author: JUSTICE SPITZ

text:
      In re T.B. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Angela Roy, Respondent-Appellant).
    Fourth District
    No. 4—90—0658
    Opinion filed June 20, 1991.

      Lynne R Feldman, of Kirtley-Pavia-Marsh, P.C., of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Harvey Welch, of Urbana, guardian ad litem.

   JUSTICE SPITZ

delivered the opinion of the court:

This is an appeal by the respondent Angela Roy from an order of the circuit court of Champaign County placing guardianship and custody of T.B., R.B., and A.R. in the Illinois Department of Children and Family Services (DCFS) and awarding the custody of C.B. to her father. The trial court found the children to be neglected minors by reason of their being physically abused by respondent and her current husband, Raymond Roy, the father of A.R. The date of birth of each child is as follows: T.B. was born September 9, 1983; C.B. was born October 30, 1984; R.B. was born May 20, 1987; and A.R. was born May 27,1989.

On appeal, respondent raises three issues. The issues to be considered are: (1) whether the petition to have the children determined to be neglected minors fails to allege with specific particularity the grounds upon which the petition is based; (2) whether the findings of the trial court were against the manifest weight of the evidence; and (3) whether the dispositional orders of the trial court resulted from an abuse of discretion.

The first issue to be considered is the specificity of the petition. The petition contained two counts. Count I alleged the children were neglected by reason of their environment being injurious to their welfare. Count II alleged the children were abused because respondent created a substantial risk of physical injury to the minors by other than accidental means and her acts would be likely to cause impairment either to the minors’ emotional health or their bodily functions, or both.

In determining the sufficiency of the pleading, the test is whether the petition reasonably informs the respondent of a valid claim made under a general class of cases of which the circuit court has jurisdiction. (In re G.W.S. (1990), 196 Ill. App. 3d 107, 553 N.E.2d 85.) The statutory requirements of adjudicating a minor neglected or abused do not require an allegation of parental unfitness. (Ill. Rev. Stat. 1989, ch. 37, pars. 802-3, 802-21, 802-23, 802-27.) If necessary, that issue may be raised in a supplemental petition for termination of parental rights. In re Smith (1981), 95 Ill. App. 3d 373, 420 N.E.2d 200.

In the case at bar, the allegations of abuse and neglect conform to the statutory grounds. (Ill. Rev. Stat. 1989, ch. 37, pars. 802 — 3(l)(b), (2)(i).) As a result, the petition properly stated the causes of action for abuse and neglect.

Respondent argues that since the petition failed to allege she was an unfit mother, the trial court’s finding of unfitness in the dispositional order was inappropriate. (In re B.K. (1984), 121 Ill. App. 3d 662, 460 N.E.2d 43.) Respondent points out that the failure to allege unfitness induced her to present no witnesses on her behalf. She also admitted the allegations in the petition at the adjudicatory hearing.

The State responds that because the consequences of the proceedings are different, the term “unfit” in the section relating to removing custody and guardianship from a parent following a finding of neglect differs in meáning from the unfitness required to be found for termination of parental rights for purposes of appointing a guardian with consent to adopt. We agree, and furthermore, where the State does not seek to have parental rights terminated, upon a finding of unfitness the trial court’s discretion in entering a dispositional order is limited in the alternatives available because of the differences in the burden of proof and the failure to notify the respondent that termination of parental rights would be sought. Furthermore, the trial court found that respondent was unfit and unable for other than financial reasons to care for, protect, train and discipline the minors. Finally, the petition’s prayer for relief did ask the trial court to make findings as to fitness, willingness and ability of the parents to care for, protect, train, or discipline the minors. Therefore, respondent should have been aware that her unfitness would be an issue in this matter, and she has failed to demonstrate how she is prejudiced.

The remaining issues to consider are whether the trial court’s finding that respondent is unfit and unable for other than financial reasons to care for, protect, train, and discipline the minors, and those findings relating to the best interests of the children and the community, are against the manifest weight of the evidence and whether the dispositional order is an abuse of discretion. Having admitted the allegations of neglect, respondent does not contest the findings of neglect.

On review, the trial court’s determination will be reversed only if the findings of fact are against the manifest weight of the evidence or if the trial court committed an abuse of discretion by selecting an inappropriate dispositional order. (In re Jackson (1980), 81 Ill. App. 3d 136, 400 N.E.2d 1087; In re Nitz (1979), 76 Ill. App. 3d 15, 394 N.E.2d 887; see also In re Napier (1980), 83 Ill. App. 3d 503, 404 N.E.2d 423 (which points out that the exercise of discretion relates to the choice of disposition).) A finding of the trial court is against the manifest weight of the evidence if a review of the record clearly demonstrates that the result opposite to the one reached by the trial court was the proper result. (Stone v. City of Arcola (1989), 181 Ill. App. 3d 513, 536 N.E.2d 1329.) This standard of review recognizes that the trial court is in a much better position than is this court to observe the witnesses, assess credibility, and weigh the evidence. For this reason, a reviewing court will not overturn the trial court’s findings merely because the reviewing court might have reached a different decision. In re Application of the County Treasurer (1989), 131 Ill. 2d 541, 546 N.E.2d 506.

With regard to the trial court’s discretion in entering a dis-positional order, the trial court may place the minor in the custody of a person not a parent of the minor, as provided in section 2 — 27 of the Act, if the court finds the following: (1) the parents are unfit or unable for reasons other than financial circumstances alone or are unwilling to care for, train, protect, or discipline the minor; and (2) services aimed at family preservation and reinforcement have been unsuccessful in rectifying the conditions leading to findings of unfitness or inability; and (3) the best interests of the minor require custody be placed with someone other than the parents. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 27.) A parent’s right to custody of the child does not prevail where the court has determined such custody would be contrary to the best interests of the child. (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 2(3)(c).) Where an injurious environment has been found to exist, the trial court need not wait until the child becomes a victim or is emotionally damaged permanently in order to remove the child from the household. In re A.D.R. (1989), 186 Ill. App. 3d 386, 542 N.E.2d 487.

The respondent’s argument, while referring to manifest weight in the statement of the issue, instead focuses on the impropriety of the custody awards in the dispositional orders. As a result, this court will also focus on the question of abuse of discretion by the trial court.

The underlying facts are these. A report of neglect involving respondent and T.B. was received by DCFS on December 18, 1983. This was an “indicated report.” On November 10, 1986, DCFS began investigating a second indicated report that C.B. was diagnosed as having chlamydia, as well as cuts, bruises, and welts. The investigation focused on the substantial risk of physical injury to C.B. and exposure to sexually transmitted diseases by an "unknown perpetrator. A third indicated report was received on July 12, 1988, regarding inadequate supervision and a substantial risk of physical injury where respondent admitted leaving R.B. asleep in his crib and alone while respondent walked to the grocery store with the other two children. The crib was observed to have window blind cords and tape hanging in it. The fourth indicated report was received on December 27, 1989. R.B. was found to have three bruises on his face and numerous bruises on his buttocks. Respondent’s current husband admitted losing control and hitting R.B. across the face with his hand and a wooden paddle, spanking him on the buttocks, and shoving him. R.B. also had a large abrasion on his chin from being pushed on a rug by respondent’s husband. Respondent was given the choice of seeking a protective order and having her husband leave the home or having the children placed in protective custody. Respondent was reported to be “very resistant,” but she did pursue the protective order and had her husband leave the home. Respondent later stated she caused some of the bruises observed on R.B. On April 27, 1990, the most recent report was received and involved cuts, bruises, and welts on R.B., a bruise on C.B.’s forehead (which the child said was caused by her mother hitting her with the hand), faint bruises on C.B.’s buttocks caused by respondent’s husband, and T.B. denying he had bruises but stating that if he does something wrong respondent has her husband spank him.

The trial judge was “extremely troubled” by the fact there were five indicated reports involving this family. He also noted that respondent’s husband’s spanking of the children was inconsistent with an agreement made by DCFS which allowed the children to remain in the house. Of additional concern was the fact the order of protection was violated by respondent’s husband baby-sitting the children.

The respondent asks this court to review the report of DCFS employees and outside counselors to determine that the findings of unfitness and inability are against the manifest weight of the evidence or that the dispositional order is a result of an abuse of discretion. This has been done.

While the caseworkers from the Central Baptist Family Services Family First Program did find in respondent and her husband a strong desire for family reunification, they also found their communication with the children was not very interactive and generally took the form of directives or advice. The recommendations that were made included continued parent education and counseling, individual attention from service providers for the children, and continued family participation in the Family First Program. Similarly, the report from Family Service of Champaign County recommends continued counseling for respondent and her husband and a strong recommendation to review the frequency and length of visits due to the levels of cooperation and the remorse displayed by respondent and her husband. The report of the Parent Education Group of the Children’s Home and Aid Society of Illinois merely states that “success” is expected if respondent and her husband continue to work on and improve their parenting techniques and they achieve work schedules which allow both parents to be home with the children as frequently as possible and to allow them each to get sufficient sleep. The report from the Mental Health Center of Champaign County recommended continued participation in a pretherapy group for respondent’s husband, although future physically abusive behavior toward the children was not considered a high risk because of the adverse consequences of being removed from the family and the fact he has now been provided alternative methods of discipline. The foster family caseworker for Webster-Cantrell Hall in Decatur, Illinois, supervised visitation and her report discusses the interaction of the children with respondent and her husband. The DCFS child-welfare specialist, James Forrest, made the following recommendations: (1) DCFS be made guardian of the minors; (2) unsupervised, extended, overnight visitation be authorized; and (3) the order of protection be vacated. However, not one of these reports recommends that custody be returned to respondent.

