author: JUSTICE GOLDE NHERSH

text:
    BORG-WARNER LEASING, INC., Plaintiff-Appellee, v. DONALD W. BAUER, Defendant-Appellant and Third-Party Plaintiff (First National Bank of Effingham, Third-Party Defendant).
    Fifth District
    No. 5—88—0277
    Opinion filed October 3, 1989.

      Donald W. Bauer, of Altamont, appellant pro se.

    Lou J. Viverito, of Taylor Law Offices, P.C., of Effingham, for appellee.
   JUSTICE GOLDE NHERSH

delivered the opinion of the court:

Defendant, Donald Bauer, appeals from an order of the circuit court of Effingham County granting plaintiff’s, Borg-Warner Leasing’s, motion for summary judgment. Defendant raises several issues on appeal but the crux of these issues is whether the circuit court erred when it granted summary judgment for plaintiff. This court affirms.

It is well established that a motion for summary judgment should be granted if the record discloses that there is no genuine issue of material fact and that the moving party is therefore entitled to judgment as a matter of law. (Economy Fire & Casualty Co. v. Kubik (1986), 142 Ill. App. 3d 906, 908, 492 N.E.2d 504, 506.) The purpose of the summary judgment is not to try an issue of fact but to determine whether a triable question of fact exists. (Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 495-96.) The use of summary judgment is an aid in the expeditious disposition of a lawsuit, but it is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) In considering whether a genuine issue of fact is present, evidence must be construed strictly against the moving party, and if more than one (Conclusion or inference may be drawn from facts, the motion for summary judgment should be denied even if there is no dispute as to the evidence. Miller v. Clark Wood Construction Co. (1986), 151 Ill. App. 3d 723, 725, 502 N.E.2d 1061, 1062.

Defendant raises several errors. He argues that the complaint failed to state a cause of action because it failed to allege that plaintiff has done everything that the terms of the lease agreement or lease contract requires of it. Defendant states that in stating a cause of action for breach of contract, the plaintiff must allege the existence of the contract, the plaintiffs performance of all contractual obligations required of him, the facts constituting the alleged breach and the existence of damages resulting from the breach, citing Segall v. Berkson (1985), 139 Ill. App. 3d 325, 332, 487 N.E.2d 752, 757. In this case, defendant argues that plaintiff failed to allege that it had done all that was required of it by the terms of the lease contract.

This court finds that plaintiff did allege all the elements for a breach of a lease contract. Plaintiff alleged in both counts of its complaint that there was a contract to lease for that specific farm equipment. Both counts contained allegations regarding the dates of the contracts, the payment schedule and when defendant defaulted on each contract. Plaintiff stated the terms of the contract regarding default and what attempts plaintiff made under the default provisions of the contract. Plaintiff also alleged that it sent a notice to defendant which stated that all rental payments under the lease contract were due and payable by a certain date. Plaintiff alleged the amount of rental due and owing under each contract. Plaintiff also alleged damages recoverable pursuant to the lease contract in its prayer for relief.

In light of the type of contract, plaintiff has alleged all the necessary elements to state a cause of action for breach of that contract. Plaintiff acquired and leased certain farm equipment to defendant. Defendant was to pay a certain sum for each piece of equipment on a set date annually. When defendant failed to pay that amount in two consecutive years, plaintiff’s only obligation under the contract was to seek redress. This court finds that plaintiff has alleged with specificity that it has performed all of its obligations pursuant to the lease agreement. Furthermore, “[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he *** is called upon to meet.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 612(b); Pieszchalski v. Oslager (1984), 128 Ill. App. 3d 437, 443, 470 N.E.2d 1083, 1089.

In Pieszchalski, the court noted that the party arguing the pleading defect had filed an answer to the complaint making no reference to the pleading issue, filed interrogatories, petitioned for a change of venue, and filed a motion to dismiss which was denied.

In this case, defendant filed an unverified answer on November 5, 1985, and on December 17, 1987, filed a verified answer. In both answers, defendant made no reference to the pleading issue. Later, defendant filed interrogatories on July 6, 1986, August 22, 1986, and November 5, 1988. On May 26, 1987, and February 8, 1988, defendant filed a motion for change of venue. On October 13, 1987, defendant filed a motion for leave to withdraw the original answer and file amended and further answers and affirmative defenses. On November 2, 1987, defendant filed a motion to dismiss. This court finds that in light of the complaint and the attached exhibits, as well as defendant’s answers and motion, the trial court finding was not contrary to the law or against the preponderance of the evidence. Defendant’s argument is without merit.

