author: PRESIDING JUSTICE McNULTY

text:
    DANIEL P. O’BRIEN, Plaintiff-Appellee, v. VICTOR CACCIATORE, Defendant-Appellant.
    First District (5th Division)
    No. 1—90—0605
    Opinion filed March 27, 1992.

      James P. Chapman and Alan Mills, both of James P. Chapman & Associates, Ltd., of Chicago, for appellant.
    Martin J. Healy, Jr., and Pope & John, Ltd., both of Chicago (William R. Quinlan, of counsel), for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

This is an appeal from a judgment granting specific performance of a real estate contract. Defendant asserts on appeal that: (1) the parties were engaged in a joint venture and thus owed one another a fiduciary duty; (2) the trial court improperly excluded evidence relating to plaintiff’s misrepresentations; (3) plaintiff is barred from obtaining specific performance because he comes to the court with unclean hands; and (4) if the court should affirm the trial court’s judgment, then defendant is entitled to the interest and taxes he paid between the contract date and the closing date. Plaintiff contends that the trial court need not even consider these arguments because defendant’s appeal is moot.

Sometime in 1985, plaintiff Daniel P. O’Brien became aware of the property located at 301-313 West North Avenue, Chicago, Illinois. In December 1985, plaintiff made an offer to purchase the property for $460,000 and the owner accepted.

Before closing the transaction, plaintiff invited Edward Kelly to join him in the purchase of the property. Kelly, in turn, involved defendant Victor Cacciatore in the acquisition. They agreed to acquire the property for purposes of investment and speculation and had no set plans for development of the property.

Defendant arranged 100% financing from the Lake View Bank for the acquisition of the property. Plaintiff, defendant and Kelly each agreed to be responsible for one-third of the principal amount of the loan.

Defendant also represented plaintiff, Kelly and himself in the acquisition as the attorney. Title to the property was taken in a land trust at the Lakeside Bank under trust No. 10 — 1123. The beneficial interest of that trust was held by 301-313 West North Avenue Corporation (301 Corp.) and defendant held 100% of the shares. The 301 Corp. was to act as agent for the owners of the property.

Several individuals made offers (generally in the area of $750,000) to purchase the property. One of these offers was made by Phillip Farley, a long-time friend of plaintiff. This offer was made in the name of Farley’s nominee, Deluga. The offer was delivered to plaintiff and plaintiff delivered it to defendant and advised Kelly. Plaintiff indicated that the offer was acceptable to him. No contract was ever executed by and between any of the parties in ownership of this property with Phillip Farley or any representative of Phillip Farley for the sum of $750,000 or in any other amount.

Kelly decided to sell his interest in the property to plaintiff based on the figure of $750,000 which was offered by Farley. Plaintiff purchased Kelly’s interest paying to him the sum of $100,000 profit and assuming his obligation for one-third of the loan obtained from the Lake View Bank.

Plaintiff then began to negotiate with defendant to obtain his one-third interest in the property. Plaintiff tendered to defendant a real estate contract dated November 19, 1987, for the purchase of defendant’s interest. In response, defendant prepared a real estate contract dated December 1, 1987, as a counteroffer. Defendant testified that when he signed the contract, he thought he was signing a contract with Farley. The contract did not contain any language that the sale to O’Brien was conditioned upon a sale to Farley or anyone else.

The contract set the closing date at January 18, 1988, and plaintiff took the steps necessary to close on the property. Defendant’s law office prepared all the necessary documentation for defendant to sell his one-third interest. Defendant refused to go ahead with the real estate contract with plaintiff. As a result, plaintiff instituted an action for specific performance against defendant. Plaintiff sought specific performance of the contract, possession of the management books and records, and damages for the wrongful refusal to close the transaction. Defendant asserted his affirmative defense that his refusal to close the transaction with plaintiff was justified because plaintiff breached his fiduciary duty that plaintiff owed defendant as his joint venturer in the transaction. In particular, defendant charged that he agreed to sell his interest in the property to plaintiff only because of plaintiff’s representation that he would immediately sell the property in its entirety to Farley after he received the interests of his co-venturers.

After a bench trial on the merits, the trial court concluded that the evidence failed to establish the existence of a joint venture amongst plaintiff, Kelly and defendant, and since there was no joint venture, the parties had no fiduciary duty to each other. In addition, the court ruled that evidence relating to negotiations with Farley was inadmissible parol evidence, and because the unambiguous contract contained no condition that the property was subsequently to be sold by plaintiff to Farley, the court concluded that defendant refused to go ahead with the contract simply because he had “a change of heart,” feeling that the property was worth more. The trial court’s November 22, 1989, order, therefore, decreed specific performance, ordering that books, records and management be turned over to plaintiff but denied plaintiff’s claim for money damages.

On December 18, 1989, plaintiff filed an emergency motion with the court to enforce its November 22, 1989, order. The trial court found in plaintiff’s favor and set a closing date for the property. Defendant then filed his notice of appeal on February 27,1990.

Plaintiff filed a second motion to enforce the trial court’s November 22, 1988, order. When plaintiff orally presented his motion on March 8, 1990, the following exchange occurred:

“THE COURT: Counsel, has defendant in this case asked for a stay order from me?
DEFENSE COUNSEL: No. We have not your Honor.
* * *
DEFENSE COUNSEL: I didn’t know if your Honor wanted — if your Honor would entertain such a motion, that would solve all our problems.
THE COURT: Why didn’t somebody make it?
DEFENSE COUNSEL: Then I, with your Honor’s permission, would make an oral motion to stay this.
THE COURT: I’m going to accommodate you, and I’m going to deny it. Now go upstairs and get a stay with your appeal.
* * *
THE COURT: I’m telling you, your oral motion to stay is denied. You will comply with my order unless you get a stay upstairs. Prepare that order.
PLAINTIFF’S COUNSEL: Thank you your Honor.
DEFENSE COUNSEL: Your Honor, in complying with it are we not entitled to the Court’s protection that by complying with your Honor’s order we are not mooting our appeal rights? That’s all that we are asking. We’re ready to close and comply with your Honor’s order.
THE COURT: Upstairs. I have ruled on this case. I have tried it, and I have nothing but motion after motion. Now, I’m staying — I’m not going to stay it. Take it upstairs. Let the Appellate Court make a ruling.
DEFENSE COUNSEL: We’re not asking you to stay it. You have denied it. We want to comply. We simply want to say respectfully — I’m sure attorneys everyday disagree with your Honor’s ruling—
THE COURT: I’m not going to deprive you of your right to appeal. You have that under the law. But I’m not going to give any advisory opinions in this case either. I am not going to enter a stay order. Take it upstairs.”

Defendant never attempted to obtain a stay of the trial court’s judgment from this court nor did he file a notice of appeal from the March 8, 1990, order, nor amend his original notice of appeal in this regard. The parties closed on the transaction in the last week of March 1990.

Before addressing the issues raised by defendant on appeal, we must first answer the motion to dismiss taken with the case. Plaintiff seeks to dismiss defendant’s appeal on the ground that it is moot because defendant accepted the benefits of the trial court’s judgment without attempting to seek a stay from this court to delay the transference of his property interest pending appeal.

It is well established in Illinois that the payment or satisfaction of a money judgment by a judgment debtor does not bar the prosecution of an appeal by such judgment debtor. (Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill. 2d 518, 202 N.E.2d 512.) Plaintiff relies on County v. Malysa (1968), 39 Ill. 2d 376, 235 N.E.2d 598, for the proposition that when one voluntarily pays or accepts the benefits of a judgment, his right to appeal becomes moot. However, Malysa is distinguishable in that there, the court concluded that a condemnor in an eminent domain proceeding who pays a judgment waives his right to appeal. This conclusion was based on the fact that while in an ordinary civil case a judgment debtor does not waive his right to appeal by paying the judgment because payment is considered compulsory, a judgment in an eminent domain proceeding does not impose liability upon the condemnor but merely establishes a value it must pay to acquire title. The court therefore concluded that when a condemnor pays an award he does so voluntarily and therefore waives his right to appeal. Malysa, 39 Ill. 2d at 379, 235 N.E.2d at 601.

It is clear that the defendant’s transfer of the property in the instant case was not voluntary. If defendant had not transferred the property, or obtained a stay, he would have been held in contempt of court. Given the fact defendant’s transfer of the property was not made by way of compromise or associated with an agreement not to pursue an appeal and that he transferred the property so as to avoid being held in contempt of court, it cannot be said that he voluntarily accepted the benefits under the judgment.

Furthermore, in determining whether payment or satisfaction of a judgment is voluntary and renders the right to appeal moot, it is immaterial that defendant failed to avail himself of the opportunity to obtain a stay of execution. (See Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 280 N.E.2d 208 (while posting a bond may be a prerequisite to obtaining a stay of judgment, the right to prosecute an appeal may not be so conditioned).) The failure to obtain a stay pending appeal does not, of itself, render an issue moot. (Schaumburg State Bank v. Seyffert (1979), 71 Ill. App. 3d 630, 390 N.E.2d 388; Surety Development Corp. v. Grevas (1963), 42 Ill. App. 2d 268, 192 N.E.2d 145 (the appeal is not rendered moot by payment since it was plaintiff’s choice either to pay or to seek a stay and the judgment is therefore appealable regardless of the choice so long as it was made in time); but see First Security Bank v. Income Properties, Inc. (Mont. 1984), 675 P.2d 982 (by paying damages or surrendering property due under judgment rather than requesting a stay, defendant effectively acceded to the correctness of that judgment and the appellate court was without power to review cause).) However, when supervening events make it impossible for a reviewing court to grant effective relief to any party, the issue is moot (Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316), since any finding made on the issue would have no practical effect on the controversy. (Betts v. Ray (1982), 104 Ill. App. 3d 168, 432 N.E.2d 1222.) Had plaintiff transferred the property to a third party, this appeal would be moot since the third party would have been protected by Supreme Court Rule 305(i) (73 Ill. 2d R. 305(i)), which provides that, in the absence of a stay within 30 days of entry of judgment, persons not parties to the action who acquire title or interest in the property after the judgment becomes final are not affected by subsequent reversal or modification thereof. The defendant’s appeal here, however, is not moot since the property is still being held by plaintiff. We therefore address defendant’s contentions on appeal.