Respondent also points to the fact that C.B.’s father indicated he would support returning C.B. to Illinois to enable her to be with her half-siblings and to enhance the opportunity for family reunification. C.B. currently resides with her father in Nevada. The trial court rejected this suggestion. The trial judge stated his alternatives at this time for C.B. were placement in a foster home or placement with her father, and as far as the trial judge was concerned, placement with her father was the preferable choice.

On the facts of this case, the findings of fact are not against the manifest weight of the evidence and the dispositional order is not an abuse of discretion. Accordingly, the order of the circuit court of Champaign County is affirmed.

Affirmed.

LUND, P.J., and KNECHT, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA PRESIDING JUSTICE RAKOWSKI,

license: Public Domain

text:
    THE PRIME GROUP, INC., et al., Plaintiffs-Appellees, v. NORTHERN TRUST COMPANY, as Trustee, et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—90—0431
    Opinion filed June 21, 1991.

      RAKOWSKI, P.J., dissenting.
    Joseph & Myers, of Chicago (Michael P. Myers and Jack Joseph, of counsel), for appellants.
    Winston & Strawn, of Chicago (Terry M. Grimm, Paul P. Biebel, Jr., and Catherine W. Joyce, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendants appeal from a judgment entered by the circuit court of Cook County granting to plaintiffs specific performance of a real estate agreement. On appeal, defendants contend that the trial court erroneously found plaintiffs’ September 1988 payment timely and erroneously granted specific performance in favor of plaintiffs.

On December 12, 1986, the parties entered into a real estate purchase agreement (Agreement) for plaintiffs’ purchase from defendants of 63.8 acres of land in unincorporated Lake County. The Agreement gave plaintiffs 60 days from the date of execution (feasibility period) to review the title and the feasibility of developing the property, during which time plaintiffs could terminate the Agreement at their discretion. Pursuant to the parties’ subsequent agreement and plaintiffs’ $7,500 payment, the feasibility period was extended from 60 to 150 days.

The issue on appeal concerns the interpretation of paragraph 9 of the Agreement, which outlined conditions precedent to closing and granted plaintiffs the right to extend the period for fulfillment of the conditions. These conditions precedent included: rezoning of property to permit plaintiffs’ purported development; approval of plans by appropriate government agencies and authorities; and confirmation of adequate utilities. The provisions at issue, set forth in paragraph 9, provided in pertinent part:

“Purchaser shall notify Seller no later than three hundred (300) days following the expiration of the feasibility period whether the aforementioned conditions have been satisfied or that the same have been waived by Purchaser. If Purchaser shall notify Seller that the aforementioned conditions have not been satisfied and have not been waived by Purchaser prior to such date, this Agreement and all rights, obligations and liabilities hereunder shall terminate; provided, however, that, if all of the aforementioned conditions have not been satisfied or waived by Purchaser on or before such date, Purchaser, at Purchaser’s sole and absolute discretion, may extend such date for periods of thirty (30) days each for no more than ten (10) periods by written notice from Purchaser to Seller and by payment to Beneficiary of the sum of Five Thousand and no/100 Dollars ($5000.00) (the Extension Payment) for each thirty-day extension.”

In October 1987, when the Lake County Zoning Board of Appeals recommended denial of plaintiffs’ application for rezoning, plaintiffs began to explore alternatives to their original development plan for the property. In November 1987, plaintiffs refused defendants’ request for written waiver of the rezoning contingency.

Pursuant to the Agreement, and as plaintiffs’ December 30, 1987, letter acknowledged, the time within which the conditions could be waived or satisfied would expire on March 10, 1988. On March 9, 1988, plaintiffs delivered to defendants written notice of their intent to extend the date by 30 days and the required payment. On April 8, 1988, plaintiffs delivered a second notice and tendered payment to extend the date. In May, June, July and August, plaintiffs delivered notices and payments to defendants before the prior 30-day period elapsed. A letter enclosed with the August payment acknowledged that the Agreement was extended until September 6, 1988. On September 8, 1988, plaintiffs tendered another extension payment. Defendants returned the notice and payment to plaintiffs on the following day and informed plaintiffs that the Agreement had terminated. Although plaintiffs informed defendants on September 12, 1988, that they were willing to close the transaction on October 31, 1988, defendants refused to close, maintaining that the Agreement had been terminated.

Plaintiffs sought a declaration of the parties’ rights under the Agreement and a judgment of specific performance. Defendants subsequently moved for summary judgment. The parties filed a stipulation of uncontested facts and agreed to an order allowing the trial court to render a decision based solely upon the record before it.

On January 4, 1990, the trial court held that the Agreement did not specify a date for the delivery of extension payments or for the notice of extension. Because no date was specified, the court held that plaintiffs’ September 8, 1988, extension payment was tendered within a commercially reasonable time. The court accordingly granted specific performance in favor of plaintiffs.

On appeal, defendants argue that the terms of the Agreement required plaintiffs to tender the payment prior to the expiration of the prior period. Alternatively, defendants assert that the Agreement was an option contract and, as such, required strict compliance with time limitations. Further, defendants maintain that because plaintiffs failed to make a timely payment in September 1988, the Agreement terminated and plaintiffs are not entitled to enforce it.

We note initially that the granting of a decree of specific performance lies in the trial court’s sound judicial discretion and will not be disturbed on appeal absent an abuse of discretion. (Chariot Holdings, Ltd. v. Eastmet Corp. (1987), 153 Ill. App. 3d 50, 505 N.E.2d 1076.) Further, we will uphold the trial court’s judgment if it is justified in the law for any reason that appears in the record. Kostur v. Indiana Insurance Co. (1989), 192 Ill. App. 3d 859, 549 N.E.2d 685.

We first consider defendants’ argument that the Agreement unambiguously required plaintiffs to tender an extension payment before the prior period expired. In construing a contract’s terms, the primary objective is to give effect to the parties’ intentions. (Continental Assurance Co. v. Commonwealth Edison Co. (1990), 194 Ill. App. 3d 1085, 551 N.E.2d 1054.) A court must seek a reasonable interpretation, and a strong presumption exists against provisions which could easily have been included in the agreement. Ebrahim v. Checker Taxi Co. (1984), 128 Ill. App. 3d 906, 471 N.E.2d 632.

In our view, paragraph 9 did not require plaintiffs to tender their notice and payment before the prior period ended. The provision unequivocally gave plaintiffs 300 days after the feasibility period to inform defendants whether the conditions have been satisfied or waived. The provision then entitled plaintiffs to “no more than” 10 30-day extensions if plaintiffs notified defendants and paid $5,000 to the beneficiary. Despite the Agreement’s precision as to the number and length of extensions and the amount of the payments, the Agreement failed to specify when such payment was due. The provision simply did not indicate when payment must be received, let alone state that it must be received prior to the end of the extension period. Such interpretation was not “plain and obvious” from the language. (J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd. (1990), 194 Ill. App. 3d 744, 748, 551 N.E.2d 340, 342.) Because the parties declined to set forth time limitations, we, therefore, cannot conclude that the Agreement required payment before the prior period expired. In the absence of a date, the trial court properly implied a reasonable time. Murphy v. Roppolo-Prendergast Builders, Inc. (1983), 117 Ill. App. 3d 415, 453 N.E.2d 846.

Nor do we believe that plaintiffs’ conduct evidences the parties’ intention that payment be tendered before the prior period expired. Defendants argue that by making payments in March through August before the prior extension period passed, plaintiffs demonstrated that they believed such payment was due before the extension ended. However, such payments are equally consistent with an intention to make payment within a commercially reasonable time, and in the absence of express language requiring notice and payments by a particular time, we do not conclude that the parties so intended.

As additional support for their argument that the Agreement required plaintiffs to tender payment earlier, defendants rely upon the “time is of the essence” clause and their characterization of the Agreement as an option contract. Neither argument is persuasive.

Defendants maintain that the Agreement was in substance an option contract and plaintiffs’ failure to tender a timely extension payment terminated both the option and the Agreement and precluded specific performance for plaintiffs. We disagree.