Defendant also argues that the trial court abused its discretion by granting summary judgment because there were genuine issues of fact to be tried. Defendant specifically argues that the notice of sale and the sale of the grain bin was unconscionable and in violation of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 1— 101 et seq.). However, after reading the entire record, this court finds defendant’s argument without support.

The lease contract at issue is a true lease, not a lease intended as security, and as such is not subject to the Uniform Commercial Code. The lease agreement provisions provided: (a) that defendant was to return the equipment to plaintiff at end of lease; (b) that defendant did not have an option to purchase the equipment; (c) that the equipment was the sole and exclusive property of plaintiff; (d) that only plaintiff could assign its rights under the lease. In re Loop Hospital Partnership (N.D. Ill. 1983), 35 Bankr. Rep. 929; Ill. Rev. Stat. 1987, ch. 26, pars. 1-201(37), 9-105(l)(m).

In light of this court’s findings, this court need not address defendant’s last two issues: whether the sale of the grain bin was commercially reasonable and whether plaintiff met its burden of proof of the reasonableness of the sale of the grain bin. The sale at issue was not governed by the Uniform Commercial Code.

For the foregoing reasons, the order of the circuit court of Effing-ham County is affirmed.

Affirmed.

WELCH, P.J., and RARICK, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    SCOTT DUNAWAY et al., Minors, by Barbara Dunaway, their Mother and Next Friend, and Barbara Dunaway, Indiv., Plaintiffs-Appellants, v. ASHLAND OIL, INC., et al., Defendants (Long, Rabin & Young, Ltd., Appellants; Douglas C. Lambert et al., Defendants-Appellees).
    Fifth District
    No. 5—87—0792
    Opinion filed October 3, 1989.

      Duane D. Young, of Long, Rabin & Young, Ltd., of Springfield, and Paul J. Bargiel, P.C., of Chicago, for appellants.
    Patrick J. Hitpas and T. Fritz Levenhagen, both of Patrick J. Hitpas, P.C., of Carlyle, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiffs brought a multicount complaint against multiple defendants seeking recovery for personal injury, loss of consortium, and expenses, arising out of an explosion which occurred in Centraba, Illinois. On March 6, 1987, summary judgment was granted in favor of the defendants, Douglas and Judy Lambert. On April 1, 1987, the Lamberts filed a motion for attorney fees and costs pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611), against both the plaintiffs and their attorneys. Subsequently, plaintiffs filed a response to defendants’ motion and moved that attorney fees be assessed against the defendants under section 2 — 611. The circuit court denied plaintiffs’ motion for section 2 — 611 sanctions and granted defendants’ motion for section 2 — 611 sanctions against plaintiffs’ attorneys. On appeal plaintiffs challenge the court’s order as to both section 2 — 611 rulings. The defendants have filed a motion to dismiss plaintiffs’ appeal.

Defendants’ motion to dismiss raises the issue of this court’s jurisdiction of this appeal. Defendants cite the recent second district case of Sherman Hospital v. Wingren (1988), 169 Ill. App. 3d 161, 523 N.E.2d 220, in support of their argument that since the trial court imposed section 2 — 611 sanctions only on plaintiffs’ attorneys and not on plaintiffs themselves and that since the ruling did not prejudice any right of the plaintiffs and a reversal of the ruling would not benefit plaintiffs in any manner, plaintiffs lack standing to appeal the imposition of sanctions against their attorneys. Defendants concede that plaintiffs’ attorneys would be entitled to raise the section 2 — 611 issue for appeal, but argue that since they failed to do so the appeal should be dismissed.

In Sherman, section 2 — 611 sanctions were imposed against defendants’ attorneys at trial, and the defendants sought review of the trial court’s imposition of a sanction. The appellate court refused to reach the merits of the issue, holding that defendants were not entitled to raise the issue of sanctions entered against their attorneys only. The court reasoned that the imposition of sanctions in that case did not prejudice any right of defendants nor would a reversal of the ruling benefit defendants in any way.