The first contention raised by defendant is that the trial court erred in holding that plaintiff and defendant were not engaged in a joint venture. A joint venture is an association of two or more persons to carry out a single enterprise for profit. (Electrical Contractors, Inc. v. Goldberg & O'Brien Electric Co. (1975), 29 Ill. App. 3d 819, 331 N.E.2d 238.) A formal agreement is not essential to establish a joint venture. (Barton v. Evanston Hospital (1987), 159 Ill. App. 3d 970, 513 N.E.2d 65.) Rather, the existence of a joint venture may be inferred from the facts and circumstances demonstrating that the parties in fact entered into a joint venture. (Ambuul v. Swanson (1987), 162 Ill. App. 3d 1065, 516 N.E.2d 427.) In determining whether a joint venture exists, the intent of the parties is the most significant element. United Nuclear Corp. v. Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, 441 N.E.2d 1163.

The elements to be considered in determining the parties’ intent are: (1) an express or implied agreement to carry on an enterprise; (2) a manifestation of intent by the parties to be associated as joint venturers; (3) a joint interest as reflected in the contribution of property, finances, effort, skill or knowledge by each party to the joint venture; (4) a measure of proprietorship or joint control of the enterprise; and (5) a provision for the sharing of profits or losses. (Fitchie v. Yurko (1991), 212 Ill. App. 3d 216, 570 N.E.2d 892.) In the absence of any of these elements, there is no joint venture. United Nuclear Corp., 110 Ill. App. 3d 88, 441 N.E.2d 1163.

The burden of proving a joint venture is on the person who claims such a relationship exists. (Barton, 159 Ill. App. 3d 970, 513 N.E.2d 65.) Whether or not a joint venture exists is ordinarily a question of fact for the trier of fact (Baker Farmers Co. v. ASF Corp. (1975), 28 Ill. App. 3d 393, 328 N.E.2d 369), and its decision will not be disturbed unless it is against the manifest weight of the evidence. McCorkle v. Tyler Reporting Co. (1987), 159 Ill. App. 3d 62, 512 N.E.2d 25.

While defendant admits that there was no written agreement establishing the existence of a joint venture, he alleges that the parties entered into a verbal partnership agreement on the day that property was purchased. The trial court determined that no joint venture had been established and that defendant simply refused to go ahead with the sale of the property because he had a change of heart. For the following reasons, we find that the trial court’s determination was not against the manifest weight of the evidence.

The record in the instant case reveals that the parties purchased the property in question “for the purpose of investment and speculation,” and in doing so they agreed to share profits and losses. Their intent being to purchase and sell the subject property, the parties entered into a financial arrangement to secure the property. Their method of securing the property and carrying out the enterprise, however, demonstrates that there was neither an express nor implied agreement to carry on an enterprise nor a manifestation of intent by the parties to be associated as joint venturers. While defendant contends that he entered into a verbal partnership agreement with plaintiff, he admits that the parties never discussed the length of the joint partnership agreement or the responsibilities of the parties in carrying out the joint venture. Defendant also admits that the parties did not appoint themselves to positions within the alleged venture. In McCorkle (159 Ill. App. 3d at 69), the court stated:

“[W]e find that there apparently never was any agreement on several vital terms of their alleged partnership agreement, including *** the scope of Tyler’s operations and the duration of the purported partnership. The absence of a meeting of the minds relating to such critical terms leads irresistibly to the conclusion that the parties did not have the intent necessary to create a partnership.”

Likewise, in the case at bar, there was no meeting of the minds indicating that a joint venture was intended. (See Electrical Contractors, Inc., 29 Ill. App. 3d 819, 331 N.E.2d 238.) Moreover, while a written agreement is not necessary to prove the existence of a joint venture, we do note that absolutely no documents were procured at any time throughout the parties’ ownership of the property that would indicate that the parties had entered a joint venture. We find particularly significant the fact that the parties never filed partnership income tax returns. Seidmon v. Harris (1988), 172 Ill. App. 3d 352, 526 N.E.2d 543.

Also indicative of the fact that the parties did not intend the purchase of the property to be a joint venture is the fact that the parties signed a note which provided for individual liability and not joint liability to the lender. That the parties were only liable for one-third of the indebtedness and not the total debt is in contradiction of partnership law, which states that all partners or joint venturers are liable jointly for all debts and obligations of the partnership or venture. (See Ill. Rev. Stat. 1987, ch. 10672, par. 15(b).) Also in contradiction to section 15(b) is the fact that when defendant represented the parties in the acquisition of the property, he billed plaintiff and Kelly separately for the services rendered by his law office.

Accordingly, the above-mentioned facts reveal that the trial court’s finding that the parties never intended to enter into a joint venture was not against the manifest weight of the evidence. In light of our determination that no joint venture exists, we need not address defendant’s contention that plaintiff breached his fiduciary duty to defendant.

The next contention advanced by defendant is that the trial court improperly excluded, under the parol evidence rule, testimony relating to plaintiff’s alleged fraudulent misrepresentations regarding the sale of the property to Farley. For the following reasons, defendant’s argument is unpersuasive.

Under the parol evidence rule, evidence of prior oral agreements must be excluded if it is offered to vary, alter or contradict a written agreement which is complete, unambiguous, valid and unaffected by fraud, duress, mistake or illegality. (World Insurance Co. v. Smith (1975), 28 Ill. App. 3d 1022, 329 N.E.2d 518.) An exception to the parol evidence rule provides that extrinsic evidence of the parties’ intentions may be introduced to prove mutual mistake, conditional delivery, a lack of consideration or fraud. (Main Bank v. Baker (1980), 88 Ill. App. 3d 28, 410 N.E.2d 681.) Here, although defendant relies on the fraud exception to the parol evidence rule, he has not directed us to the specific portion of the record where the trial court applied the parol evidence rule. A reviewing court is entitled to have the issues clearly defined, and it is not the duty of the trial court to support vague and general contentions of error made by the appellant. (Evink v. Pekin Insurance Co. (1984), 122 Ill. App. 3d 246, 460 N.E.2d 1211.) Furthermore, defendant, in his affirmative defenses, never alleged fraud, duress, mistake or illegality as a grounds for refusing to perform the contract. In any event, defendant’s theory of fraud is unpersuasive. Defendant signed a contract to sell his interest in the real estate to plaintiff and this contract was drafted by defendant, who is an attorney. While defendant alleges that he only signed the contract because he thought that plaintiff was going to then sell the property to Farley, the contract makes no reference to the conveyance to Farley. It is also clear that although plaintiff did intend to sell the property to Farley, at the time plaintiff entered into the contract with defendant, plaintiff never stated that he had a written contact with Farley.

Defendant next contends that plaintiff is barred from obtaining specific performance because he comes to the court with unclean hands. This contention is also without merit.

The doctrine of unclean hands precludes a party who has been guilty of misconduct, fraud or bad faith, connected to the matter in the litigation, from receiving any relief from a court of equity. (Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 369 N.E.2d 498.) In Kukulski v. Bolda (1953), 2 Ill. 2d 11, 116 N.E.2d 384, cited by defendant, the court found that plaintiff could not obtain specific performance of the contract because plaintiff was aware that defendant was too intoxicated to comprehend the nature of the transaction when the contract was executed. Here, there is no evidence that plaintiff took unfair advantage of defendant or that defendant was unable to comprehend the nature of the transaction. Defendant was a real estate lawyer and the one who prepared the real estate contract which the parties executed. In addition, according to defendant’s testimony at trial, plaintiff never told defendant that he was not going to sell the property to Farley. Neither plaintiff nor Farley ever told defendant that they had a written contract for the purchase of the property. We therefore find no merit to defendant’s contention that plaintiff failed to disclose all the material facts related to the sale of the property to Farley and do not find that plaintiff is barred from obtaining specific performance because of unclean hands.

Lastly, defendant maintains that the trial court erred in refusing to allow him credit for the interest he paid on the loan and the real estate taxes he paid between the closing date in the contract and the actual closing. In Lidikevicz v. Kopala (1925), 315 Ill. 404, 146 N.E. 461, plaintiff, vendee, sued for specific performance after defendant, vendor, refused to perform on an agreement entered into for the sale of real estate. The supreme court found that while specific performance was proper, defendant was entitled to credit for the repairs and improvements made to the property which had been completed after the closing date, the insurance premiums and property taxes defendant paid for the interim period and for payments or principal and interest paid on the mortgage.

However, the supreme court in Krabbenhoft v. Gossau (1929), 337 Ill. 396, 169 N.E. 258, distinguished Lidikevicz on the basis that in that case, the property was improved and the decree held that the plaintiff was entitled to all rents from the date the deed would have been received had the defendant lived up to his part of the contract. Having received the benefits, the Lidikevicz court found it equitable that the plaintiff assume the burdens. The plaintiffs in Krabbenhoft, however, received nothing by way of benefits and the defendants during all that time had title to and possession of the premises. The court therefore stated:

“It would be a strange doctrine which would compel a court of chancery to hold that the parties kept out of title and possession by the vendors’ default must yet assume the vendor’s obligations during such period.” (Krabbenhoft, 337 Ill. at 412, 169 N.E. at 264.)