An option contract is an agreement in which one binds himself to perform a certain act, at the sole power and discretion of optionee to accept upon terms specified at which time it is converted from a bilateral to a unilateral contract. (Stull v. Hicks (1978), 59 Ill. App. 3d 665, 375 N.E.2d 981.) Moreover, an option contract has two elements: (1) an offer to do something or to forebear, which does not become a contract until accepted; and (2) an agreement to leave offer open for a specified or reasonable time. Hamilton Bancshares, Inc. v. Leroy (1985), 131 Ill. App. 3d 907, 476 N.E.2d 788.

The Agreement here obligated both parties to perform and became a valid, bilateral contract upon execution on December 12, 1988. The extension provisions did not, as defendants suggest, transform the Agreement into an option contract. Paragraph 9 merely set forth conditions precedent to plaintiffs’ performance and allowed plaintiffs to extend the period during which the conditions for closing had to be satisfied. Indeed, plaintiffs were bound under the Agreement to close when rezoning was approved or when plaintiffs waived the condition. The Agreement itself is entitled “Real Estate Purchase Agreement,” and contains a reference to earnest money. While the caption is not controlling, it is probative. The caption and the Agreement’s reference to “earnest money” refute defendants’ characterization of the Agreement as an option contract. See Summers v. Hedenberg (1916), 198 Ill. App. 460.

Nor do we believe that plaintiffs treated the Agreement as an option contract. Defendants mischaracterize plaintiffs’ refusal in late 1987 to waive the zoning contingencies as giving plaintiffs an “unfettered right” to terminate the Agreement. We believe plaintiffs’ refusal to tender a written waiver merely demonstrated their decision not to waive the contingency until they considered other options and plaintiffs’ exercise of their right to extend the period under the Agreement. Indeed, under the Agreement plaintiffs could extend the period until March 1988 and then for 300 additional days. The uncontested facts also reveal that plaintiffs were considering alternatives to their original development plan.

We also refuse to apply the “time is of the essence” clause from paragraph 17 to the extension provision in paragraph 9, as defendants urge, because we conclude that the parties did not intend time to be of the essence in the extension provision. Even though a contract expressly stipulates that time is of the essence, the court will look at the parties’ intentions, as seen in the language and the circumstances surrounding the agreement, in order to determine whether to strictly enforce the provision. (Anest v. Bailey (1990), 198 Ill. App. 3d 740, 556 N.E.2d 280.) Moreover, we will not give effect to such clause unless it clearly applies to the contract requirement against which it is sought to be applied. 81 C.J.S. Specific Performance §121 (1977).

The language of paragraph 9 and the circumstances belie defendants’ interpretation that time is of the essence in the extension provision. First, the clause providing that time was of the essence appeared in paragraph 17, not paragraph 9, and related to the ultimate closing of the purchase rather than the extension payments. (See Jackson v. Holmes (1975), 307 So. 2d 470.) Second, as previously noted, paragraph 9 did not specify when plaintiffs must make extension payments. The provision merely detailed how plaintiffs secured an extension. Indeed, the Agreement granted plaintiffs 300 days, then provided for 10 30-day extensions, totalling another 300 days. The Agreement by its very terms allowed numerous extensions to closing. Certainly, if time were of the essence for making extension payments, at minimum the provision would have expressly set forth a due date. We cannot therefore conclude that the parties intended to apply the general “time” clause of paragraph 17 to the provision at issue.

We also reject defendants’ assertion that the contract terminated when plaintiffs failed to tender payment before the prior extension period expired. Even assuming that the September payment was untimely, the result would not be termination. We reject the argument that the contract was terminated by the mere passage of time. Two provisions of paragraph 9 expressly required the plaintiffs-purchasers’ affirmative act to terminate the Agreement. They provided:

“If Purchaser shall notify Seller that the aforementioned conditions have not been satisfied and have not been waived by Purchaser prior to such date, this Agreement and all rights, obligations and liabilities hereunder shall terminate.” (Emphasis added.)
“If Purchaser determines that there is an impediment to Purchaser’s closing which Purchaser is not able or willing to attempt to overcome, Purchaser shall so notify Seller and Beneficiary within a reasonable time, and upon such notice, this Agreement shall terminate; and, if Purchaser does not so notify Seller and Beneficiary within a reasonable time, Purchaser shall be deemed to waive its right not to close by reason of such impediment.” (Emphasis added.)

Plaintiffs here never informed defendants that the conditions were not met or that plaintiffs refused to waive the conditions, despite defendants’ request for a written waiver. We do not believe that the anticipated denial by the zoning board to rezone the premises and plaintiffs’ subsequent withdrawal of their application constitute such notification by plaintiffs sufficient to terminate the Agreement. Nor do we believe that plaintiffs’ letters, dated November 19, 1987, December 30, 1987, and August 5, 1988, result in termination of the Agreement. Rather, they show plaintiffs’ difficulty in proceeding with their initial plan and their recognition that the Agreement allowed them extensions. To find otherwise would result in an illogical reading of the Agreement. By the Agreement’s own terms, it did not terminate.

Finally, we note that forfeitures are disfavored and courts will protect against them where injustice will result from their enforcement. (Hajeck v. Wyrick (1984), 124 Ill. App. 3d 210, 463 N.E.2d 1348.) We find Rose v. Dolejs (1953), 1 Ill. 2d 280, 116 N.E.2d 402, and Chariot Holdings instructive. Our supreme court in Rose refused to allow forfeiture of a land sale contract because of a late payment, stating: “It is especially well settled that where the agreement is simply one for the payment of money, a forfeiture of land incurred by the nonperformance of the agreement will be set aside on behalf of the defaulting party or relief will be granted in any other manner made necessary by the circumstances of the case ***.” Rose, 1 Ill. 2d at 290, 116 N.E.2d at 409.

Similarly, in Chariot Holdings, this court upheld the trial court’s specific performance decree where it found that the sellers were not prejudiced by the time delay. The parties’ agreement required purchaser to have funds “immediately available” at closing. Some of the money, however, was placed in escrow for five days. This court concluded that the five-day delay was reasonable and did not warrant termination of the contract, expressly approving the trial court’s focus on the lack of prejudice caused by the delay. In so doing, the court described time requirements as “accessory rather than central aspects of most contracts.” Chariot Holdings, 153 Ill. App. 3d at 58, 505 N.E.2d at 1082.

Under Rose and Chariot Holdings, the trial court properly granted specific performance and avoided forfeiture. If there was a “due date,” a two-day delay was substantially insignificant in light of the contract’s provisions allowing numerous delays. Most significantly, defendants will receive the bargained-for purchase price, the full benefit of their bargain, if the Agreement is enforced. (Aden v. Alwardt (1979), 76 Ill. App. 3d 54, 59, 394 N.E.2d 716, 719 (“most important” factor in granting relief from forfeiture).) Plaintiffs, on the other hand, would lose the $62,500 paid and their rights to own the land, without any evidence showing that the delay harmed defendants. (The $62,500 expended consists of $25,000 in earnest money, $7,500 for extension of feasibility period, and $30,000 for six extension payments of $5,000 per month.) Defendants distinguish Chariot Holdings on the ground that the buyer there was committed to complete the transaction, whereas plaintiffs here merely tried to extend the time within which to decide whether to enter the Agreement. We disagree because, as indicated above, we find that plaintiffs were obligated under the contract to perform and any attempts to extend the time period were authorized by the Agreement itself.

In summary, the trial court’s finding that plaintiffs acted "within a commercially reasonable time is not against the manifest weight of the evidence. The remedy of specific performance was within the trial court’s sound discretion and is accordingly affirmed.

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

Judgment affirmed.

EGAN, J., concurs.

PRESIDING JUSTICE RAKOWSKI,

dissenting:

Because the majority opinion omits certain facts which I believe are critical to the disposition of this case, a brief factual statement is necessary.

On December 12, 1986, the parties entered into a real estate purchase agreement (Agreement) whereby plaintiffs were obligated to purchase and defendants to sell 63.8 acres of land in unincorporated Lake County. The Agreement provided that plaintiffs had 60 days from the date of execution (feasibility period) to review the title as well as the feasibility of the properties’ development. Pursuant to the parties’ subsequent agreement and plaintiffs’ $7,500 payment, the feasibility period was extended from 60 to 150 days. Paragraph 9 of the agreement states in pertinent part as follows:

“Purchaser shall notify Seller no later than three hundred (300) days following the expiration of the feasibility period whether the aforementioned conditions have been satisfied or that the same have been waived by Purchaser. If Purchaser shall notify Seller that the aforementioned conditions have not been satisfied and have not been waived by Purchaser prior to such date, this Agreement and all rights, obligations and liabilities hereunder shall terminate; provided, however, that, if all of the aforementioned conditions have not been satisfied or waived by Purchaser on or before such date, Purchaser, at Purchaser’s sole and absolute discretion, may extend such date for periods of thirty (30) days each for no more than ten (10) periods by written notice from Purchaser to Seller and by the payment to Beneficiary of the sum of Five Thousand and no/100 Dollars ($5000.00) (the Extension Payment) for each thirty-day extension.”