We decline to adopt the ruling of the Sherman court in the case at bar and agree instead with the ruling in Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 525 N.E.2d 995. In that case attorney fees were assessed against a law firm representing a plaintiff in a personal injury action. The law firm’s standing to appeal the judgment entered against it was questioned. In finding that the law firm had standing, the court held that although the firm was a nonparty to the lawsuit which gave rise to the judgment, it was evident that the judgment directly affected a pecuniary interest and that interest appears in the record on appeal. The court reasoned that a nonparty is prejudiced or aggrieved in the legal sense when a legal right has been invaded or a pecuniary interest has been directly affected. (Ignarski, 171 Ill. App. 3d at 833, 525 N.E.2d at 997.) The nonparty’s interest must appear in the record or be alleged in the points relied on for reversal. Metropolitan Sanitary District ex rel. O’Keeffe v. Ingram Corp. (1980), 85 Ill. App. 3d 859, 865, 407 N.E.2d 627, 631, quoting Almon v. American Carloading Corp. (1942), 380 Ill. 524, 530, 44 N.E.2d 592, 595.

In the instant case it is undeniable that plaintiffs’ counsel has a direct pecuniary interest in this appeal. Sanctions under section 2— 611 of the Code of Civil Procedure were assessed against plaintiffs’ counsel, and the trial court specifically enjoined plaintiffs’ attorneys from seeking or accepting reimbursement from the plaintiffs for the sanctions. It is clear that the judgment entered against counsel directly affected a pecuniary interest and this interest appears in the record on appeal. We find, therefore, that counsel for the plaintiffs do have standing to prosecute the instant appeal.

We next address the issue of whether failure to join plaintiffs’ counsel as party appellants to this appeal precludes this court from deciding the merits. Whenever a party has been omitted whose presence is so indispensable to a decision of the case upon its merits that a final decree cannot be made without materially affecting his interests, the court should not proceed to a decision on the merits. (Hobbs v. Pinnell (1959), 17 Ill. 2d 535, 536, 162 N.E.2d 361, 362.) The requirement of “joinder” of necessary parties is absolute and inflexible and applies to trial courts as well as to appellate courts, which have a duty to enforce this principle of law sua sponte as soon as it is brought to their attention. (Glickauf v. Moss (1974), 23 Ill. App. 3d 679, 683, 320 N.E.2d 132, 136.) Section 2-407 of the Code of Civil Procedure provides:

“§2 — 407. Nonjoinder and misjoinder of parties — Change of parties. No action shall be dismissed for misjoinder of parties, or dismissed for nonjoinder of necessary parties without first affording reasonable opportunity to add them as parties. New parties may be added and parties misjoined may be dropped by order of the court, at any stage of the cause, before or after judgment, as the ends of justice may require on terms which the court may fix.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 407.)

It would be inappropriate for us to dismiss this appeal simply because plaintiffs’ counsel were not joined as indispensable parties, since failure to join an indispensable party does not deprive a court of its jurisdiction over parties that are properly before it. Moenning v. Commonwealth Edison (1985), 134 Ill. App. 3d 468, 472, 481 N.E.2d 36, 39.

We note that the purpose of a notice of appeal is to inform the party in whose favor judgment has been rendered that the unsuccessful party desires a review of the judgment. Accordingly, the notice of appeal is to be liberally construed. (McMahon v. McMahon (1981), 97 Ill. App. 3d 448, 450, 422 N.E.2d 1150, 1152.) When the deficiency in the notice is one of form and not of substance, the appeal may still be entertained by the reviewing court. (In re Estate of Malloy (1981), 96 Ill. App. 3d 1020, 1024, 422 N.E.2d 76, 80; In re Estate of Kaluza (1978), 62 Ill. App. 3d 267, 269, 379 N.E.2d 78, 79-80.) The present notice of appeal attains its purpose and sufficiently apprises the defendants that plaintiffs’ counsel seek review of the imposition of section 2 — 611 sanctions. We mustn’t forget that the requirements of notice are to be given a liberal application to make certain a case will be considered on the merits by the court of review. (Moenning, 134 Ill. App. 3d at 471, 481 N.E.2d at 39.) In this case there is no showing that the formal defect in not naming plaintiffs’ counsel as party appellants prejudiced defendants. We herewith join plaintiffs’ counsel as party appellants to this cause and find that this court has jurisdiction to decide this appeal.