The instant case is also distinguishable from Lidikevicz in that plaintiff did not receive benefits from the property to be acquired during the time defendant wrongfully withheld the property. Defendant had possession of the property, his company was a tenant on the property and he refused to relinquish management of the property. Defendant also received income from the property. Accordingly, he should be held accountable for sustaining the property while he had managed and enjoyed the property.

For the reasons set forth above, the judgment of the trial court is affirmed.

Affirmed.

MURRAY and GORDON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LORENZ

license: Public Domain

text:
    STEPHEN A. SPARROW et al, Plaintiffs-Appellants, v. TALMAN HOME FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—1755
    Opinion filed March 27, 1992.

      Egan & Trapp, of Chicago, for appellants.
    Baker & McKenzie, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Stephen A. Sparrow, suffered personal injuries after falling through drywall in the attic of defendant’s converted garage. On the opening day of trial, plaintiff filed an emergency motion for leave to file a fifth-amended complaint adding a count under the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). The trial court denied the motion. After plaintiff presented his case based on a negligence theory, the trial court entered a directed verdict in favor of defendant. The court found that the danger presented by the drywall was open and obvious and, therefore, defendant did not owe plaintiff a legal duty. Plaintiff appealed. We consider: (1) whether the trial court, on the opening day of trial, abused its discretion denying plaintiff’s emergency motion for leave to file a fifth-amended complaint adding a count under the Structural Work Act; and (2) whether the trial court properly entered a directed verdict in favor of defendant.

We affirm.

Relevant to our disposition are the following facts as disclosed by the record. On August 18, 1982, Stephen A. Sparrow (Sparrow) suffered personal injuries after falling through the ceiling of a converted garage located at 1521 Fairfield, Hoffman Estates, Illinois. Sparrow filed suit against Taiman Home Federal Savings & Loan (defendant), owner of the premises. (Although Sparrow’s wife, Marlene, was named in the notice of appeal, her participation in the proceedings is not relevant to our disposition.)

In 1977, Walter Ragnow, as owner of 1521 Fairfield, converted the garage into a bedroom. Prior to the conversion, the attic above the garage had been accessed by a scuttle hole (a framed opening with a trap door). As part of the conversion, Ragnow filled the scuttle hole with a piece of drywall which was plastered over and made part of the bedroom ceiling. Ragnow did not place a piece of plywood over the drywall. The drywall sat SVz inches below the two-by-four support beams in the attic above. Ragnow then installed a disappearing stairwell to provide new access to the attic. The mouth of the stairwell was adjacent to the covered scuttle hole.

Ragnow subsequently defaulted on his mortgage, and Northwest Federal Savings & Loan (Northwest Federal) acquired title to 1521 Fairfield through foreclosure proceedings. Then, on February 19, 1982, defendant acquired title to 1521 Fairfield through a merger with Northwest Federal.

Prior to the day of his injury, Sparrow was employed by Northwest Federal as a real estate manager. On the day of his injury, Sparrow was employed by Taiman Home Mortgage Corporation as a real estate manager. Sparrow’s responsibilities with both employers required that he inspect foreclosed property to determine whether the property needed to be cleaned or repaired. Eventually, the property would be made available to the public for sale.

Defendant, on its part, executed a service agreement with Taiman Home Mortgage Corporation which required that Taiman Home Mortgage Corporation maintain various properties owned by defendant. If repairs or cleaning were required, an independent contractor was hired to perform the work.

On August 18, 1982, the day of his injury, Sparrow went to inspect 1521 Fairfield pursuant to the service agreement with defendant. It was Sparrow’s first visit to 1521 Fairfield. Sparrow was accompanied by John Martz, an independent contractor. Martz often placed bids for the repair work on the foreclosed properties; however, he did not intend to bid for the work at 1521 Fairfield. Both Sparrow and Martz entered the premises, but Martz soon returned to his truck.

Sparrow had in his possession an inspection report for 1521 Fair-field which had been given to him by Dick Bauer, another manager with Taiman Home Mortgage Corporation. The inspection report stated: “attic has quite a bit of debris. Clean out is in order. Folding stairs to attic.” Sparrow located and pulled down the string to the disappearing stairwell. He ascended to the top of the stairs and placed his foot on a two-by-four support beam in the attic. He stood on the support beam, looked around, and saw a volume of debris to his left. He then took two or three steps forward to get a better view of the debris. His foot came into contact with the drywall and his body fell through the drywall to the floor below. As a result of the fall, he broke his leg. Sparrow admitted that the lighting in the attic was sufficient and that he was looking at the drywall when he stepped forward. He did not, however, intentionally step on the drywall. Furthermore, Sparrow knew the difference between plywood and drywall and that drywall could not support his weight.

Sparrow filed his initial complaint in 1983. In 1990, on the opening day of trial, Sparrow filed an emergency motion for leave to file a fifth-amended complaint adding a count under the Structural Work Act. The court denied the motion on two grounds: (1) the attic floor was not used as a “scaffold” or “support” or “device” as those terms are defined in the Act; and (2) the emergency motion unfairly surprised defendant.

After Sparrow presented his case in chief based on a negligence theory, defendant moved for a directed verdict. During the hearing on the motion, defendant argued, in part, that (1) defendant did not know of the existence of the drywall (covered scuttle hole) and, therefore, defendant could not be held liable; and (2) that the danger presented by the drywall was open and obvious to Sparrow and, therefore, defendant did not owe Sparrow a legal duty. The trial court found that the danger was open and obvious and granted the motion on the ground that defendant did not owe Sparrow a legal duty. The court relied on Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465.

Opinion

We first address whether the trial court properly denied Sparrow’s emergency motion for leave to file a fifth-amended complaint adding a count under the Structural Work Act. Because we agree that the emergency motion unfairly surprised defendant, we do not consider whether the attic floor was a “scaffold” or “support” or “device” as those terms are defined under the Act.

Although the Code of Civil Procedure provides that pleadings may be amended at any time prior to trial, it is well settled that parties have no absolute right to amend a complaint; rather, granting or denying a motion for leave to amend a complaint is a matter within the discretion of the trial court, and its decision will not be disturbed on appeal except where there is a clear or manifest abuse of that discretion. Intini v. Schwartz (1979), 78 Ill. App. 3d 575, 397 N.E.2d 84.

Here, the court considered that Sparrow filed his initial complaint in 1983. Sparrow subsequently filed four amended complaints (dated December 13, 1983; March 13, 1984; August 15, 1984; and October 2, 1986), each alleging damages under a negligence theory. Then, seven years after filing the initial complaint and on the opening day of trial (January 3, 1990), Sparrow filed an emergency motion for leave to file a fifth-amended complaint adding a count under the Structural Work Act. The trial court noted that Sparrow’s counsel was fully aware of the facts in the case for over seven years. The trial court also noted that a claim under the Structural Work Act, unlike a claim under a negligence theory, did not permit consideration of Sparrow’s negligence. In light of these considerations, the court ruled that the emergency motion constituted unfair surprise to defendant.

We note that other courts have held that similar motions to amend complaints constituted unfair surprise to the opposing party. In particular, Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 335 N.E.2d 10, held that a complaint amended on the opening day of trial adding a count under the Structural Work Act constituted unfair surprise to the defendant. Accordingly, we hold that the trial court here did not abuse its discretion denying Sparrow’s emergency motion for leave to file his fifth-amended complaint.

We next consider whether the trial court properly directed a verdict in favor of defendant. The trial court relied on Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, and held that, where the danger was open and obvious, defendant did not owe Sparrow a legal duty. However, we believe that the Illinois Supreme Court opinion in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223, requires that we reverse the trial court on the specific issue of whether a legal duty existed.

It is well settled that whether a legal duty exists in a particular case is a question of law to be determined by the court. (Ward, 136 Ill. 2d 132, 554 N.E.2d 223.) It is also true that Genaust established a common law principle that an owner or occupier did not have a legal duty to warn entrants on his premises of a danger which was open and obvious. (Genaust, 62 Ill. 2d 456, 343 N.E.2d 465.) However, Ward, which was issued before the trial court below disposed of Sparrow’s post-trial motion, established:

“[T]o the extent that the rule may have held that the duty of reasonable care owed by an owner or occupier to those lawfully on his premises does not under any circumstances extend to conditions which are known or obvious to such entrants, that rule is not the law in this State.” (Emphasis in original.) (Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229.)

Instead, Ward provides that an owner’s duty toward entrants on his property is always that of reasonable care, and the issue in cases involving conditions that are open and obvious is whether the condition is within the scope of the duty of reasonable care. (Ward, 136 Ill. 2d 132, 554 N.E.2d 223.) Accordingly, a court must determine whether a defendant in the exercise of reasonable care could anticipate that the plaintiff would fail to notice the condition, appreciate the risk, and avoid it. (Ward, 136 Ill. 2d 132, 554 N.E.2d 223, citing Keeton, Personal Injuries Resulting from Open and Obvious Conditions, 100 U. Pa. L. Rev. 629 (1952).) Furthermore, regardless of the presence of an open and obvious danger, a court must assess the scope of the defendant’s duty in accordance with the following traditional factors: the reasonable foreseeability of injury; the likelihood of and the possible serious nature of an injury; the magnitude of the burden guarding against an injury; and the consequences of placing that burden on the defendant. (Ward, 136 Ill. 2d 132, 554 N.E.2d 223, citing Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.) Finally, the scope of the duty of reasonable care is not defined by reference to the plaintiff’s negligence; the focus must be on the defendant. Ward, 136 Ill. 2d 132, 554 N.E.2d 223.

Here, the trial court found that the danger presented by the drywall was open and obvious to Sparrow. We will not disturb that finding. Therefore, we must determine whether defendant’s general duty of reasonable care under the circumstances extended to the risks associated with the drywall. We must determine whether, in the exercise of reasonable care, defendant should have anticipated that Sparrow would fail to notice the drywall, appreciate the risk, and avoid it. Several facts weigh against such a determination: Sparrow admitted that he was looking at the drywall when he stepped forward; Sparrow admitted that he understood the drywall could not support his weight; Sparrow had inspected other attics in the past; and it was precisely Sparrow’s professional responsibility to determine whether a condition, like the condition presented by the drywall, needed repair.