The parties agree that adding the 150-day feasibility period to the 300-day period provided for in the contract obtains a date of March 10, 1988. Therefore, this is the date referred to in the contract wherein it states “[i]f Purchaser shall notify Seller that the aforementioned conditions have not been satisfied and have not been waived by Purchaser prior to such date, this Agreement and all rights, obligations and liabilities hereunder shall terminate.” (Emphasis added.) There is no question that prior to “such date” (March 10, 1988) the purchaser notified the seller that aforesaid condition had not been satisfied and waived. This fact is evidenced by the following:

(1) On October 9, 1987, the Lake County Zoning Board of Appeals recommended a denial of the application to rezone the premises.

(2) On November 19, 1987, Prime sent a letter to counsel for the defendants, stating:

“Although at the present time, it appears unlikely that Prime will receive approval from Lake County for the rezoning of the property to permit the development thereon of single-family residences on lots no larger than two (2) acres Prime cannot waive the rezoning contingency, thereby restricting its options with respect to the property.”

(3) That prior to any action being taken by the board of trustees of Lake County on the rezoning application, Prime withdrew its application because of the unfavorable recommendation of the Lake County Board of Appeals.

(4) On December 30,1987, Prime stated in a letter to defendants: “If, despite Prime’s efforts, the conditions are not satisfied on or before March 10, 1988, Prime has the option to terminate the agreement or to extend the period during which the conditions may be satisfied by up to ten thirty-day periods.”

Thus, according to its express and unambiguous terms, the contract would terminate on March 10,1988, unless purchaser

“extend[ed] such date for periods of thirty (30) days each for no more than ten (10) periods by written notice from Purchaser to Seller and by payment to Beneficiary of the sum of Five Thousand and No/100 Hundred Dollars ($5,000.00) (the Extension Payment) for each thirty-day extension.”

On March 9, 1988, plaintiffs hand delivered a written notice of their intent to extend the Agreement for 30 days along with the required payment. On April 8, 1988, plaintiffs hand delivered a second notice and payment extending the Agreement until May 9, 1988. Plaintiffs then delivered a timely extension notice and payment in May, June, July and August. With the August notice and payment, plaintiffs enclosed a letter stating that the Agreement was extended until September 6, 1988. However, the following month plaintiffs did not deliver an extension notice or payment until September 8, 1988, which was two days after the Agreement had expired. When defendants received the late notice and payment, they returned them and informed plaintiffs that the Agreement had terminated.

The majority takes the position that “paragraph 9 did not require plaintiffs to tender their notice and payment before the prior period ended” because “the Agreement failed to specify when such payment was due.” 215 Ill. App. 3d at 1070.

I respectfully submit that the majority position begs the question. It is crystal clear that the extension was to expire on September 6, 1988. In fact Prime, with its August notice and payment, enclosed a letter stating that the Agreement was extended until September 6, 1988. That date came and passed without delivery of either the extension notice or payment. This fact, under the unambiguous terms of the Agreement, effected a termination.

It seems axiomatic that an agreement, once terminated according to its express and unambiguous terms, cannot be later extended without the agreement of both parties. The very nature of an extension is to continue what is presently in effect. At the risk of being repetitive, I must again emphasize that the Agreement terminated before any attempt at an extension was made. The majority, in effect, causes resurrection of the Agreement under the guise of extension.

The majority opinion also states:

“Even assuming that the September payment was untimely, the result would not be termination. We reject the argument that the contract was terminated by the mere passage of time. Two provisions of paragraph 9 expressly required the plaintiffs-purchasers’ affirmative act to terminate the Agreement.
* * *
Plaintiffs here never informed defendants that the conditions were not met or that plaintiffs refused to waive the conditions, despite defendants’ request for a written waiver. *** By the Agreement’s own terms, it did not terminate.” 215 Ill. App. 3d at 1072-73.

With respect to this statement, I suggest that the majority opinion is mistaken.

Rudnick’s deposition exhibit No. 26 is a letter of August 5, 1988, from Robert Rudnick, vice-president and general counsel for Prime, to the defendants which states in relevant part as follows:

“Please be advised that, as of the date hereof, the conditions to Prime’s obligation under the Agreement have not been satisfied or waived. Furthermore, please be advised that, pursuant to paragraph 9 of the agreement, Prime hereby elects to extend the date during which such conditions must be satisfied by thirty (30) days. In connection [sic] such extension, I have enclosed herewith a check payable to Howard Pomper and Barbara Pomper in the amount of $5,000.00, which represents an ‘Extension Payment’ as that term is defined in paragraph 9 of the Agreement.
Based on my calculations, Prime now has until September 6, 1988 to satisfy the conditions set forth in the Agreement, and has the right to extend the period to satisfy the conditions by four (4) additional thirty-day periods.” (Emphasis added.)

Not only does this letter state that the conditions had not either been satisfied or waived, it also implies that Prime had until September 6, 1988, to either satisfy or waive the conditions or the Agreement would terminate.

Finally, I find that the conduct of the parties clearly evinced the intent that if the conditions were not either satisfied or waived prior to March 10,1988, the Agreement would terminate.

Under the Agreement, the time within which the conditions precedent could be satisfied or waived terminated on March 10, 1988. On March 9, 1988, the plaintiffs hand delivered a notice and payment for 30 days’ extension which was effective until April 9, 1988. The day before this extension expired, plaintiffs delivered another extension notice and payment which was effective until May 9, 1988. Plaintiffs delivered a timely extension notice and payment on May 9, 1988, as well as on June 8, 1988, July 8, 1988, and August 5, 1988. In the August extension notice, plaintiffs acknowledged that this extension period was effective until September 6, 1988. However, they did not deliver a notice and extension payment until September 8, 1988. On September 9, 1988, defendants returned the extension payment to plaintiffs and informed them that the Agreement had terminated. Because plaintiffs made six timely extension payments and also acknowledged that the August extension period expired on September 6, 1988, I submit that their conduct demonstrated that they construed the provisions of the Agreement to require that an extension payment and notice for subsequent extensions were due prior to the expiration of the current period.

For all the foregoing reasons, I would reverse the judgment of the circuit court.


author: JUSTICE HARTMAN

text:
    RICHARD SMITH, Plaintiff and Counterdefendant-Appellee, v. CHEMICAL PERSONNEL SEARCH, INC., Defendant and Counterplaintiff-Appellant.
    First District (2nd Division)
    No. 1—90—2080
    Opinion filed June 28, 1991.

      Rivkin, Radler, Bayh, Hart & Kremer, of Chicago (Irving B. Levinson and Mary E Licari, of counsel), for appellant.
    Walters & Walters, of Chicago (Carol A. Walters and Garry H. Walters, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Chemical Personnel Search, Inc. (CPS), appeals the dismissal of its counterclaim, which sought injunctive relief for plaintiff’s alleged breach of covenants not to compete. The issues presented on appeal are whether (1) plaintiff’s motion to dismiss the counterclaim was improperly brought under section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619); (2) CPS was collaterally estopped from seeking the relief outlined in its counter-claim; (3) CPS’ counterclaim failed to set forth a cause of action for injunctive relief; and (4) CPS should be granted leave to amend its counterclaim. We reverse and remand, for reasons which follow.

CPS is an Illinois corporation engaged in the business of recruiting prospective employees for placement with prospective employers. Plaintiff, Richard Smith, had been employed by CPS from 1982 to 1990. Smith left his employment with CPS in January 1990 and conducted business as a sole proprietor under the name ExecuTec Resources.

On March 2, 1990, Smith filed a complaint for declaratory relief against CPS, seeking nullification of a document entitled “Letter Agreement,” which Smith had signed on September 8, 1987. In consideration of Smith’s continued employment with CPS, the agreement provided generally that, for a one-year period following termination of employment, the former employee was prohibited from disclosing information about CPS’ clients and customers, hiring other CPS employees, and competing with the corporation within a 35-mile radius of the CPS office in which the employee last worked. By its terms, if the agreement was violated, CPS could seek injunctive relief against the employee, who would be liable for liquidated damages in the amount of $25,000. Smith also received $500 as consideration for signing the agreement.

On May 8, 1990, CPS filed a counterclaim against Smith, which sought injunctive relief and liquidated damages, and moved for a preliminary injunction. The counterclaim alleged that:

“(a) Smith has transacted employment agency business on behalf of ExecuTec with prospective employees and prospective employers with whom Smith had transacted such business on behalf of CPS.
(b) Smith has disclosed to ExecuTec and other third parties both the names of prospective employees and prospective employers with whom Smith had transacted employment agency business on behalf of CPS.
(c) Smith communicated, divulged and/or used for the benefit of ExecuTec, information, both oral and written, concerning CPS’ prospective employees and prospective employers to Ex-ecuTec, and other third parties.”

These acts were all alleged to have occurred within 35 miles of the CPS office in which Smith had worked. CPS claimed that it had already and would continue to suffer irreparable injury unless Smith was enjoined from further such acts.