With the question of jurisdiction resolved, we turn to the substantive issues. Presented for our review is the question of whether the trial court erred in its rulings as to each party’s motion for sanctions under section 2 — 611. We will first address the plaintiffs’ argument that the trial court erred in ordering sanctions against plaintiffs’ attorneys. Plaintiffs reason that no recognized action against plaintiffs’ attorneys existed at the time the pleadings complained of were filed. The complaint in this case was filed August 14, 1986. On April 1, 1987, defendants filed their motion for attorney fees and costs alleging that the trial court entered summary judgment in their favor, that plaintiffs’ complaint was not well grounded in fact, and that had plaintiffs conducted an investigation of the facts of the case, defendants would not have been made party to the case and would not have incurred attorney fees or costs related to the defense of the case. Prior to November 25, 1986, section 2 — 611 of the Code of Civil Procedure provided, inter alia:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611.)

This version of section 2 — 611 was applicable only against parties, not their attorneys. (Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 835, 525 N.E.2d 995, 997; Evans v. Stoval (1980), 83 Ill. App. 3d 257, 259, 403 N.E.2d 1321, 1323.) It wasn’t until the current version of section 2 — 611 became effective on November 25, 1986, that sanctions under the rule could be imposed on attorneys, as persons who sign pleadings, motions or other papers in violation of the statute. (Ill. Ann. Stat., ch. 110, par. 2 — 611, Supplement to Historical & Practice Notes, at 21 (Smith-Hurd Supp. 1988).) The question for our review is whether sanctions against a party’s attorney may be imposed with regard to pleadings filed prior to the effective date of section 2 — 611.

We find that the amended version of section 2 — 611 does not effect a mere change in existing procedure, but rather creates an obligation on plaintiff’s attorney which did not exist before. (Board of Education of School District No. 170 v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 477, 461 N.E.2d 567, 571.) Because these types of statutes are penal in nature, they may be invoked only in cases falling strictly within their terms. (People ex rel. Donelson v. Cowling (1984), 128 Ill. App. 3d 886, 889, 471 N.E.2d 654, 657; Fewer v. Grant (1982), 111 Ill. App. 3d 747, 750, 444 N.E.2d 628, 630.) As such, we are inclined to adopt the view which other districts have elected, that amended section 2 — 611 is not to be applied retroactively against the party’s counsel. (Prevendar v. Thonn (2d Dist. 1988), 166 Ill. App. 3d 30, 39, 518 N.E.2d 1374, 1381; Ignarski v. Heublein (1st Dist. 1988), 171 Ill. App. 3d 830, 837, 525 N.E.2d 995, 998.) Our inquiry is not complete, however, since defendants have argued that even if section 2 — 611 is not to have retroactive application, the better rule is that the duty imposed by amended section 2 — 611 is a continuing duty. Defendants suggest that plaintiffs’ attorneys should be subject to sanctions for not withdrawing the complaint once they obtained undisputed evidence that contradicted an essential allegation of the complaint. Defendants have cited as authority for their position City of Springfield v. Beck (1976), 34 Ill. App. 3d 784, 340 N.E.2d 350, and Grandys v. Spring Soft Water Conditioning Co. (1968), 101 Ill. App. 2d 225, 242 N.E.2d 454.

In both City of Springfield and Grandys, attorney fees were awarded to the defendants as a sanction against the plaintiff. In Grandys fees were awarded to the defendant where plaintiff filed his complaint even though the improper joinder of the defendant could have been determined by perfunctory investigation prior to filing. In City of Springfield, plaintiff filed a petition to condemn certain property, naming as interested parties holders of legal title to the property. Plaintiff filed its complaint and made allegations with reference to title without the benefit of a title search. Title was in fact not in the defendants named in plaintiff’s complaint, and as such fact could have been easily ascertained from an examination of the record of title, sanctions were imposed and were upheld on appeal.

The obvious difference between those cases and the case at bar is that in City of Springfield and Grandys prior section 41 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 41) was applied. It is true that section 2 — 611 of the Code of Civil Procedure prior to its amendment of November 25, 1986, was an adaptation of section 41 of the Civil Practice Act (Ill. Ann. Stat., ch. 110, par. 2 — 611, Joint Committee Comments, at 265 (Smith-Hurd 1983)). It is also true, however, that neither section 41 nor former section 2 — 611 gave rise to attorney liability. Those sections were applicable only against parties, not their attorneys. Evans v. Stoval (1980), 83 Ill. App. 3d 257, 259-60, 403 N.E.2d 1321, 1323.

