Chicago Title & Trust to be unwarranted, since it does not reach the holding they ascribe to it, but addresses instead the issue of who is the “owner” of a parcel of property held in a land trust for the purpose of fixing property tax liability only, the tax having been imposed by statute on the “owner” of the realty. Rather, we agree with Chester that he did not part with exclusive dominion and control over the subject of the gift; nor does he appear to have been barred or deprived from exercising any of the attributes of ownership at all by anyone. Plaintiffs’ attempt to distinguish Morys on the basis of its facts is also unconvincing.

In an Illinois land trust the legal and equitable title to the res lies with the trustee, and the beneficiary retains what is referred to as a personal property interest. (Chicago Federal Savings & Loan Association v. Cacciatore (1962), 25 Ill. 2d 535, 543.) It is important to note, however, that though referred to as personal property, most of the usual attributes of real property ownership are retained by the beneficiary under the trust agreement. (Chicago Title & Trust, 75 Ill. 2d at 488.) In fact, the beneficiary retains absolute control of the management and receives all of the proceeds generated by the property, and the trustee may not act except on written authorization of whoever may be designated in the trust agreement as having such “power of direction,” who is almost invariably also the beneficiary, as is the case here.

For more than two years after Chester had delivered the letters of direction to plaintiffs, he continued to manage and control the properties at issue here not only by virtue of his being the beneficiary of, and his holding of the power of direction over, the res of the trust, but also, according to the record, because he continued to be responsible for paying the real estate taxes on these properties, since they were still in his name and the tax bills were addressed to him. He also continued to be liable for the payment of the electric bills and the insurance premiums, both of which remained in his name. Chester at all times also maintained control over the funds necessary to pay these bills, including charges for maintenance and repairs, and the funds were generated by the properties.

Indeed, the record plainly shows that plaintiffs failed to take the single remaining step essential to the transfer of the emblems of ownership of the property from Chester to themselves until they presented the letters of direction to the trustee on March 27, 1990, some 29 months after Chester had delivered them to plaintiffs. However, it is important to note:

“To constitute a good gift it is not necessary that the donor directly transmit the property in question to the donee, but such delivery may be made intermediately through the agency of a third person. Where such third person consummates the transaction by delivery to the donee prior to an express or an implied revocation of his authority, then, of course, by the ordinary principles of agency the gift is complete. Serious questions, however, arise when no such delivery by the third person has taken place, though even here it is not the principles of law but their application that causes the difficulty. If the third person be the agent, bailee, or trustee of the donor, then the gift must fail for lack of a complete delivery, for in such case the donor retains by means of his control over the agent, dominion and control over the subject matter of the gift.” (Emphasis added.) (R. Brown, The Law of Personal Property §7.4, at 87 (3d ed. 1975).)

We therefore direct our attention to the question of whether Chester actually revoked his gift.

B

That issue turns on an interpretation of Chester’s January 16, 1990, letter to Amalgamated, which, because we find it to be unambiguous, presents only a question of law. (Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 732.) Chester contends that this instrument expresses his intention to revoke the letters of direction given to plaintiffs. Indeed, relying on this letter, the trial court held that he had revoked the letters of direction. We disagree with both Chester’s contention and the trial court’s holding that there was a “cancellation of the documents,” since by the clear language of the letter itself, only “amendments to the *** land trust” and “assignments of the beneficial interest therein” are revoked; nothing is said about directions to make an outright conveyance of the properties, which would have taken them out of the trust and placed title in plaintiffs.

In his brief Chester avers that he had written “the trustee of the land trust and instructed it to disregard the letters of direction.” At oral argument before this court, however, he acknowledged, as he must, that the January 16, 1990, letter did not mention letters of direction. Rather, he claimed that its phrase “such documents” embraces a direction to convey inasmuch as a direction is “alike, similar, or of the like kind” as an assignment or amendment. We cannot give Chester’s letter such an expansive interpretation. Chester appears to be invoking the ancient common law rule of ejusdem generis, employed in the construction of statutes, wills, contracts and other written instruments, viz., that “[w]hen general words or phrases follow a set of enumerated things, *** the general word is limited in meaning to the same kind or class as those previously enumerated.” (People ex rel. Fahner v. Hedrick (1982), 108 Ill. App. 3d 83, 96, citing Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 436.) We have no such situation here, for the instrument at issue contains a clear and unmistakable enumeration of only two items that, though specific in character, are not sufficiently similar to belong to one identifiable class. In the case at bar it cannot be successfully argued that “amendments to the *** land trust” and “assignments of the beneficial interest therein” constitute an enumeration of terms that, though specific in character, are sufficiently similar to belong to a single identifiable class.