However, we believe that an application of Ward and its progeny nonetheless requires us to hold that a legal duty existed under the circumstances in this case. For example, in American National Bank & Trust Co. v. National Advertising Co. (1990), 205 Ill. App. 3d 348, 562 N.E.2d 1057, a painter was killed when his head struck a power line which was suspended above a billboard he was working on. The decedent was traversing from a walk rail on the billboard to a ladder when he struck the power line with his head. The court noted that the decedent had become distracted by the necessity of care for his footing on the boards of the walk rail. Finally, the decedent was a professional who was responsible for understanding the dangers which were part of his work. The court, nonetheless, determined that the defendant owed the decedent a legal duty. Here, the drywall was located directly in front of the mouth of the stairwell and Sparrow was in the act of traversing the drywall when he fell through. We note further that it was necessary for Sparrow to take care of his footing on the two-by-four support beams in the attic. Whether or not this actually distracted Sparrow, we believe that defendant could have anticipated that Sparrow might fail to avoid the drywall. Finally, Sparrow’s professional responsibilities, like the decedent’s responsibilities in American National, do not prevent us from determining that defendant owed Sparrow a legal duty.

We also must assess the scope of defendant’s duty in accordance with the traditional factors. Ward provides us guidance in this regard. There, the plaintiff, while carrying a large, bulky mirror, suffered injuries after colliding with a cement post located outside the exit of defendant’s store. The court considered that the plaintiff’s collision with the post was reasonably foreseeable; the plaintiff’s injury was the likely result of a collision with the post; and the burden of protecting against the danger would have been slight (a simple warning or relocation of the post would have sufficed). Similarly, here, Sparrow’s failure to avoid the drywall was reasonably foreseeable; Sparrow’s broken leg was the likely result of a fall through the drywall; and the burden of protecting against the danger would have been slight (the placement of a piece of plywood over the drywall would have sufficed).

In sum, we hold that the trial court erred in applying Genaust to determine whether a legal duty existed. Instead, according to Ward and its progeny we hold that, under the circumstances presented, defendant did owe Sparrow a legal duty.

Notwithstanding the existence of a legal duty, however, we hold that the trial court properly entered the directed verdict in favor of defendant. We base this decision on section 343(a) of the Restatement (Second) of Torts, which is addressed “to the more general question of liability, and not specifically to the existence of a duty.” (Ward, 136 Ill.2d at 151, 554 N.E.2d at 232.) Section 343(a) provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees.” (Restatement (Second) of Torts §343(a) (1965).)

We note that defendant made the corresponding argument during the hearing on the motion for directed verdict. Defendant also elicited testimony at trial which supports its argument. For example, the following exchange occurred between defense counsel and plaintiff’s expert, who at plaintiff’s request made a thorough study of the evidence in this case:

“Q. If I understand you correctly, there are two things you claim that [defendant] should have done. That is to go out there or to recognize that there was this hole and put something over it?
A. True.
Q. Is it your understanding, sir, that the only people who were at this property prior to the date of Mr. Sparrow’s accident were Mr. Sparrow and Mr. Bauer?
A. That I know of, true.
Q. They both worked for the mortgage company?
A. And that is true.
Q. To the best of your knowledge, no one from [defendant] was ever out to this property before the day of the accident?
A. I have no indication of that.
* * *
Q. Insofar as the condition of the premises, is it fair to say that any information that [defendant] had about the property would come through either Mr. Sparrow or Mr. Bauer?
A. Precisely.”

We believe that the record in its entirety establishes that defendant did not know about the drywall. Defendant, only recently prior to Sparrow’s injury, acquired title to the property through a merger with Northwest Federal. No one from defendant’s office had actually been to the property; both Sparrow and Dick Bauer were employed by a separate entity, Taiman Home Mortgage Corporation. Further, we believe there is no basis to establish that defendant did not use reasonable care to discover the condition. In fact, defendant was exercising reasonable care by having Sparrow inspect the property for necessary repairs. Therefore, according to section 343(a) we affirm the trial court’s directed verdict in favor of defendant.

We are aware that the trial court did not rely on section 343(a) in entering the directed verdict. However, a reviewing court is not bound by the precise reasons given by a lower court in entering a verdict and may sustain the verdict if it is justified by any reason appearing in the record, regardless of whether the lower court relied on those reasons and regardless of whether the lower court’s reasoning was correct. Coleman v. Windy City Balloon Port, Ltd. (1987), 160 Ill. App. 3d 408, 513 N.E.2d 506.

Affirmed.

MURRAY and GORDON, JJ., concur.


author: JUSTICE GORDON

text:
    JAMES KENNEDY et al., Plaintiffs-Appellants, v. BOBBIE AND CLYDE’S, INC., Defendant-Appellee.
    First District (5th Division)
    No. 1—90—1294
    Opinion filed March 27, 1992.

      Ronald H. Balsón, of Chicago, for appellant Marin Moreno.
    Sherwin Greenberg, of Chicago (Ronda M. Cooper, of counsel), for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Plaintiff Marin Moreno appeals from an order entering summary-judgment in favor of defendant Bobbie & Clyde’s, Inc., in this dram-shop action. On appeal, plaintiff contends that genuine issues of material fact remain regarding the question of plaintiff’s complicity which would bar his recovery under the Illinois Dramshop Act (Ill. Rev. Stat. 1989, ch. 43, par. 135).

The complaint alleges that on August 24, 1983, plaintiff suffered personal injuries resulting from an automobile accident where he and Kenneth Raspberry were passengers in a car driven by their friend, James Kennedy, who was allegedly intoxicated as a result of the defendant tavern’s having served him liquor prior to the accident.

On October 23, 1986, defendant filed an affirmative defense alleging that “plaintiff voluntarily participated to a material and substantial extent in the drinking which led to such intoxication in that plaintiff was drinking with JAMES KENNEDY for a period of several hours immediately prior to the incident alleged in the complaint.”

On January 10, 1990, defendant filed a motion for summary judgment based on the affirmative defense of complicity. Both parties relied on the deposition testimony of plaintiff, Kennedy and Raspberry.

Plaintiff testified at his deposition that on August 23, 1983, at about 7 p.m., Kennedy came to his home. The three men went out and bought some beer at a liquor store. They “all pitched in” to buy the beer. Plaintiff did not recall how much beer they bought. They “drank a few beers and then we went to the bar.” Plaintiff did not know how much he or the other two men drank, but it was more than two beers each. Within an hour, they drove to defendant’s tavern, where they arrived at about 9 p.m. or 10 p.m. They remained there “[a]t least two or three” hours. It could have been more than four hours.

Plaintiff testified further that the three men were together “on and off.” There were probably 100 people in the tavern, and they socialized with other people. Plaintiff “was talking with some girl there and she was shooting a little pool.” At one point, plaintiff ran out of money and the girl bought him drinks. Altogether, plaintiff spent around $20 or $25.

Plaintiff had no idea how much he drank. He was “drinking mixed drinks.” He did not know what the other two men were drinking. “I couldn’t tell you.” Plaintiff paid for “some of them.” Sometimes he and Kennedy and Raspberry ordered drinks in rounds of three. Sometimes they took turns paying for rounds. He could not estimate how many rounds they drank, but it was at least five. “I couldn’t tell you, but it was at least five [rounds] that I drank with them.”

Plaintiff testified that he, Kennedy and Raspberry became intoxicated. At some point on the way home they stopped and Kennedy and Raspberry argued. Plaintiff believed Kennedy was “driving fine.” Kennedy was “usually *** very careful about that because he knew he had been drinking and the police out there are pretty strict.” Plaintiff “passed out” while they were driving in the car.

Kennedy testified at his deposition that on August 23, 1983, at 11:30 p.m., he drove to plaintiff’s home and picked up plaintiff and Raspberry. They agreed to go drinking at defendant’s tavern because it was quarter beer night. They did not stop to pick up any alcohol on the way to the tavern. They arrived at the tavern at about midnight and remained there until closing time, at 4 a.m. During that time, plaintiff and Kennedy each drank five or six beers. Plaintiff did not buy beer for Kennedy. “No. We just had our money on the bar.” Kennedy put $4 on the bar when he arrived. When he left, he still had about $2.

Kennedy testified that the three men were not together the entire time they were in the tavern. “Raspberry went to the other side. There is a disco on one side and pool tables on the other side. Me and [Moreno] were on the pool side.”

Kennedy testified further that when he left the tavern, he was not intoxicated. While they were driving home, Kennedy and Raspberry began to argue. Kennedy stopped the car, he and Raspberry got out of the car and Raspberry punched Kennedy in the face four times. Plaintiff intervened, and the three men then continued to drive home. Shortly thereafter, they were in a car accident.

Raspberry testified at his deposition that on August 23, 1983, Kennedy picked up Raspberry and Moreno at 10 p.m. They did not stop at a liquor store that night. They arrived at the tavern at about 10:15 p.m., staying until 4 a.m. All three men drank about 10 beers each during their time at the tavern. Raspberry testified further:

“Q. Were you in Mr. Kennedy’s company the entire time you were at Bobbie & Clyde’s?
A. Yes.”

They sat on stools together at the bar. They might have separated “just to play a pool game.” Raspberry did not believe that plaintiff or Kennedy played pool. Plaintiff and Kennedy did, however, get off the bar stools at some point during the six hours.