On May 30, 1990, pursuant to section 2 — 619 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619), Smith filed a motion to dismiss the counterclaim, with a supporting memorandum but no affidavits, alleging generally that the counterclaim failed to state a cause of action; the letter agreement was overly broad and unduly restrictive; enforcement of the letter agreement was barred by collateral estoppel; and the liquidated damages clause was unenforceable because it constituted a penalty.

At the hearing on the motion to dismiss, the circuit court dismissed the counterclaim “on the basis of collateral estoppel as well as other [sic] stated in court’s oral opinion.” The court indicated:

“While I agree that I cannot say based on these pleadings that the geographical limitation is over broad and unduly restrictive, I can and I do find that propiretary [sic] information allegedly which gave rise to this agreement and the allegations contained in the complaint are woefully inadequate and unsatisfactory and unacceptable to the Court.”

CPS appeals the dismissal of its counterclaim.

I

CPS argues that Smith’s section 2 — 619 motion to dismiss improperly attacked the sufficiency of the allegations in the counterclaim. Section 2 — 619 authorizes dismissal of a complaint where it is barred by any of the grounds set forth therein, or by any other affirmative matter which defeats the claim. Ill. Rev. Stat. 1989, ch. 110, par. 2— 619(a).

Smith maintained generally that the counterclaim failed to state a cause of action and was barred by collateral estoppel. He also asserted in the supporting memorandum that the restrictive covenant was overly broad and unduly burdensome. The allegations pertaining to failure to state a cause of action should have been raised pursuant to section 2 — 615 of the Code. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 615; see Sutton v. Mytich (1990), 197 Ill. App. 3d 672, 676, 555 N.E.2d 93.) Collateral estoppel is a matter properly raised under section 2 — 619 (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(4)), as is the overbreadth as to time or location in a restrictive covenant (see Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9); Glass Specialty Co. v. Litwiller (1986), 147 Ill. App. 3d 653, 655, 498 N.E.2d 876). These types of “hybrid” procedures, which combine separate motions for joint analysis and determination, have been expressly disapproved and are discouraged. (See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406, 312 N.E.2d 605; Sutton, 197 Ill. App. 3d at 676.) In the interests of judicial economy, however, and if the respondent is not prejudiced by the improper combination of motions, reversal is not automatically required and the matter will be considered on its merits. (Mohr v. Arachnid, Inc. (1990), 201 Ill. App. 3d 984, 988, 559 N.E.2d 1098; Sutton, 197 Ill. App. 3d at 676.) Where prejudice is found, it usually occurs because the procedural confusion has prevented the respondent from submitting counteraffidavits or other material to contest a movant’s affirmative defenses. (4 R. Michael, Illinois Practice: Civil Procedure Before Trial §41.2, at 299 (1989); see Downers Grove Associates v. Red Robin International, Inc. (1986), 151 Ill. App. 3d 310, 314, 502 N.E.2d 1053.) CPS suffered no such prejudice in this case. The corporation had the opportunity to file counteraffidavits and did in fact contest the merits of Smith’s motion by filing a response. We do not approve of Smith’s “hybrid” motion; nevertheless, in the absence of prejudice and to avoid delay in this case, we will consider each of the issues presented.

II

The circuit court dismissed the counterclaim on the basis of collateral estoppel, concluding that the post-employment covenants in the letter agreement had been the subject of previous litigation.

The record contains two documents which relate to that determination. The first is an order entered in Chemical Personnel Search, Inc. v. Doyle (Cir. Ct. Cook Co.), No. 87 — CH—1966, dated April 29, 1987. That case, however, allegedly involved another employment agreement, entitled “Information Protection Agreement.” The second document is an order from Chemical Personnel Search, Inc. v. Lee (Cir. Ct. Cook Co.), No. 82-CH-1915, dated May 24, 1982. The order attached in that case simply denied rehearing and transferred the cause for reassignment. The record contains no other orders or transcripts from the previous two actions.

The doctrine of collateral estoppel prevents the litigation of the same issue twice. Under that doctrine, a former judgment bars only those questions actually decided in the prior suit. (Decatur Housing Authority v. Christy-Foltz, Inc. (1983), 117 Ill. App. 3d 1077, 1082, 454 N.E.2d 379.) It is essential that there shall have been a finding of a specific fact in the prior judgment or record that is material and controlling in the pending case. It must also conclusively appear that the matter of fact was so in issue that it was necessarily decided by the court rendering the judgment. If there is any uncertainty because more than one distinct issue of fact was presented, collateral estoppel will not apply. (Case Prestressing Corp. v. Chicago College of Osteopathic Medicine (1983), 118 Ill. App. 3d 782, 785, 455 N.E.2d 811; Decatur Housing Authority, 117 Ill. App. 3d at 1082.) The party asserting the preclusion bears the heavy burden of showing with clarity and certainty that the identical issue was decided in the prior case. Best Coin-Op, Inc. v. Paul F. Ilg Supply Co. (1989), 189 Ill. App. 3d 638, 661, 545 N.E.2d 481.

The orders entered in No. 87 — CH—1966 and No. 82 — CH— 1915, upon which Smith relies, contain no specific findings regarding the matters contested therein. The pronouncement in No. 87 — CH— 1966 did not, as Smith claims, relate to the nature and validity of the employment contract. The order simply disposed of a prior complaint for injunctive relief on the grounds of collateral estoppel. Similarly, there is no indication as to the issues that were decided in No. 82— CH — 1915. The order, which was presented as evidence of a former adjudication, does not refer to an employment contract or a restrictive covenant. Further, the contract allegedly involved in those two cases, although similar, is not identical to the letter agreement at issue in the case sub judice. Finally, because it does not appear on the face of the counterclaim that CPS was collaterally estopped from pursuing this cause of action, Smith should have filed an affidavit, or, at least, certified copies of his supporting documents. See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a); Hays v. Louisiana Dock Co. (1983), 117 Ill. App. 3d 512, 515, 452 N.E.2d 1383.

Smith has not shown with clarity and certainty that the identical issue was decided in previous litigation, and CPS’ counterclaim, therefore, is not barred by collateral estoppel.

Ill

Smith’s motion to dismiss alleged that CPS failed to state a cause of action for injunctive relief in its counterclaim. Although this allegation was raised under the aegis of section 2 — 619, failure to state a cause of action is a matter properly asserted through a section 2 — 615 motion. See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615; Sutton, 197 Ill. App. 3d at 676.

CPS claims on appeal that it adequately pleaded a cause of action for injunctive relief in its counterclaim. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiff to recover. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224.) A well-pleaded complaint for injunctive relief must contain on its face facts which establish the right to such relief in a positive, certain, and precise manner. (Sadat v. American Motors Corp. (1984), 104 Ill. 2d 105, 116, 470 N.E.2d 997.) The factual allegations must establish specifically the protectible interest for which there is no adequate remedy at law and that irreparable injury will result if the relief is not granted. Hamer Holding Group, Inc. v. Elmore (1990), 202 Ill. App. 3d 994. 1006-07, 560 N.E.2d 907.

The question of the enforceability of a restrictive covenant is a matter of law which depends upon the reasonableness of its terms. (PCx Corp. v. Ross (1988), 168 Ill. App. 3d 1047, 1056, 522 N.E.2d 1333.) Because post-employment restrictive covenants operate, in a sense, as partial restraints of trade, they are scrutinized carefully by courts to ensure that their intended effect is not the preclusion of competition per se. (PCx Corp., 168 Ill. App. 3d at 1056.) The basic test is whether the terms of the restriction are reasonable and necessary to protect a legitimate business interest of the employer, a determination which necessarily turns on the facts and circumstances of each case. (McRand, Inc. v. Van Beelen (1985), 138 Ill. App. 3d 1045, 1051, 486 N.E.2d 1306.) To prove such a legitimate business interest, Illinois courts require that the employer have a near permanent relationship with its customers, and that but for the employment, the employee would not have had contact with the customers. Agrimerica, Inc. v. Mathes (1990), 199 Ill. App. 3d 435, 443, 557 N.E.2d 357, appeal denied (1990), 135 Ill. 2d 553.

A motion which objects to pleadings, however, “shall point out specifically the defects complained of, and shall ask for appropriate relief.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615(a).) If it fails to point out specifically the defects complained of and to ask for such relief as the nature of the defects may make appropriate, the motion is insufficient in law and will not be entertained by the court. (Hitchcock v. Reynolds (1935), 278 Ill. App. 559, 562-63.) Similarly, grounds not specified in the motion to dismiss cannot be urged on appeal. (Admiral Oasis Hotel Corp. v. Home Gas Industries, Inc. (1965), 68 Ill. App. 2d 297, 304, 216 N.E.2d 282.) A movant is required to point out defects in pleadings so that the complainant will have an opportunity to cure them before trial. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 422, 430 N.E.2d 976.