Accordingly, Chester’s ejusdem generis argument must be rejected, and we therefore hold that he failed to revoke the direction to convey given to plaintiffs by virtue of the letter of January 16, 1990. For all of the above reasons, we reverse and remand this cause for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

HARTMAN, P.J., and McCORMICK, J., concur.


author: JUSTICE TULLY

text:
    DENNIS HARRIS, Plaintiff-Appellant, v. CHICAGO HOUSING AUTHORITY, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—2146
    Opinion filed September 9, 1992.
    Rehearing denied October 26, 1992.
    Steven B. Salk, of Steven B. Salk & Associates, of Chicago, for appellant.
    Johnson & Bell, Ltd., of Chicago (H. Patrick Morris and Robert M. Burke, of counsel), for appellee.
   JUSTICE TULLY

delivered the opinion of the court:

This case addresses the scope and application of the “fireman’s rule” in Illinois. Plaintiff, Dennis Harris, filed a one-count complaint against defendant, the Chicago Housing Authority, for personal injuries sustained while responding to a fire at a building owned and operated by the defendant. The circuit court dismissed the complaint, finding that the cause of action was barred by the “fireman’s rule.” Plaintiff appeals the dismissal on the premise that the fireman’s rule does not encompass the specific circumstances which caused his injuries.

Plaintiff, Dennis Harris, is a Chicago firefighter. On January 31, 1989, Harris suffered severe and permanent injuries while responding to a fire at the Robert Taylor Homes, a high-rise housing project, owned and operated by defendant. The fire occurred on the fourth-floor level of the building. When plaintiff and other firemen attempted to connect fire hoses to standpipes on the fourth floor, no water pressure was to be found. Similar attempts on other floors also proved to be futile. None of the standpipes functioned properly, so as to produce any water.

Plaintiff alleged in his original complaint that defendant failed to maintain its property in a reasonably safe condition by failing to provide functional standpipes and failing to inspect such standpipes. Defendant then filed a motion to dismiss, alleging that plaintiff had failed to plead sufficient facts demonstrating how the lack of functional standpipes directly caused plaintiff’s injuries. In response, plaintiff filed a first amended complaint which explained how, as a result of the dysfunctional standpipes, a continuous buildup of heat and gasses produced an explosion, which injured plaintiff where he was working on the fourth floor. The amended complaint also alleged wilful conduct by defendant in failing to provide working standpipes and in violating city ordinances requiring appropriate fire safety equipment.

In its motion to dismiss, defendant also argued that the “fireman’s rule” barred any cause of action by the plaintiff fireman. Following a hearing on the motion, the trial judge, the Honorable Dean J. Sodaro, relying upon the case of Washington v. Atlantic Richfield Co. (1977), 66 Ill. 2d 103, 361 N.E.2d 282, granted defendant’s motion and dismissed the amended complaint. The trial court reasoned that under the “fireman’s rule” a fireman can only recover where his injuries are caused by an act of negligence which is independent of the negligence which caused the fire itself. Judge Sodaro stated that the “explosion” was a “natural consequence of the fire itself” and not the result of an independent act of negligence. Judge Sodaro hypothesized that plaintiff would have had a cause of action, if, for example, a wall or stairwell had collapsed on plaintiff during the fire or if the standpipes had fallen on plaintiff because they had been negligently maintained by the property owner.

Plaintiff appeals this decision, arguing that the failure of defendant to maintain operable standpipes was an act of negligence, independent of whatever negligence caused the fire. Further, plaintiff argues that this independent act of negligence produced an explosion and since it was this explosion which injured plaintiff, as opposed to the fire itself, defendant may be held liable.

In considering the trial court’s dismissal of a complaint, the standard of review is de novo. We must determine whether the complaint, when viewed in a light most favorable to the plaintiff, alleges facts sufficient to establish a cause of action for which relief may be granted and all well-pleaded facts must be accepted as true. Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 359 N.E.2d 113.

The seminal Illinois Supreme Court case on this issue is Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881. In Dini, a fireman was injured in a hotel fire, wherein there were multiple municipal code violations, including the absence of fire extinguishers and fire doors. In addition, a stairway, which collapsed on the plaintiff, was found-to be negligently constructed. Benzene was later found stored in close proximity to the stairwell, which may have also caused the stairwell to collapse on the plaintiff. The trial court entered a judgment for the defendant hotel, notwithstanding the jury’s verdict awarding damages to the fireman. The Illinois Supreme Court reversed, finding that there was sufficient evidence to show that defendant had violated fire equipment ordinances and that these violations proximately caused the injuries of the plaintiff fireman. The court quoted from another case:

“ ‘[W]e have in this case a direct violation of ordinances which were enacted for the benefit of fireman as well as guests in the hotels; at least firemen entering into the premises had a right to assume that the law in this particular had been complied with.’ ” Dini, 20 Ill. 2d at 420, 170 N.E.2d at 887, quoting Maloney v. Hearst Hotels Corp. (1937), 274 N.Y. 106, 107, 8 N.E.2d 296, 297.