“Q. Did you buy any drinks for Mr. Kennedy while you were there?
A. Yes.
Q. Do you know how many you bought him?
A. A few. We all took turns.
Q. Did Kennedy buy any drinks for you?
A. Yes.
Q. Do you know how many he bought you?
A. About the same amount I bought him, say three apiece or something.
Q. What about Mr. Moreno, did he buy drinks for Mr. Kennedy?
A. Yes.
Q. So both of you bought Kennedy drinks?
A. Yes.”

Raspberry testified further that Kennedy did not appear intoxicated when he left the tavern, or on the way home when he started a fight with Raspberry. Raspberry himself was “pretty much” sober. Kennedy and plaintiff were sober. Neither he nor plaintiff suggested to Kennedy that he should not drive.

Raspberry stated that he spent about $4 or $5 on drinks. Each time they bought drinks, the bartender served all three men beers at the same time. They all had their money on the bar.

After they left the tavern, Kennedy was talking about going to another bar. At one point, they got out of the car to fight. Raspberry struck Kennedy a few times. Plaintiff immediately broke up the fight. Raspberry fell asleep, but woke up just before the accident and noticed that Kennedy’s eyes were closed and he “was nodding back as if he was sleeping.”

On April 9, 1990, the trial court entered summary judgment in favor of defendant.

Opinion

Plaintiff contends that summary judgment was not appropriate because genuine issues of material fact remain concerning plaintiff’s alleged complicity. Defendant maintains, and the trial court found, that plaintiff was guilty of complicity as a matter of law, thus barring plaintiff’s recovery for his personal injuries.

Summary judgment is proper where the pleadings, affidavits, depositions and admissions on file establish that no genuine issue of material fact remains and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005.) In considering these documents, the court must construe them strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) The grant of summary judgment preempts the right of trial and thus the law imposes a strict burden on the movant, and his right to summary judgment must be clear and free from doubt. Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 458 N.E.2d 575.

On a motion for summary judgment, the movant has the burden of persuasion. (Purtill v. Hess, 111 Ill. 2d at 240.) If reasonable people could draw more than one conclusion or inference from the facts, a triable issue remains and the motion for summary judgment should be denied. Practical Offset, Inc. v. Davis (1980), 83 Ill. App. 3d 566, 570, 404 N.E.2d 516.

Where the movant is a defendant, the materials relied upon must establish defendant’s factual position on the essential elements of either plaintiff’s cause of action or defendant’s affirmative defense. (Abel v. General Motors Corp. (1987), 155 Ill. App. 3d 208, 507 N.E.2d 1369; Becovic v. Harris Trust & Savings Bank (1984), 128 Ill. App. 3d 107, 469 N.E.2d 1379.) Plaintiff, in turn, need not disprove facts produced by the movant/defendant, but merely has to establish that there is factual evidence showing another version of the relevant events, thus creating a genuine issue as to which version is true. (Beals v. Huffman (1986), 146 Ill. App. 3d 30, 496 N.E.2d 281.) We find that plaintiff has successfully met that burden here and has established factual issues sufficient to withstand a motion for summary judgment.

Section 6 — 21 of the Dramshop Act provides that any individual who is “injured *** by any intoxicated person has a right of action *** against any person, licensed under the laws of this State *** to sell alcoholic liquor, who, by selling or giving alcoholic liquor *** causes the intoxication of such person.” (111. Rev. Stat. 1989, ch. 43, par. 135(a).) The Act “provides no statutory defenses.” Nelson v. Araiza (1978), 69 111. 2d 534, 538, 372 N.E.2d 637.

Illinois law bars such recovery, however, if the injured person is not free from complicity. (Davis v. S S S Development, Inc. (1991), 213 Ill. App. 3d 905, 572 N.E.2d 396.) This bar to recovery “has its genesis not in the statute but in judicial decisions,” and is an “outgrowth of the ‘innocent suitor’ concept.” (Nelson v. Araiza, 69 Ill. 2d at 538.) The defense of complicity is “based on the premise that one who is guilty of complicity in the inebriate’s intoxication should not be allowed to succeed,” since this would “undermine the purpose of the Act in controlling abuses of the liquor trade.” (Nelson v. Araiza, 69 Ill. 2d at 538-39.) The rule of complicity is that “only one who actively contributes to or procures the intoxication of the inebriate is precluded from recovery.” (Nelson v. Araiza (1978), 69 Ill. 2d 534, 543, 372 N.E.2d 637; see also Davis v. S S S Development, Inc., 213 Ill. App. 3d at 908.) The court in Nelson went on to state:

“In many cases this will be an issue of fact under the given circumstances. In other cases whether there is sufficient evidence to support the doctrine as enunciated will be for judicial determination.” Nelson v. Araiza, 69 Ill. 2d at 543.

The Nelson court’s admonishment that “[decisions on complicity are a mass of inconsistency” (Nelson, 69 Ill. 2d at 541) remains true today. (See generally Annot., Third Person’s Participating in or Encouraging Drinking as Barring Him from Recovering under Civil Damage or Similar Acts, 26 A.L.R.3d 1112 (1969).) Illinois decisions are conflicting with regard to whether or not a question of fact exists when there is some evidence showing that plaintiff and the inebriate went on a tour of taverns together, drank together, or bought drinks for each other.

For example, one line of Illinois cases apparently holds that such evidence, without more, is sufficient to bar recovery as a matter of law. See, e.g., Reget v. Bell (1875), 77 Ill. 593 (plaintiff’s action for injuries caused by husband’s intoxication was barred because she did not take away a jug of liquor from her husband); Davis v. S S S Development, Inc., 213 Ill. App. 3d 905, 572 N.E.2d 396 (affirming summary judgment for defendant based on plaintiff’s complicity, which was established as a matter of law; plaintiff initiated the drinking by offering the inebriate whisky, accompanied inebriate to defendant’s store and told her what liquor to buy, and consumed the liquor with the inebriate); Lewis v. Champaign County V F W Post No. 5520 (1989), 187 Ill. App. 3d 73, 543 N.E.2d 233 (affirming summary judgment for defendant based on plaintiff’s complicity; plaintiff went to tavern with friend for business purpose, and friend had one drink; they went to V F W for business purposes and then spent afternoon drinking together at V F W; then went to Legion for business, and spent evening drinking together; then left together and inebriate assaulted plaintiff); Sterenberg v. Sir Loin, Inc. (1989), 183 Ill. App. 3d 631, 634-35, 539 N.E.2d 294 (affirming summary judgment for defendant; the “facts establishing the plaintiff’s participation are admitted [and thus] no question of fact exists and summary judgment is proper”; plaintiff admitted she watched inebriate drink in his apartment, then accompanied him to a club where they both drank, then went with him to the defendant’s restaurant where they drank together through dinner and afterwards at defendant’s bar); Leischner v. Daniel’s Restaurant, Inc. (1977), 54 Ill. App. 3d 568, 370 N.E.2d 157 (complicity established as a matter of law where plaintiff shared drinking with husband at home and then went out drinking with him prior to accident); Holcomb v. Hornback (1964), 51 Ill. App. 2d 84, 200 N.E.2d 745 (recovery denied as a matter of law where plaintiff accepted drinks from the inebriate); Baker v. Hannan (1963), 44 Ill. App. 2d 157, 159, 194 N.E.2d 563 (complicity found as a matter of law where plaintiffs “spent considerable time drinking in the company of the” inebriate, since plaintiffs were twice in presence of the inebriate in two taverns, and in each tavern he bought beer for plaintiffs); Burnley v. Moore (1963), 41 Ill. App. 2d 156, 190 N.E.2d 141 (plaintiff/bartender cannot recover because he served the intoxicated person a drink; plaintiff did not buy drinks for, or drink with, the inebriate); Tezak v. Cooper (1960), 24 Ill. App. 2d 356, 164 N.E.2d 493 (recovery denied as a matter of law where plaintiff accepted drinks from the inebriate); Meier v. Pocius (1958), 17 Ill. App. 2d 332, 150 N.E.2d 215 (recovery denied as a matter of law where plaintiff went on a tour of taverns and joined in drinking, even though he did not buy the inebriate any liquor).

However, there is a second line of Illinois cases which holds that in such instances a factual question exists where the record establishes facts similar to the cases cited above, i.e., showing that plaintiff and the inebriate toured taverns together or drank together. These cases hold that ultimately the trier of fact must determine whether the facts are sufficient to establish that the plaintiff actively procured the intoxication of the inebriate. See, e.g., Nelson v. Araiza, 69 Ill. 2d 534, 372 N.E.2d 637 (reversing directed verdict for defendant; issues of fact remain regarding plaintiff’s complicity); Merritt v. Chonowski (1978), 58 Ill. App. 3d 192, 373 N.E.2d 1060 (reversing summary judgment for defendant; question of fact remains as to complicity where plaintiff toured taverns and drank beer with the inebriate); Krepfl v. Burke (1974), 24 Ill. App. 3d 173, 321 N.E.2d 30 (complicity is a question of fact where plaintiff accompanied the inebriate on a tour of taverns); Dunkelberger v. Hopkins (1964), 51 Ill. App. 2d 205, 200 N.E.2d 905 (complicity is a question of fact where plaintiff accompanied the inebriate on a tour of taverns); Guardado v. Navarro (1964), 47 Ill. App. 2d 92, 197 N.E.2d 469 (complicity is a question of fact where plaintiff accompanied the inebriate on a tour of taverns); Busser v. Noble (1959), 22 Ill. App. 2d 433, 161 N.E.2d 150 (complicity is a question of fact where plaintiff accompanied the inebriate on a tour of taverns); Ness v. Bilbob Inn, Inc. (1957), 15 Ill. App. 2d 340, 146 N.E.2d 234 (complicity is a question of fact where plaintiff accompanied the inebriate on a tour of taverns; plaintiff drank with, but did not buy drinks for the inebriate).