Here, Smith’s motion to dismiss, in alleging failure to state a cause of action, sets forth general and conclusory allegations insufficient to support a section 2 — 615 motion to dismiss and fails to point out specifically the defects in the counterclaim. CPS, therefore, was not apprised of the particular shortcomings in its pleading which an amendment might have redressed. Although many of the allegations in CPS’ counterclaim lack specificity, we hold that Smith’s “hybrid” motion to dismiss did not conform to the requirements of section 2 — 615.

Consequently, CPS should have been granted leave to amend its counterclaim. Amendments to pleadings should be allowed in the interest of having cases decided on their merits rather than on technicalities. (Summar v. Indiana Harbor Belt R.R. Co. (1986), 147 Ill. App. 3d 851, 856b, 515 N.E.2d 130.) Although the right to amend a complaint is not absolute (Baker v. Walker (1988), 173 Ill. App. 3d 836, 841, 528 N.E.2d 5), the most important consideration in determining whether an amendment should be allowed is whether it will be in furtherance of justice (Weldon v. Hawkins (1989), 183 Ill. App. 3d 525, 534, 539 N.E.2d 229). Doubts should be resolved in favor of the allowance of the amendment. Board of Education, School District No. 15 v. Fred L. Ockerlund, Jr. & Associates, Inc. (1988), 165 Ill. App. 3d 439, 444, 519 N.E.2d 95.

It is true, as Smith argues, that a party’s failure to submit a proposed amendment to the court or include it in the record on appeal waives the right to review the circuit court’s denial of the motion to file an amended complaint. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 521, 513 N.E.2d 387.) A proposed written amendment, however, while desirable, is not crucial where the record reveals that the movant articulated the substance of the amendment and the reasons therefore to the court in such a manner that the materiality of the proposed alteration is made plain to the court or in the proceedings. Baker, 173 Ill. App. 3d at 842.

Following dismissal of the counterclaim at the hearing, counsel for CPS orally inquired whether leave would be granted to amend its pleading. The circuit court indicated that its finding was final and appealable, and did not grant leave to amend. On appeal, CPS contends that additional facts contained in its response to Smith’s motion to dismiss the counterclaim should have been considered as supplemental to the allegations in its counterclaim. In that filing, CPS asserted that it had near-permanent and long-standing relationships with its customers. The response also generally sets forth the time, cost, and degree of difficulty involved in acquiring its clientele. These factors indicate that CPS was seeking to protect a legitimate business interest. (See Agrimerica, Inc., 199 Ill. App. 3d at 444.) It appears, therefore, that CPS is able to plead facts sufficient to state a cause of action for breach of a restrictive covenant. We conclude that the circuit court abused its discretion in not allowing CPS leave to amend its counterclaim. See Shugan v. Colonial View Manor (1982), 107 Ill. App. 3d 458, 462, 437 N.E.2d 731.

For the foregoing reasons, the judgment of the circuit court is hereby reversed and the cause is remanded for further proceedings in accordance with this decision.

Reversed and remanded.

SCARIANO, P.J., and COCCIA, J., concur.

       The combined motion here would not satisfy new section 2 — 619.1 (Ill. Rev. Stat., 1990 Supp., ch. 110, par. 2 — 619.1), since it lacks the requisite specificity and separateness.


author: JUSTICE RIZZI

text:
    PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Plaintiff-Appellee, v. ALBERT KERWIN et al., Defendants-Appellants (Tore G. Leno, Defendant).
    First District (3rd Division)
    No. 1—89—1485
    Opinion filed June 12, 1991.

      Pappas, Power & Marcus, of Chicago (Debra K. Marcus, William R. Power, and Stephen J. Tasch, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Katherine S. Dedrick, Jeffrey A. Siderius, and Kathryn A. Spalding, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff Prudential Property & Casualty Company (Prudential) brought a declaratory judgment action against defendants Albert and Patricia Kerwin and its insured, defendant Tore G. Leno. In an underlying personal injury suit, Albert and Patricia Kerwin alleged that Leno negligently or intentionally shot Albert Kerwin and that they were entitled to compensatory and punitive damages. In its declaratory judgment action Prudential sought a declaratory judgment that its homeowners insurance policy did not afford coverage to Leno for the injuries claimed to have been suffered by Albert and Patricia Kerwin. Prudential’s complaint for declaratory judgment alleged that no coverage exists because Leno’s act was expected or intentional and therefore excluded under the policy, and that claims for punitive damages are not covered by the policy. The circuit court granted Prudential’s motion for summary judgment on the basis that Leno’s act was intentional. The circuit court also ruled that punitive damages are not covered under the policy. Albert and Patricia Kerwin have appealed. We affirm.

On March 30, 1985, Leno, age 38, left his house at 4 p.m. and went to Rick’s Lounge in Chicago. After drinking scotch and coke for several hours, he left Rick’s Lounge and proceeded to Yesterday’s Lounge, where he continued to drink scotch and coke. After leaving Yesterday’s Lounge with a companion, Leno stopped at another lounge where he met his son. Leno, his companion, and his son left the lounge and proceeded to Lizzio’s Tavern. Leno does not recall at what time he arrived at Lizzio’s Tavern.

At approximately 3 a.m., Albert and Patricia Kerwin were walking towards the parking lot near Lizzio’s Tavern when they encountered Leno standing about 10 feet away, near the door to the tavern. Leno was very intoxicated. Words were exchanged between Leno and the Kerwins. Leno said something derogatory to Patricia Kerwin. Albert Kerwin responded by saying, “Fuck you jack off!” Leno pulled out a pistol which he sometimes carried with him while working as a self-employed carpenter. He fired at Albert Kerwin, striking him in the lower chest. Albert Kerwin was hospitalized for 30 days and required several surgical procedures for his injury.

Leno testified at his deposition that he was so intoxicated that he does not recall either the events leading up to the shooting or the shooting itself. Leno further testified that he had not previously met either Albert or Patricia Kerwin, and he does not know why he shot Albert Kerwin.

Leno was charged with two counts of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4) and armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A — 2). He pled guilty to one count of aggravated battery, and all other charges were dropped. Pursuant to his guilty plea, Leno was sentenced to 30 months’ probation.

On October 8, 1985, Albert and Patricia Kerwin filed a personal injury action against Leno for the damages they suffered as a result of the shooting incident. They alleged that Leno had acted negligently or intentionally when he shot Albert Kerwin. Patricia Kerwin also alleged that Leno was liable for negligent infliction of emotional distress, loss of consortium and damages for which she may be responsible under the family expense statute. Ill. Rev. Stat. 1983, ch. 40, par. 1015.

Prudential first became aware of the shooting incident and the personal injury action on April 8, 1986, when it was informed by the Kerwins’ attorney. At that time, Leno was represented in the personal injury action by his personal attorney, Robert Stevenson. On April 30, 1986, Prudential sent Stevenson and Leno a reservation of rights letter by certified mail. The letter informed Leno that he may not be entitled to any rights or benefits under his policy and that Prudential may not have any duty or obligation under the policy because the policy specifically excluded coverage for bodily injury which is “expected or intended by the insured.” The letter also informed Leno that the policy did not afford coverage for punitive damages. In addition, the letter informed Leno that the policy required written notice of the occurrence and the lawsuit “as soon as practicable,” and that he therefore had not complied with the policy’s notice requirements. Finally, the letter informed Leno that it had hired the law firm of McKenna, Storer, Rowe, White & Farrug (McKenna, Storer) to provide a defense for him on the negligence counts of the personal injury action, subject to Prudential’s reservation of rights.

Stevenson responded by advising Prudential and McKenna, Storer that Leno’s defense in the personal injury suit was not being tendered to Prudential and that Prudential should not pay any defense fees on behalf of Leno. Later, in December 1986, Stevenson advised Prudential that Leno was not tendering his defense to Prudential because the shooting was intentional. On January 7, 1987, however, Stevenson requested Prudential to pay his attorney fee for representing Leno in the personal injury suit. Stevenson repeated, however, that Leno’s defense was not being tendered to Prudential. Prudential then agreed to pay Stevenson’s attorney fee, and requested that Stevenson keep it apprised of the status of the personal injury suit. McKenna, Storer did not file an appearance on behalf of Leno in the personal injury suit, and it closed its file in April of 1987. Stevenson continued to represent Leno in the personal injury suit.

On April 2, 1987, Prudential filed the declaratory judgment action sub judice. On September 25, 1987, a default judgment order was entered against Leno in the personal injury suit. On November 18, 1987, a default judgment was entered in favor of Albert Kerwin for $300,000 and in favor of Patricia Kerwin for $50,000. Prudential did not learn of the default judgment until January 1988.

The default judgment has not been vacated. Prudential, however, moved for a summary judgment in the declaratory judgment action. On May 10, 1989, the trial court granted summary judgment in favor of Prudential on the basis that the shooting of Albert Kerwin was not covered under Prudential’s policy because the shooting was an intentional act. The trial court also ruled that punitive damages are not covered under the policy. The Kerwins admit that Prudential’s policy did not afford coverage for an award of punitive damages.