The Illinois Supreme Court reexamined and more precisely defined the “fireman’s rule” 17 years later in Washington v. Atlantic Richfield Co. (1977), 66 Ill. 2d 103, 361 N.E.2d 282, wherein the court stated:

“We therefore hold that while a landowner owes a duty of reasonable care to maintain his property so as to prevent injury occurring to a fireman from a cause independent of the fire he is not liable for negligence in causing the fire itself.” Washington, 66 Ill. 2d at 108, 361 N.E.2d at 285.

Both Justices Clark and Dooley dissented from the majority opinion, wherein the supreme court held that firemen could not hold a gas station owner liable for his negligent acts which caused the fire. The complaint alleged that defendant maintained a defective gas pump, which overflowed beneath a customer’s car. The customer then discarded a match which caused the fire. The fire spread to the car, causing more gas to spill out of the car’s tank. The station attendant put the tank cap back on and when plaintiff arrived to fight the fire, he removed the cap to relieve pressure in the tank in order to avoid an explosion. Flaming gasoline blew out of the tank, injuring plaintiff.

The court found that although the negligent acts of the defendant — a faulty pump and allowing a customer to smoke — were also violations of ordinances, these were acts of negligence which related to the cause of the fire. They were not independent acts of negligence sufficient to impose liability on the station owner.

The original doctrine of the Dini case was further eroded in later cases such as Coglianese v. Mark Twain Limited Partnership (1988), 171 Ill. App. 3d 1, 525 N.E.2d 1031, where the plaintiff fireman died in a hotel fire. The complaint alleged violations of fire ordinances, in that the walls were not fire resistant and were combustible. During the fire, the walls burned rapidly, producing great volumes of black smoke and soot. The court upheld the dismissal of plaintiff’s complaint stating that the smoke and noxious gasses only contributed to the severity of the fire, that this was not an undue risk beyond that associated with fighting a fire and that a fireman would reasonably anticipate it in performing his duties. The plaintiff’s complaint also failed to show how the condition of the hotel walls caused the plaintiff’s death, in a way which was independent of the fire itself. In addition, the court found that the significant link between the acts of negligence and the injury was missing.

The key issue in the case before us is whether the explosion which injured the plaintiff fireman was an inherent risk assumed by the plaintiff upon entering defendant’s premises or whether it can be attributed to an independent act of negligence by defendant, such as failing to inspect and maintain operable standpipes in accordance with fire safety regulations. The literal definition of an explosion is as follows:

“[A] violent expansion or bursting that is accompanied by noise and is caused by a sudden release of energy from a very rapid chemical reaction *** or from an escape of gases or vapors under pressure (as in [the disruption of] a steam boiler) ***.” Webster’s Third New International Dictionary 802 (1976).

Explosions are not normally equated with a fire although they do occur. The additional element in this case is the lack of water, which is another force or agency which a fireman would reasonably expect to be available. No fireman would be expected to fight a fire without water. This is a plain and simple axiom. Because of the lack of water, certain gasses or fumes were put into the process of compression and resultant expansion which engendered an explosion. This brings this case within the purview of Dini and perhaps expands the concept by introducing a force set into motion by defendant’s negligence in failing to maintain operable standpipes. The Dini case deals with a direct, independent act of negligence: maintaining an inadequate stairwell which collapsed during the fire. This case involves an explosion which is not so intricately connected with a conflagration so as to make an explosion part and parcel to each and every fire. This court construes an explosion to be an extra intervening force set into motion by defendant’s negligence, perhaps somewhat analogous to the stairwell in Dini.

Rhetorically, who is to say why the stairwell in Dini collapsed, whether it was from the heat of the fire, the burning of the stairway supports or simply rot and decay? It is also significant that in Dini, as in the instant case, the defendant landowners were in violation of several municipal fire safety ordinances such as failing to provide fire doors and fire extinguishers and allowing the accumulation of trash and litter in the building’s corridors.

In this case, the defendant, the Chicago Housing Authority, is a municipal corporation, which allegedly acted in violation of a municipal ordinance by failing to maintain an operable water standpipe system. We hold that, if proven, this is an act of negligence, independent of any negligence which caused the fire. Thus, plaintiff’s complaint sufficiently states a cause of action against defendant, although plaintiff must still prove the remaining elements of causation and damages. Too strict a construction of the “fireman’s rule” in this case would invite municipal corporations to flagrantly violate public safety ordinances. Although defendant has correctly stated on appeal that it is exempt from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.), plaintiff’s amended complaint sufficiently alleges wilful and wanton conduct, which would not be immune from liability.

This case is remanded to the circuit court of Cook County for further proceedings consistent with this opinion.

Reversed and remanded.

GREIMAN, P.J., and CERDA, J., concur.