The latest Illinois Supreme Court case on the subject is Nelson v. Araiza (1978), 69 Ill. 2d 534, 372 N.E.2d 637, which tracks this second line of cases. In Nelson, the court reversed and remanded for a new trial because the trial court had erred in directing a verdict for defendants based on the affirmative defense of complicity. The court found that complicity was an issue of fact because the evidence of complicity did not so overwhelmingly favor the dramshop defendants that no verdict in plaintiff’s favor could stand. In that case, the evidence established that plaintiff went to a tavern, where she saw a friend, Araiza, who appeared to be drunk. Plaintiff allowed him to buy her beer, and then she left him at the bar and joined her other friends at a table.

Like the present case, there was evidence in Nelson indicating that plaintiff did not spend any time with Araiza at the tavern after he bought plaintiff the beer. As plaintiff was leaving the bar several hours later, Araiza offered to give her a ride, which plaintiff initially declined, but - then accepted the ride in order to avoid a “hassle.” Araiza stopped at another tavern, bought beer, and drove to a friend’s house. The Nelson facts offered even stronger evidence of complicity because plaintiff and Araiza then spent several hours together at the friend’s house, drinking the beer they had bought. Plaintiff then agreed to go with Araiza to a restaurant if plaintiff could drive. After leaving the restaurant, however, plaintiff let Araiza drive, and they were in an accident.

Despite this evidence of complicity, which is stronger than the evidence in the present case, our supreme court found that factual questions precluded entry of summary judgment for defendant. Nelson v. Araiza, 69 Ill. 2d 539, 372 N.E.2d 637.

In the present case, the evidence is unclear as to the amount of time plaintiff and Kennedy spent together. There is testimony that Kennedy picked plaintiff up and they went to the tavern at 9 p.m., 10 p.m., and 11:30 p.m. There is testimony that they were at the tavern for anywhere from two to six hours. There is testimony that the three men were together the entire time at the tavern, or “on and off,” or hardly any time at all. There is testimony that they all drank beer the entire night or that plaintiff drank mixed drinks. There is testimony that they took turns buying each other drinks, and testimony that they each bought their own drinks. This factual dispute regarding whether they paid for each other’s drinks and whether they drank beer or hard liquor is further evidenced by the testimony that on Monday nights at the defendant tavern the beer costs only one quarter. Yet plaintiff says he spent $25; Kennedy says he spent $2; and Raspberry says he spent $5.

There is also a dispute regarding the amount they drank. Plaintiff testified he had five rounds or more of mixed drinks; Kennedy says they each drank five beers; Raspberry says they each drank 10 beers. There is a dispute as to whether each man believed that he or his two companions were intoxicated at various times during the evening and early morning hours. There is also a dispute as to whether or not they bought beer at a liquor store and drank it before ever going to the tavern.

Thus, there are factual issues remaining both as to what actually occurred and what conclusions may be drawn from those facts that actually occurred. In view of the conflicting and limited testimony available in this record, we find that we are bound by Nelson. We must conclude that reasonable people could differ on the question of whether the facts presently in this record establish that plaintiff is free from complicity.

Notwithstanding the Illinois cases cited above which have held that complicity is established as a matter of law where the affidavits and depositions on file show that plaintiff and the intoxicated person were drinking together prior to the injury to plaintiff, we must conclude that under the holding in Nelson, there are genuine issues of material fact remaining here in regard to whether plaintiff actively contributed to or procured Kennedy’s intoxication. We hold that the trial court erred in granting summary judgment.

Accordingly, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

McNULTY, P.J., and MURRAY, J., concur.

       Plaintiff James Kennedy was dismissed from this lawsuit on December 14, 1984, although the caption of the case remained unchanged.


text:
    LAURA VENTURA, Plaintiff-Appellant, v. CHIARI PICICCI, Indiv. and as Adm’r of the Estate of Michael Picicci, Deceased, Defendant-Appellee.
    First District (5th Division)
    No. 1—90—2807
    Opinion filed March 27, 1992.

      John Thomas Moran, Jr., of Chicago, for appellant.
    Sanchez & Daniels, of Chicago (George L. Acosta, William K. Mosca, Jr., and John D. Daniels, of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

• Plaintiff, Laura Ventura, appeals from an order dismissing her amended complaint for failure to state a cause of action for negligence against defendant, Chiari Picicci. We consider whether plaintiff’s complaint stated a cause of action when defendant allegedly took charge of her adult son knowing of his propensity for violence but failed to control him. For the following reasons, we affirm.

In her complaint, plaintiff sought recovery for personal injuries she sustained on January 18, 1988, when defendant’s adult son, Michael Picicci, shot plaintiff in defendant’s house. Plaintiff alleged that defendant allowed her son to live in the house, paid his living expenses, gave him money to buy cocaine, helped him buy a gun, and allowed him to keep ammunition in the house. Additionally, defendant paid her son’s bond and attorney fees when he was arrested and charged with aggravated assault and a weapons violation. Further, defendant knew that her son shot the gun into the cemetery across the street from the house, pointed the gun at plaintiff pretending it was loaded, and waived the gun around recklessly. Defendant also knew that plaintiff was her son’s friend and that she was often at the house. Plaintiff alleged that under these facts, defendant owed her a duty of reasonable care which defendant breached.

Defendant moved to dismiss the complaint under section 2 — 615 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) for failure to state a cause of action.

The trial judge granted the motion, finding that under the facts alleged in the complaint, defendant did not owe a duty to plaintiff. Plaintiff’s amended complaint was dismissed for failure to state a cause of action and she was not given leave to amend. Plaintiff filed a timely notice of appeal.

Opinion

In considering a motion to dismiss under section 2 — 615 for failure to state a cause of action, the court must accept as true the well-pled allegations of plaintiff’s complaint as well as any reasonable inferences that can be drawn from those facts. (Basler v. Webb (1989), 188 Ill. App. 3d 178, 544 N.E.2d 60.) The complaint must be construed liberally and should only be dismissed when it appears that plaintiff could not recover under any set of facts. Basler, 188 Ill. App. 3d 178, 544 N.E.2d 60.

A complaint for negligence must allege facts showing that defendant breached a duty he owed to plaintiff and that, as a proximate cause, plaintiff was injured. (Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 520 N.E.2d 37.) Whether defendant owed a duty to plaintiff is a question of law for the court to determine considering the reasonable foreseeability of injury, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendant. (Heigert v. Riedel (1990), 206 Ill. App. 3d 556, 565 N.E.2d 60.) Generally, a person does not have a duty to control the conduct of another to prevent harm to a third person unless a special relationship is shown. (Johnson, 119 Ill. 2d 496, 520 N.E.2d 37.) The special relationships giving rise to such a duty are parent-minor child, master-servant, possessor of land-licensee, and a person in charge of another with dangerous propensities, as listed in sections 315 through 319 of the Restatement (Second) of Torts (1965). Johnson, 119 Ill. 2d 496, 520 N.E.2d 37.

In this case, plaintiff argues that her complaint stated a cause of action because defendant was a person in charge of another with dangerous propensities as described in section 319:

“Duty of Those in Charge of Person Having Dangerous Propensities
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” (Restatement (Second) of Torts §319 (1965).)

To illustrate, a private hospital for contagious diseases and a private sanitarium for the insane have a duty to control their patients from injuring third parties. Restatement (Second) of Torts §319, Illustrations, at 130 (1965).

The only Illinois case that plaintiff relies on that considered a person’s duty to control the actions of another adult under section 319 is Kosrow v. Smith (1987), 162 Ill. App. 3d 120, 514 N.E.2d 1016. In Kosrow, plaintiffs alleged that defendant was negligent in failing to control the actions of a houseguest who drove a car while intoxicated and caused an accident. Defendant allegedly knew that the house-guest’s driver’s license was suspended for driving under the influence of alcohol and that the houseguest had a propensity to become intoxicated. The appellate court stated that even assuming defendant knew of his houseguest’s dangerous propensity, the complaint did not state a cause of action under section 319 of the Restatement because there were insufficient allegations that defendant took charge of the house-guest. The court found that defendant’s provision of shelter to the houseguest was insufficient to show that defendant took charge of the houseguest. The complaint did not sufficiently allege that defendant assumed a duty to protect third parties from the houseguest’s actions.

Plaintiff argues that unlike Kosrow, the allegations of her complaint specifically allege that defendant took charge of her son. However, the allegations of the complaint that relate to whether defendant took charge of her son were that she allowed him to live with her and she paid his living expenses. These allegations amount to no more than providing shelter, which was found insufficient in Kosrow. Although plaintiff alleged that defendant gave her son money to buy cocaine and the gun and posted his bail, these facts did not show that defendant took charge of her son. The remaining allegations, that defendant knew her son was reckless with the gun, related to whether defendant knew he was dangerous rather than whether she took charge of him. Similar to Kosrow, plaintiff here did not plead facts that sufficiently alleged defendant took charge of her son which would warrant imposing a duty under section 319.

The only Illinois case plaintiff cites where the court found that a complaint stated a cause of action was Basler (188 Ill. App. 3d 178, 544 N.E.2d 60), which involved an action against the grandparents of a six-year-old girl who injured another child while riding her bicycle. The grandparents were the child’s guardians. The appellate court noted that parents are generally not liable for the torts of their minor children and considered whether the grandparents had a duty under section 316 of the Restatement (Second) of Torts. Section 316 provides that parents are under a duty to control the actions of their minor child when they know they have the ability to control the child and they know of the necessity and the opportunity for exercising such control. Based on section 316, the court found that the complaint stated a cause of action because the grandparents allegedly knew that their granddaughter’s bicycle did not have brakes but did not prevent her from riding it.