The Kerwins first contend that the facts are not sufficient to establish as a matter of law that Leno intended to “injure Albert Kerwin pursuant to Prudential’s Intentional Act Policy Exclusion.” We disagree.

The facts that led to the shooting are not in dispute. Leno insulted Patricia Kerwin. Albert Kerwin responded by shouting an obscenity at Leno. Leno drew a gun, and then pointed it at Albert Kerwin and shot him while he was only 10 feet away. Albert Kerwin was not armed, and there was no physical threat to Leno. There is nothing to suggest that the gun was accidentally discharged. Plainly, the undisputed facts leave no doubt that Leno intended to injure Albert Kerwin.

The Kerwins argue, however, that Leno had a right to explain his guilty plea to aggravated battery and that the trial court therefore erred in accepting the guilty plea as conclusive evidence of Leno’s intent to shoot Albert Kerwin. A person commits a battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual. (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 3.) A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery. Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4.

Although a plea of guilty in a criminal case is subject to explanation in a related civil case, in the present case Leno’s guilty plea to aggravated battery merely corroborates the uncontradicted facts of the shooting as established by the summary judgment proceedings. It follows that although Leno would have had a right to explain his guilty plea in the event of a trial in a civil case, that fact in itself did not cause a question of fact to surface in the proceeding for summary judgment. Where the factual circumstances in the civil case compel a conclusion, as a matter of law, that an insured’s act was intended, a summary judgment is properly entered in favor of the insurer whose policy excludes coverage for intended acts. Summary judgment is not precluded because the insured’s plea of guilty in a related criminal case corroborates the facts that are established in the summary judgment proceeding. (See Bay State Insurance Co. v. Wilson (1983), 96 Ill. 2d 487, 492, 494, 451 N.E.2d 880, 882.) The Kerwins’ argument is therefore without merit.

The Kerwins next argue that there is a question of fact as to whether the shooting was intentional because Leno’s intoxication was so extreme. It is the Kerwins’ theory that an insured’s voluntary intoxication can nullify an insurance policy exclusion for intentional acts. We disagree.

In criminal cases, it is an affirmative defense if a defendant’s voluntary intoxication is so extreme as to suspend the power of reason and to render him incapable of forming a specific intent which is an element of the offense. (Ill. Rev« Stat. 1989, ch. 38, pars. 6 — 3, 6 — 4.) The Kerwins wish to make a quantum transition from voluntary intoxication being an affirmative defense to a specific intent crime, to voluntary intoxication relieving citizens from the consequences of their acts in civil cases. We reject the Kerwins’ attempted transition of an affirmative defense of criminal law to civil law.

Plainly, in civil cases it would be against public policy to relieve citizens of the consequences of their acts based upon their voluntary intoxication. It follows that an insured cannot be heard to argue that he did not intend to do an otherwise intentional act on the basis that he was voluntarily intoxicated and thereby claim coverage under an insurance policy that excludes coverage for intentional acts. The law cannot be perverted to reach a result which would be inimical to public policy.

Moreover, when dealing with exclusions in insurance policies, the court’s primary purpose is to give effect to the intention of the parties as expressed by the words that are used in the policy. The words that are used will ordinarily be interpreted according to their plain and popular sense. Here, the exclusion in the policy states that coverage does not apply to bodily injury which is “intended by the insured.” In the plain and popular sense, a person intends the consequences of his acts while voluntarily intoxicated if the acts are otherwise intentional. Thus, since the act of shooting in the present case was otherwise intentional, Leno’s voluntary intoxication cannot be held to make the shooting unintentional. We therefore give effect to the intention of the parties to the insurance policy by holding that the bodily injury from the shooting was intended by Leno and that Leno’s act was excluded from coverage under the policy.

The Kerwins next contend that there is a conflict of interest between Prudential and Leno because the Kerwins charged that the shooting by Leno was negligent or intentional, and that Prudential is estopped from asserting any policy defenses because Prudential violated the conflict of interest principles expounded in Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079, and Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335. In Thornton and Urso, the supreme court held that where there is a conflict of interest between an insured and the insurer, the insurer must not participate in the insured’s defense but it must pay for the insured’s defense and the fee for the insured’s personal attorney.

The Kerwins argue that Prudential is estopped from asserting any policy defense because Prudential had hired McKenna, Storer to represent Leno when Prudential advised Leno that there was a possible conflict of interest between Prudential and Leno. The record is clear, however, that Leno never agreed to have McKenna, Storer represent him and Leno never tendered his defense to McKenna, Storer. Also, McKenna, Storer never filed an appearance on behalf of Leno in the personal injury suit. Thus, McKenna, Storer did not participate in Leno’s defense. Prudential, however, paid for Leno’s defense and paid the fee for Leno’s personal attorney. Under the circumstances, the Kerwins’ argument is without merit.

The Kerwins also argue that Prudential is estopped from asserting any policy defense because Prudential asked Leno’s personal attorney to keep it advised of the status of the personal injury suit. At no time, however, did Prudential participate in the defense of the personal injury suit, nor did Prudential tell Leno’s personal attorney what to do in defending the personal injury suit. As a result, Prudential did not violate the principles set forth in Thornton and Urso. An insurer does not violate the principles of Thornton and Urso by simply being kept advised of the status of the underlying action by an insured’s personal attorney.

The Kerwins also argue that “the question of whether the insured has been prejudiced by the insurer’s conduct is a question of fact,” and therefore summary judgment was improperly entered. This argument has no merit because there is nothing in the record to demonstrate that Leno did not control his own defense or that Prudential participated in the defense itself. Thus, no question of fact has surfaced as to Leno being prejudiced by Prudential’s conduct. The Kerwins’ argument is therefore untenable.

The next contention on appeal is made solely by Patricia Kerwin. She contends that Leno’s insurance policy should cover “her cause of action for negligent infliction of emotional distress.” This contention has no merit because the alleged cause of action is based on Leno’s intentional act of shooting Albert Kerwin, for which there is no coverage under Leno’s insurance policy. Since Leno’s act is not covered by the policy there is no basis for affording coverage under the policy to Patricia Kerwin’s alleged cause of action for negligent infliction of emotional distress resulting from the shooting of Albert Kerwin.

In addition, Prudential alleged in its complaint for declaratory judgment that Leno breached the notice conditions of the policy. In view of our conclusions on the other issues, however, we do not address that issue.

Accordingly, the summary judgment in favor of Prudential is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


author: PRESIDING JUSTICE CERDA

text:
    FIRST OPTIONS OF CHICAGO, INC., Plaintiff-Appellant, v. TINA STELLINGS, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—3024
    Opinion filed June 12, 1991.

      Gardner, Carton & Douglas, of Chicago, for appellant.

      Kusper & Raucci, Chartered, of Chicago, for appellee.
   PRESIDING JUSTICE CERDA

delivered the opinion of the court:

Plaintiff, First Options of Chicago, Inc., appeals from the dismissal of counts I and II of its complaint for judicial sale or partition of real property held in a land trust of which it and defendant, Tina Stellings, each owned a 50% beneficial interest. Plaintiff argues that: (1) because the parties were at a deadlock and because plaintiff’s assignor could have forced a sale, the trial court erroneously concluded that as a matter of law plaintiff was not entitled to a judicial sale; (2) the denial of the request for a judicial sale was grossly inequitable and plaintiff was thereby deprived of its legal rights as a property owner; (3) the trial court misapplied the exhaustion of remedies doctrine; (4) the trial court erroneously ruled that plaintiff was not entitled to a partition sale; and (5) the trial court’s rulings were contrary to public policy.

Plaintiff filed a verified complaint which sought a judicial sale, or in the alternative, a partition sale, of land trust property. Plaintiff alleged that it was a Delaware corporation and that defendant was an individual residing at 1112 Franklin Avenue, River Forest, Illinois. On July 9, 1976, this residence was put into a land trust with River Forest State Bank and Trust Company as trustee of trust number 2124. Defendant and Leon Stellings as joint tenants were the beneficiaries of the land trust.

Under the land trust agreement, the “right in the avails” of the real property was deemed personal property and no beneficiary had “any right, title or interest in or to any portion of said real estate as such, either legal or equitable.” The beneficiaries had the “power of direction to deal with the title to said property and to manage and control said property” and the right to receive the proceeds from the real property. The beneficiaries also were to have “the management of said property and control of the selling, renting and handling thereof” and were to “collect[,] apply and handle the rents, earnings, avails and proceeds thereof.” The trustee was to have “no duty in respect to such management or control, or the collection, handling or application of such rents, earnings, avails or proceeds, or in respect to the payment of taxes or assessments or in respect to insurance, litigation or otherwise, except on written direction as hereinabove provided.” Additionally, the land trust agreement provided that the power of direction was lodged in “Leon Stellings and Tina Stellings, or the survivor of the two should one decease” or other persons who from time to time became beneficiaries.