Aside from the obvious distinction between the cases defendants cite as authority and the instant case, the fallacy in applying Grandys and City of Springfield to the case at bar is that in those cases plaintiff filed suit even though a cursory review of public records would have revealed the impropriety of joining defendants as parties. Furthermore, in Grandys a deposition taken prior to the summary judgment hearing conclusively revealed that plaintiff had joined the wrong party and that litigation should have been discontinued. In the instant case, at the trial court’s hearing on motions for assessment of fees, plaintiffs argued that their office did conduct a preliminary title investigation to determine the rightful parties to be joined as defendants. Plaintiffs obtained a lease covering the entire subdivision where the oil tanks which exploded were located. Plaintiffs’ prefiling investigation also revealed an aerial photograph which depicted all of the subdivision lots as being interconnected. Contrary to the facts in Grandys and City of Springfield, plaintiffs’ attorneys in the case at bar researched the land holdings and based their decision to include the defendants as parties in the suit on the subdivision lease and aerial photograph of the lots in the subdivision. The facts of this case show that plaintiffs could not have known the Lamberts were improper parties by simply conducting a perfunctory investigation. In neither of the cases relied on by defendants did the plaintiffs conduct even a cursory investigation of the defendants’ interests; therefore, the precedential value of Grandys and City of Springfield for the case at bar is minimal.

Defendants offer no other authority as justification for holding that section 2 — 611 imposes a continuing duty upon counsel as to pleadings filed prior to the effective date of section 2 — 611. Defendants argue, however, that the intent and purpose of section 2 — 611 mandate that the duty imposed by the statute is a continuing one, requiring complainants to reexamine the allegations in their pleadings, motions and other papers filed prior to the effective date of the current version of the statute. We decline to adopt defendants’ suggested continuing duty standard upon attorneys with regard to application of section 2 — 611.

Since few Illinois courts have had the opportunity to apply the amended section 2 — 611, and there is no controlling precedent to guide us in our interpretation of the new section 2 — 611 as it applies to the issue of continuing duty, it is reasonable for us to examine Federal case law which has dealt with the issue in applying Federal Rule 11, after which section 2 — 611 is modeled. We note that the provisions of section 2 — 611 are almost identical to the provisions of Rule 11 of the Federal Rules of Civil Procedure. The following provision of amended section 2 — 611, which is the pertinent provision in the case at bar, is identical to the language of Federal Rule 11:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose name and address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” (Ill. Rev. Stat. 1987, ch. 110, par. 2-611.)

The consensus of the Federal courts of appeal that have ruled on the issue of imposing a continuing duty under Rule 11 has been that Rule 11 does not impose a continuing obligation. (See Oliveri v. Thompson, 803 F.2d 1265 (2d Cir. 1986), cert, denied (1987), 480 U.S. 918, 94 L. Ed. 2d 689, 107 S. Ct. 1373; Gaiardo v. Ethyl Corp. (3d Cir. 1987), 835 F.2d 479; Thomas v. Capital Security Services, Inc. (5th Cir. 1988), 836 F.2d 866; Pantry Queen Foods, Inc. v. Lifschultz Fast Freight, Inc. (7th Cir. 1987), 809 F.2d 451; Golden Eagle Distributing Corp. v. Burroughs Corp. (9th Cir. 1986), 801 F.2d 1531 (refers to committee comment that courts should look at the situation which existed when the paper was filed); Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Associated Contractors, Inc. (11th Cir. 1989),877 F.2d 938.) These courts correctly argue that the plain language of Rule 11 does not include a continuing duty; they also rely on the advisory committee note, which they interpret to prohibit imposition of a continuing obligation. We concur with those Federal courts which have concluded that the plain language of Rule 11, like our section 2 — 611, does not impose a continuing obligation.

We recognize several other reasons why section 2 — 611 should not be interpreted as imposing a continuing obligation. The reasons cited below were given in an article discussing the development of Federal Rule 11. They are equally applicable to section 2 — 611 and we find merit in citing them as reasons for not holding that 2 — 611 imposes a continuing obligation.