The present case is distinguishable from Basler because this case does not involve the liability of a parent for the actions of a minor child under section 316 of the Restatement. Here, plaintiff seeks to hold a parent liable for the actions of her adult child as a person in charge of another known to be dangerous under section 319 of the Restatement. Basler does not support plaintiff’s argument.

Plaintiff also relies on Pesek v. Discepolo (1985), 130 Ill. App. 3d 785, 475 N.E.2d 3, which, similar to Basler, involved a minor child; however, the court in Pesek found that the complaint did not state a cause of action. In Pesek, plaintiff alleged that the parents had a duty to control the actions of their 15-year-old son who raped plaintiff’s daughter. The parents allegedly knew that their son committed criminal or quasi-criminal acts and that he used alcohol and drugs. Similar to Basler, the appellate court considered the parents’ duty to control a minor child under section 316. It found that the complaint did not state a cause of action because there were no allegations that the parents knew their son committed similar acts of violence and had the opportunity to control his actions.

Plaintiff argues that unlike Pesek her complaint specifically alleged prior similar incidents which put defendant on notice of her son’s violent propensities. However, plaintiff cannot avoid the fact that Pesek considered the pleading requirements to establish the parents’ duty to control the actions of their minor child, and in this case, defendant’s son was an adult at the time of the incident.

Plaintiff has not presented this court with any Illinois authority that supports her argument that, under the facts alleged in the complaint, defendant took charge of her adult son and had a duty to control his actions. As a result, the trial judge properly dismissed plaintiff’s complaint for failure to state a cause of action.

In her reply brief, plaintiff for the first time argues that the complaint states a cause of action for negligence against the estate of defendant’s son. Because plaintiff did not raise this argument in the trial court or in her initial appellate brief, it is waived. (134 Ill. 2d R. 341(e)(7).) Despite the waiver, plaintiff’s complaint did not allege any acts of negligence against defendant’s son. Although plaintiff sued defendant individually and as administrator of her son’s estate, the factual allegations of the complaint are only directed to defendant’s individual liability. Plaintiff relies on an allegation in her complaint that as a result of the specified negligent acts and/or omissions of defendant, her son negligently discharged the gun and injured plaintiff. However, plaintiff did not allege any specific acts of the son’s negligence in the complaint and did not even allege the facts surrounding the shooting itself. As a result, even if plaintiff did not waive the argument, her complaint failed to state a cause of action against the estate of defendant’s son.

Affirmed.

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


author: JUSTICE MURRAY

text:
    ROBERT KIRCHHOFF et al., Plaintiffs-Appellants and Counterdefendants and Cross-Appellees, v. MORTON I. ROSEN et al., Defendants-Appellees and Counterplaintiffs and Cross-Appellants.
    First District (5th Division)
    No. 1—91—0497
    Opinion filed March 27, 1992.

      William J. Arendt, of Kanter & Mattenson, Ltd., of Chicago, for appellants.

      Alan L. Unikel and Bryan W. Sill, both of Seyfarth, Shaw, Fairweather & Geraldson, and Marvin Tenenbaum, of Tenenbaum & Senderowitz, both of Chicago, for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiffs Robert Kirchhoff, Carl Kirchhoff, Wayde Kirchhoff, and All-Foam Industries, Inc. (Kirchhoffs), filed this action in chancery claiming fraudulent inducement and sought rescission of a written contract between the parties entitled “Convertible Subordinated Note Agreement” and money damages against the defendants, Morton I. Rosen, James T. Farrell, Valee Foam Plastics, Inc., and Polyfoam Packers, Inc. The defendants defended and contended, among other things, that the convertible subordinated note agreement had been rescinded by mutual consent of the parties prior to this suit. In addition, counterplaintiff Valee Foam Plastics, Inc., filed a counterclaim alleging that counterdefendants Robert Kirchhoff, Carl Kirchhoff, and Wayde Kirchhoff breached their contractual obligations under the convertible subordinated note agreement and sought money damages. Both actions proceeded to trial. The trial court made a directed finding against Valee Foam Plastics, Inc., on its counterclaim and entered judgment against the Kirchhoffs on their third amended complaint. Both rulings are challenged by the respective parties on appeal.

In March 1977, Morton I. Rosen (Rosen) and James T. Farrell (Farrell) formed Valee Foam Plastics, Inc. (Valee). Valee went into the business of selling expandable polystyrene (EPS) foam molded products. In EPS foam molding, small beads of polystyrene are deposited into a mold and, through the application of heat and pressure, the beads expand to take the shape of the mold. Examples of an EPS foam molded product are a “styrofoam” coffee cup or the foam packaging used to protect a toaster in shipment.

At the same time, the Kirchhoffs were engaged in the business of selling, repairing and maintaining steam generating boilers, both new and used, which were employed in the manufacturing of EPS foam molded products. They also operated their own EPS foam molding plant, All-Foam Industries, Inc. In addition, the Kirchhoffs were in the business of designing, selling and installing equipment and layouts of EPS foam molding plants for other EPS foam molding manufacturers.

During 1977 the Kirchhoffs entered into negotiations with Rosen and Farrell to design an EPS foam molding plant for Valee. In December 1977 the parties formalized their relationship by executing the “Convertible Subordinated Note Agreement” (Note Agreement) and other corresponding written agreements. The Note Agreement provided that the Kirchhoffs were obligated to provide Valee with:

1. a compressed air system;
2. a steam system;
3. an expanded bead storage system;
4. an expanded bead transfer system;
5. a water softening system;
6. a bead preexpansion system;
7. a cooling water recirculation system;
8. a fuel storage tank;
9. molding machine installation; and
10. engineering services.

In exchange, Rosen and Farrell were required to pay the Kirchhoffs $160,000 ($60,000 of which was paid upon execution of the Note Agreement and $100,000 to be paid over time under a promissory note), plus 8% interest on all unpaid amounts.

From February 1978 to April 1978 the Kirchhoffs worked on the installation of the Valee plant. In May 1978 the Kirchhoffs turned over the plant to Valee. The Kirchhoffs assert that the plant was fully operational at that time.

Immediately thereafter, Rosen requested certain additions and modifications be made to the plant. The total additions and modifications cost $18,000. These items were supplied and invoiced separately.

After the Kirchhoffs completed installation of the EPS foam molding equipment in the Valee plant in May 1978, disputes arose between the parties as to the adequacy of some of the equipment and installation work provided by the Kirchhoffs and the alleged failure of the Kirchhoffs to provide other equipment and services. Valee asserted and maintained that the Kirchhoffs’ performance under the Note Agreement was not satisfactory. Rosen and Farrell never paid the Kirchhoffs the $100,000, and they only made two of the quarterly interest payments required under the Note Agreement (one in November 1978 for $2,000 and the other in February 1979 for $2,000).

On January 21, 1983, the Kirchhoffs sent a letter indicating an election to rescind the October 1, 1977, agreement. The Kirchhoffs’ January 21, 1983, correspondence provided:

it 'January 21, 1983

Mr. Morton I. Rosen 1805 Apache Lane Mt. Prospect, IL 60056

James T. Farrell

2320 South Foster Wheeling, IL 60090

Valee Foam, Inc. 2320 South Foster Wheeling, IL 60090

Polyfoam, Inc. 2320 South Foster Wheeling, IL 60090

Re: Rescission of Convertible Subordinated Debenture Agreement Dated October 1, 1977 and Agreement to Provide Manufacturing Services

Gentlemen:

The undersigned hereby elect to rescind the above agreement and by this letter demand the return of all consideration provided by them. We hereby offer to return consideration provided by you, if any.

In addition, the undersigned seek reasonable compensation for their services in design, installation and labor for the set up of the plants being operated by Valee Foam, Inc. and Polyfoam, Inc.

Allfoam Industries, Inc. hereby rescinds its agreement to supply manufacturing services and products to you and demands return of the value of its services and products. Allfoam Industries, Inc. hereby offers to return all consideration due, if any.

We expect a response to this notice within seven days.

Very truly yours,

Carl Kirchhoff Robert Kirchhoff Wayde Kirchhoff”

On February 9, 1983, Valee responded to the Kirchhoffs’ offer to rescind the Note Agreement. Valee’s correspondence provided:

“February 9,1983

Mr. Carl Kirchhoff Mr. Robert Kirchhoff Mr. Wayde Kirchhoff All Foam Industries, Inc.

471 Monroe Street Elmhurst, IL 60126

RE: Your demand for rescission of ‘Convertible Subordinated Note Agreement’ dated October 1, 1977

Gentlemen:

We hereby acknowledge and agree to your demand for rescission of the above mentioned agreement. We have already begun to take steps to return certain items, two boilers and distribution panel and an air compressor which were involved. You will receive other items as soon as practical. (As you are aware, however, some of the items furnished to us were useless, and, long ago, had to be discarded.) We feel it would be useful for us to meet and discuss how best to effectuate the return of consideration, and we therefore, respectfully request a meeting at your earliest convenience.

Very truly yours,

James T. Farrell Morton Rosen Valee Foam, Inc.

Polyfoam Packers Corporation”

Thereafter, Valee returned the following equipment: (1) one air compressor ($6,000); (2) one water-cooled aftercooler ($1,300); (3) two 150-horsepower Vapor boilers ($20,000); (4) two boiler pads ($300); (5) one automatic bead control panel (Kirchhoffs claim no value whereas Valee claims it is worth $4,100); (6) one blueprint of bead system and its components (no value); (7) one cooling tower ($3,500); and (8) one water softening system ($5,500). The Kirchhoffs claim that the total value of the returned equipment was $36,600. Valee claims the returned equipment was worth $40,700.

In February 1983 the Kirchhoffs filed this action in the chancery division of the circuit court of Cook County, alleging that the defendants had fraudulently induced them to enter into the Note Agreement. The Kirchhoffs also alleged as a part of the fraud that defendants had requested the Kirchhoffs’ All-Foam division to manufacture foam products for Valee, intending not to pay for them.