Plaintiff further alleged that on August 17, 1988, it filed an action against Leon Stellings to recover damages arising from options trading losses he suffered. On October 5, 1988, judgment was entered in favor of plaintiff against Leon Stellings for $1,188,878.28, and on September 6, 1989, an order was entered directing Leon Stellings to assign his 50% beneficial interest in the land trust to the sheriff of Cook County for an execution sale. The beneficial interest was offered for sale at a public sale at which plaintiff was the highest bidder for a price of $160,000. Plaintiff and defendant then each owned 50% of the beneficial interest in the land trust as tenants in common.

Count I alleged the following. Since January 1, 1989, defendant had not paid any real estate taxes or homeowner’s insurance and had maintained full and exclusive use and enjoyment of the trust property. Plaintiff insured the trust property and would be responsible for a proportionate share of the real estate taxes. Plaintiff had received no use and enjoyment of the trust property. Plaintiff and defendant had divergent interests concerning the use, management, and control of the trust property because plaintiff wished to sell it whereas defendant wished to continue to reside there. Plaintiff prayed for a sale of 100% of the beneficial interest in the land trust so that the parties could realize the benefit of their 50% interests.

Count II requested a partition sale pursuant to statute (Ill. Rev. Stat. 1989, ch. 110, par. 17 — 101 et seq.). Plaintiff alleged that as a tenant in common, it was entitled to compel partition of the land trust property and that, because the real property could not be divided by partition without manifest prejudice to the interested parties, plaintiff was entitled to a sale of 100% of the beneficial interest in the trust and the real property held subject to the trust.

Defendant filed a motion to strike and dismiss the complaint. The court ruled that plaintiff had no right to a judicial sale or partition and dismissed both counts.

Plaintiff argues on appeal that the parties are in a deadlock over the management and control of the trust property and that therefore the most appropriate solution is a judicial sale. Plaintiff relies on the inherent power of a chancery court to fashion a remedy to do justice and upon the following two cases in which the beneficial interests in land trusts were ordered sold.

In Regas v. Danigeles (1964), 54 Ill. App. 2d 271, 277-81, 203 N.E.2d 730, a judicial sale of the beneficial interests in a land trust was ordered in the context of a business deadlock over the management of a building on the basis that the situation called for equitable relief. In Davis v. Kurtz (1988), 165 Ill. App. 3d 417, 518 N.E.2d 1297, property had been purchased by plaintiff and defendant and placed into a land trust in contemplation of forming a business but it was later learned that plaintiff was legally prevented from owning an interest in that particular type of business. Defendant managed the business, and, on the basis of unjust enrichment and restitution, the trial court severed the parties’ joint interest in the land trust, gave defendant the option to purchase plaintiff’s interest in the property, and ordered a judicial sale as an alternative if defendant did not purchase plaintiff’s interest in the property. The order of the judicial sale as an alternative was affirmed as a proper exercise of judicial discretion. Davis, 165 Ill. App. 3d at 421.

Defendant cites Prassas v. Nicholas W. Prassas & Co. (1981), 94 Ill. App. 3d 311, 316, 418 N.E.2d 904, in which a public sale of land trust beneficial interests was refused because of the absence of a deadlock in business management.

A business dispute does not exist in the instant case, but plaintiff argues that a similar type of deadlock exists here because it has been excluded from possession of the trust property, has received no use and enjoyment of it, and because only one beneficial owner wants to sell the trust property. But plaintiff did not allege in the complaint that it wanted possession or other use of the trust property; therefore, the only possible basis to find a deadlock is that plaintiff wants to sell the trust property whereas defendant does not so desire. Since the land trust agreement required both beneficiaries to join in the power of direction, it may be assumed that the parties desired to impair the other from forcing a sale, transfer, or encumbrance of the marital home. Therefore, requiring a sale would significantly reduce defendant’s rights and would give plaintiff rights greater than the party in whose shoes it stands.

Plaintiff and defendant do not have a legal or equitable interest in real property; they each have only a 50% beneficial interest in the land trust, which is considered personal property. (Patrick v. Village Management (1984), 129 Ill. App. 3d 936, 939, 473 N.E.2d 493.) But, under the land trust agreement provision that gives the beneficiaries the power of direction to deal with the title, plaintiff and defendant have the power to direct the trustee to sell the trust property.

Despite the disagreement over whether the trust property should be sold, it would not be equitable to order a judicial sale because, unlike the cases in which business associates had voluntarily purchased the subject property together, defendant shared ownership with plaintiff involuntarily. It was possible or even likely that defendant would desire to remain in her residence, and plaintiff knew that it was voluntarily purchasing only an equal percentage of the beneficial interest so that it would not have a controlling interest. Under such circumstances, the refusal of the trial court to order a judicial sale pursuant to its general equitable powers was proper. Contrary to plaintiff’s contention, it is not without a remedy. This court does not preclude plaintiff from initiating an action for accounting between beneficiaries for an apportionment of the value of use and occupancy.

Plaintiff also argues that a judicial sale should have been ordered because Leon Stellings could have forced such a sale and because plaintiff was the assignee of all of Leon Stellings’ rights and interest. Plaintiff relies upon defendant’s alleged admission in the trial court that Leon Stellings would have had the right to a judicial sale of the entire beneficial interest if he had still owned the 50% interest.

A judicial admission is a formal act of a party or his attorney in court that dispenses with proof of a fact claimed to be true. (Malauskas v. Tishman Construction Corp. (1980), 81 Ill. App. 3d 759, 761, 401 N.E.2d 1013.) A judicial admission has also been defined as a deliberate, clear, and unequivocal statement by a party regarding a concrete fact within that party’s peculiar knowledge where the information upon which the admission was based was uniquely within the personal knowledge of the person making it. Kirby v. Jarrett (1989), 190 Ill. App. 3d 8, 15, 545 N.E.2d 965.

Defendant’s counsel’s response to the trial court’s question whether Leon Stellings could have brought a partition action was that he probably could have brought such an action because he was married to the other beneficiary. The statement was not a binding admission of a fact but was a legal conclusion. Plaintiff does not otherwise argue how Leon Stellings could have forced a judicial sale of the beneficial interest and therefore the argument that plaintiff had the right as assignee to force a judicial sale is rejected.

The refusal of the trial court to order a partition sale pursuant to statute also was proper. The statute permitting partition provides in part:

“When lands, tenements, or hereditaments are held in joint tenancy or tenancy in common, whether such right or title is derived by purchase, legacy or descent, or whether any or all of the claimants are minors or adults, any one or more of the persons interested therein may compel a partition thereof by a verified complaint in the circuit court of the county where the premises or part of the premises are situated.” (Ill. Rev. Stat. 1989, ch. 110, par. 17-101.)

The statute is declaratory of the law that existed before the enactment of the statute because partition was permissible at common law. See Harris v. Ingleside Building Corp. (1939), 370 Ill. 617, 621, 19 N.E.2d 585 (predecessor of statute which was essentially the same in substance to the statute at issue was declaratory of common law).

Plaintiff argues that it is entitled to a partition sale even though the Illinois Supreme Court has held that beneficial owners of a land trust are not entitled to partition (e.g., Breen v. Breen (1952), 411 Ill. 206, 213, 103 N.E.2d 625). Plaintiff relies on Carlyle v. Jaskiewicz (1984), 124 Ill. App. 3d 487, 464 N.E.2d 751, as an example of later authority in which a partition sale of land trust property was ordered at the request of a 50% beneficial owner. Although real property held in a land trust was sold pursuant to a request for partition, the propriety of partition was not an issue in the case.

Plaintiff also argues that the court has the general equitable power to provide a remedy and that there is no logical reason to retain the rule that a joint owner of legal title to real property has the right of partition while the owner of a beneficial interest in a land trust does not have the right of partition because the rule places an unreasonable disadvantage on those who choose the land trust form of property ownership.

The general rule is that a land trust beneficial owner generally cannot obtain partition of the land trust property because it has neither legal nor equitable title to the real property. (Breen, 411 Ill. at 213.) We cannot ignore this precedent, and we find that the inability to obtain partition is not unfair because the land trust confers the advantage of transforming a real property interest into a personal property interest.

Plaintiff argues that the rulings of the trial court were contrary to public policy because they in effect relegated judgment creditors to second class status. The status of plaintiff as a judgment creditor is not the reason for the denial of its requests. Rather, partition generally is not available to any owner of a beneficial interest in a land trust, and a judicial sale was not equitable because the other owner had no choice in becoming a tenant in common with plaintiff whereas plaintiff voluntarily purchased a 50% beneficial interest.

Plaintiff also argues that the trial court erred in finding that it had exhausted its remedies in forcing the sale of Leon Stellings’ beneficial interest. It is the result, and not the reasoning of the trial court, that is to be reviewed on appeal. (Material Service Corp. v. De partment of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9.) As already discussed, the refusal to order a judicial sale or partition was properly denied for other reasons. Therefore, the exhaustion of remedies issue need not be addressed.

The judgment of the trial court refusing to order a judicial sale or partition is affirmed.

Affirmed.

WHITE and GREIMAN, JJ., concur.