“First, inquiry into what a party or attorney knew can be difficult enough; expanding the inquiry to include when he or she knew it inevitably invites the kind of satellite litigation the drafters sought to avoid. Second, because rule 11 applies to ‘other papers’ in addition to pleadings, sanctions can be imposed for continuing to assert a baseless claim in such subsequent filings as notices of deposition or trial briefs, without resort to any continuing obligation to modify groundless pleadings.” Levin & Sobel, Achieving Balance in the Developing Law of Sanctions, 36 Cath. U.L. Rev. 587, 605 (1987).

We find that section 2 — 611 applies only to an attorney’s conduct at the time of the signing of a pleading, motion or other paper. As to pleadings, motions and other papers signed prior to the effective date of the amended section 2 — 611, an attorney bears no continuing obligation to review and reevaluate the merits of the case.

We now turn to the question of whether this court can authorize the imposition of sanctions against the plaintiffs’ attorneys in an amount necessary to reimburse Douglas and Judy Lambert for their expenses and reasonable attorney fees incurred as a result of the plaintiffs filing their March 25,1987, notice of appeal.

There is a divergence of opinion within the districts of Illinois as to the applicability of section 2 — 611 to appeals. The second and fourth districts have determined that section 2 — 611 does not authorize awards of fees and costs by appellate courts as a result of frivolous appeals. (See Holcomb State Bank v. Federal Deposit Insurance Corp. (2d Dist. 1989), 180 Ill. App. 3d 840, 536 N.E.2d 453; Wiley v. Howard (2d Dist. 1989), 180 Ill. App. 3d 721, 536 N.E.2d 186; Darnall v. City of Monticello (4th Dist. 1988), 168 Ill. App. 3d 552, 522 N.E.2d 837; In re Marriage of Stockton (4th Dist. 1988), 169 Ill. App. 3d 318, 523 N.E.2d 573.) The first and third districts are of the opinion that section 2 — 611 sanctions may be imposed with regard to appeals. (See Davis v. Chicago Housing Authority (1st Dist. 1988), 176 Ill. App. 3d 976, 531 N.E.2d 1018; Aroonsakul v. Flanagan (1st Dist. 1987), 155 Ill. App. 3d 223, 507 N.E.2d 1; Ignarski v. Heublein (1st Dist. 1988), 171 Ill. App. 3d 830, 525 N.E.2d 995; Fellows v. Miler (3d Dist. 1986), 141 Ill. App. 3d 639, 490 N.E.2d 992.) We agree with those courts which have held that section 2 — 611 confers no authority to the appellate courts. Section 2 — 611 is penal in nature, and its provisions may be invoked only in cases falling strictly within its terms. (People ex rel. Donelson, 128 Ill. App. 3d at 889, 471 N.E.2d at 657.) Although it may be argued that the words “every pleading, motion and other paper” include those papers filed on appeal, section 2— 611 does not make specific reference to appellate proceedings. Strict application of section 2 — 611 demands that it be interpreted as not applying to appeals. We find this consistent with article VI, section 1, of the Illinois Constitution of 1970, which states: “The judicial power is vested in a Supreme Court, an Appellate Court, and Circuit Courts.” (Ill. Const. 1970, art. VI, §1.) The supreme court, rather than the legislature, has the power to issue rules regulating appeals. (Wiley v. Howard (1989), 180 Ill. App. 3d 721, 725, 536 N.E.2d 186, 188; People v. Cox (1980), 82 Ill. 2d 268, 274, 412 N.E.2d 541, 545, citing People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 65-66, 237 N.E.2d 495, 498.) We find, therefore, that section 2 — 611 does not confer upon this court authority to impose sanctions as a result of frivolous appeals or frivolous contentions raised on appeal.

In further support of our holding, we refer to Illinois Supreme Court Rule 375 (Illinois Official Reports, No. 13 (June 28, 1989)), which became effective August 1, 1989. That rule states in pertinent part:

“(b) Appeal Not Taken in Good Faith; Frivolous Appeals. If, after consideration of an appeal, it is determined that the appeal itself is frivolous, or that an appeal was not taken in good faith, for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, or the manner of prosecuting the appeal is for such purpose, an appropriate sanction may be imposed upon any party or the attorney or attorneys of the party or parties. An appeal will be deemed frivolous where it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. An appeal will be deemed to have been taken or prosecuted for an improper purpose where the primary purpose of the appeal is to delay, harass, or cause needless expense.
* * *
A reviewing court may impose a sanction upon a party or an attorney for a party upon the motion of another party or parties, or on the reviewing court’s own initiative where the court deems it appropriate.”