In 1987 the Kirchhoffs filed a breach of contract action in the law division of the circuit court of Cook County, Illinois (87 — L— 27403). Said cause remains pending in the circuit court.

In addition to denying the fraud charges outright, defendants pleaded, as affirmative defenses, that the statute of limitations had run on the fraud claims and that, in any event, the Note Agreement had been rescinded by the parties.

After a full trial on the merits, the trial court found in favor of the defendants on the Kirchhoffs’ claims of fraud and also found that the statute of limitations had run on the Kirchhoffs’ fraud claim.

On October 26, 1990, the trial court entered a 33-page judgment order that contained 98 findings of fact and 22 conclusions of law. This included the following:

A. Findings of Fact
“82. Defendants received a letter of rescission from the Kirchhoffs in January, 1983 requesting rescission of the Note agreement.
83. In February, 1983, Defendants sent a letter to the Kirchhoffs agreeing to a rescission of the Note agreement.
84. On February 21, 1983, Valee Foam returned to the Kirchhoffs the following equipment that had originally been supplied by the Kirchhoffs as part of the Note agreement: a 40 horsepower Gardner Denver air compressor; a water-cooled aftercooler; two 150 horsepower Vapor boilers; two boiler pads; an automatic bead control panel; and a blue print of the bead system and its components.
85. After February, 1983, Valee Foam returned to the Kirchhoffs a cooling tower and a water softening system that had been originally supplied by the Kirchhoffs as part of the Note agreement.
86. The Kirchhoffs never returned the $60,000.00 in cash and the $4,000.00 in interest payments paid to them by Valee Foam pursuant to the Note agreement.”
B. Conclusions of Law
“20. Defendants have filed an affirmative defense that the Convertible Subordinated Note Agreement was rescinded in February 1983 and that Plaintiffs were made whole by the rescission. The evidence established that Plaintiffs and Defendants rescinded the Convertible Subordinated Note Agreement in February 1983. The evidence established that Plaintiffs received $64,000 in cash, plus a quantity of equipment in February 1983 and thereafter that was originally supplied to Defendants by Plaintiffs under the Note agreement. Plaintiffs failed to show that what they received back from Defendants was less than the reasonable value of the goods and services they provided pursuant to the Note Agreement. Further, because of the rescission Plaintiffs are not entitled to either interest or attorney’s fees.”

On January 15, 1991, the trial court denied the Kirchhoffs’ motion for reconsideration of the October 1990 order. Subsequently, the Kirchhoffs filed this timely appeal.

The Kirchhoffs argue that the trial court erred in holding that the Note Agreement had been rescinded by mutual agreement of the parties. The defendants argue that the trial court’s finding of mutual rescission is supported by the evidence. In a cross-appeal, Valee argues that if this court finds no rescission of the Note Agreement, their counterclaim based on breach of contract and implied warranties of merchantability and fitness for a particular purpose should be reinstated.

For the following reasons, we affirm the decision of the trial court.

The Kirchhoffs maintain that the trial court erred in holding that (1) a valid and enforceable rescission agreement had been formed by the parties, and (2) that even if a valid and enforceable rescission agreement was formed, the defendants satisfied the conditions precedent of the rescission agreement.

“Rescission” means “to restore the parties to their former position[;] *** a termination of a contract with restitution.” (17A C.J.S. Contracts §385(2), at 458 (1963).) A contract can be rescinded or cancelled by operation of law or by an agreement of the parties either express or implied. (Volk v. Kendall (1979), 71 Ill. App. 3d 211, 213, 389 N.E.2d 697; Julius Levin Co. v. Rosenfield (1923), 230 Ill. App. 126, 138.) Even fully executed contracts can be cancelled or rescinded by mutual consent of the parties or judicial decree. (Chicago Limousine Service, Inc. v. Hartigan Cadillac, Inc. (1990), 139 Ill. 2d 216, 564 N.E.2d 797.) In a mutual agreement to rescind, the parties may absolve themselves from their obligations under such terms as they choose. Drain v. La Grange State Bank (1922), 303 Ill. 330, 135 N.E. 780.

The Kirchhoffs argue that their offer to rescind expired by its own terms seven days after it was issued and 12 days before it was purportedly accepted. If an offer does not state a definite time for acceptance, it lapses if not accepted within a reasonable time. (Zaniecki v. P.A. Bergner & Co. (1986), 143 Ill. App. 3d 668, 493 N.E.2d 419.) Restated, if no specific time limit is fixed with reference to the offer, it continues for a reasonable time. (Calo, Inc. v. AMF Pinspotters, Inc. (1961), 31 Ill. App. 2d 2, 176 N.E.2d 1.) Moreover,

“ ‘[i]f an offer prescribes the place, time or manner of acceptance its terms in this respect must be complied with in order to create a contract. If an offer merely suggests a permitted place, time or manner of acceptance, another method of acceptance is not precluded.’ ” (Calo, Inc. v. AMF Pinspotters, Inc. (1961), 31 Ill. App. 2d 2, 9, 176 N.E.2d 1, quoting Restatement of Contracts §61 (1932).)

Contrary to the Kirchhoffs’ argument, the January 21, 1983, letter does not indicate an expiration date for the offer of rescission; the letter merely indicates that a response is expected within seven days.

No specific time limit was fixed with reference to acceptance of the offer to rescind the Note Agreement; consequently the offer to rescind continued for a reasonable time. Valee responded by letter dated February 9, 1983. This was only 18 days after the offer was made. The Kirchhoffs did not respond in any way to Valee’s letter. The Kirchhoffs never indicated to the defendants that the offer had expired nor did the Kirchhoffs’ letter include any reference that time was of the essence. In this case 18 days was a reasonable period of time for acceptance.

The Kirchhoffs also argue that the trial court erred in finding a rescission, because they did not receive back everything that they had supplied to Valee. The Kirchhoffs list the items and alleged corresponding dollar amounts of these items. However, there is a difference between a mutual rescission agreement, where the parties agree to a rescission, and situations where a party seeks rescission by operation of law. Open terms in a contract do not prevent the valid formation of a contract, so long as the mutual intent to enter the contract is clear. Midland Hotel Corp. v. The Reuben H. Donnelley Corp. (1986), 149 Ill. App. 3d 53, 501 N.E.2d 1280, aff’d in part & rev’d in part (1987), 118 Ill. 2d 306, 515 N.E.2d 61.

In a mutual agreement to rescind, the parties may absolve themselves from their obligations under such terms as they choose. (Drain v. La Grange State Bank (1922), 303 Ill. 330, 337, 135 N.E. 780, 783.) An agreement to mutually rescind an existing contract can be found from circumstances or a course of conduct clearly evidencing such rescission. (Hayne v. Fenton (1926), 321 Ill. 442, 151 N.E. 877.) “ ‘Just as contracts may be implied from the conduct of the parties, so may a rescission of contracts be implied therefrom. Words amount to very little where actions are conclusive.’ ” (Volk v. Kendall (1979), 71 Ill. App. 3d 211, 213, 389 N.E.2d 697, 699, quoting Julius Levin Co. v. Rosenfield (1923), 230 Ill. App. 126, 138.) The conduct of the parties will suffice to show agreement to the terms of the contract. Likens v. Inland Real Estate Corp. (1989), 183 Ill. App. 3d 461, 539 N.E.2d 182.

The Kirchhoffs’ conduct may be interpreted as a manifestation of their intention to mutually rescind the Note Agreement. The Kirchhoffs sent a letter to Valee offering to rescind the Note Agreement. Eighteen days later Valee sent a letter to the Kirchhoffs accepting their offer to rescind, stating that it would not be feasible to return all of the equipment. Subsequently, the Kirchhoffs accepted Valee’s tender of equipment and retained $64,000 previously paid to them by Valee. The Kirchhoffs never indicated to Va-lee that they considered the offer to rescind lapsed or expired. Moreover, there is no evidence that the Kirchhoffs specified any contingencies or indicated that they did not intend to rescind the Note Agreement when they accepted Valee’s tender of equipment. The actions of both parties in this case were consistent with an agreement to rescind the Note Agreement.

A reviewing court will not substitute its judgment for that of the trial court unless an opposite conclusion is clearly evident. A decision is not against the manifest weight of the evidence where the court’s decision is supported by the evidence. (Aetna Insurance Co. v. Amelio Brothers Meat Co. (1989), 182 Ill. App. 3d 863, 865, 538 N.E.2d 707, 709.) The only relief the Kirchhoffs ask in this case is the reversal and vacation of the trial court’s findings of fact 82 through 86 and conclusion of law 20. We find that the trial court’s findings of fact and conclusions of law are supported by the evidence in the case. Accordingly, we cannot find that the trial court’s decision that the Note Agreement was rescinded by mutual agreement of the parties was against the manifest weight of the evidence.

As an alternative to their affirmative defenses, cross-appellant Valee filed a counterclaim against the Kirchhoffs, alleging that the Kirchhoffs breached the Note Agreement by failing to provide and install the EPS foam molding equipment in a workmanlike manner and that the Kirchhoffs breached implied warranties of merchantability and fitness for purpose. After Valee presented its case in chief on the counterclaim, the Kirchhoffs moved pursuant to section 2— 1110 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 100, par. 2 — 1110) for judgment in their favor. The court granted the Kirchhoffs’ motion and dismissed the counterclaim. Valee cross-appeals from that order. However, Valee also acknowledges that the cross-appeal is only relevant if this court reverses the trial court’s findings on the rescission issue. Since we have affirmed the trial court’s findings on the rescission issue, we need not address the issues raised in Valee’s cross-appeal.

Accordingly, for all the reasons set forth above, we affirm the decision of the trial court.

Judgment affirmed.

McNULTY, P.J., and LORENZ, J., concur.