Although the legislature has the power to enact laws governing judicial practice where it does not unduly infringe upon the inherent power of the judiciary (Strukoff v. Strukoff (1979), 76 Ill. 2d 53, 59, 389 N.E.2d 1170, 1172; Agran v. Checker Taxi Co. (1952), 412 Ill. 145, 149, 105 N.E.2d 713, 715), where a rule on a matter within the court’s authority and a statute on the same subject conflict, the rule will prevail. (People v. Cox, 82 Ill. 2d at 274, 412 N.E.2d at 545; People v. Jackson (1977), 69 Ill. 2d 252, 259, 371 N.E.2d 602, 605; People ex rel. Stamos, 40 Ill. 2d at 66, 237 N.E.2d at 496-97.) Were we to conclude that section 2 — 611 confers authority upon the appellate courts, it is clear that section 2 — 611 would conflict with Supreme Court Rule 375. Section 2 — 611 condemns a wider spectrum of conduct than does Rule 375. Section 2 — 611 sanctions may be imposed as to every pleading, motion or other paper filed in noncompliance with the statute. Rule 375 on the other hand applies to the filing of appeals. We assume that the legislature in enacting section 2 — 611 intended section 2 — 611 to have broad application but did not intend it to impinge upon the inherent rulemaking authority of the judiciary. Where more than one construction may be placed on a statute, the court will choose that which leads to a logical result and avoid a construction which leads to an absurd result. People v. Sansone (1981), 94 Ill. App. 3d 271, 273, 418 N.E.2d 862, 864; Board of Education v. Community High School District No. 211 (1967), 89 Ill. App. 2d 481, 485, 232 N.E.2d 316, 318.

Our finding that section 2 — 611 does not confer authority upon this court to impose sanctions for frivolous appeals is in conformance with Supreme Court Rule 137 (Illinois Official Reports, No. 13 (June 28, 1989)), also effective August 1, 1989, which preempts all matters sought to be covered by section 2 — 611. Supreme Court Rule 137 closely follows section 2 — 611 with the exception of a few minor changes which we do not find it necessary to address here. With the advent of Supreme Court Rules 137 and 375, it is now clear that section 2 — 611, now preempted by Supreme Court Rule 137, does not confer authority upon this court to impose sanctions with respect to frivolous appeals.

The next question for our review is whether this court may invoke Supreme Court Rule 375 in imposing sanctions against the plaintiffs’ attorneys for bringing this appeal. Just as the amended version of section 2 — 611 is penal in nature and does more than effect a mere change in existing procedure, Supreme Court Rule 375 imposes an obligation which did not exist before. (See Board of Education of School District No. 170 v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 477, 461 N.E.2d 567, 571.) Statutes of a penal nature may be invoked only in cases falling strictly within their terms. (People ex rel. Donelson v. Cowling (1984), 128 Ill. App. 3d 886, 889, 471 N.E.2d 654, 657.) With this in mind, we hold that Supreme Court Rule 375 is not to be applied to appeals filed with this court prior to the new rules’ effective date.

We next address the issue on appeal of whether the trial court erred in denying plaintiffs their cross-motion for section 2 — 611 sanctions. Plaintiffs’ motion stated that section 2 — 611 as amended and put into effect November 25, 1986, had no application to the plaintiffs or their attorneys in this case, and that no effort was made by defendants to determine whether their motion was warranted by existing law. Plaintiffs argue that these facts require sanctions be imposed against defendants, and that the trial court abused its discretion in denying the plaintiffs’ motion for attorney fees and costs. The application of the statute should be limited to cases where a party has abused his right of free access to the courts by pleading untrue statements of fact which the party knew or reasonably should have known were untrue. (Wollschlager v. Sundstrand Corp. (1986), 143 Ill. App. 3d 347, 351, 493 N.E.2d 107, 110.) Plaintiffs argue that defendants knew or should reasonably have known that there was no legal foundation for their motion. Even though the defendants’ theory of applying section 2 — 611 retroactively is not recognized by this court, given defendants’ unfaltering belief that plaintiffs pled untrue statements of fact, supported by summary judgment in defendants’ favor, and defendants’ attempted interpretation of section 2 — 611, we do not find any element of bad faith on the defendants’ behalf. The facts, circumstances, motive, intent, or purpose of the pleader are material in determining whether the allegations were made with reasonable cause. (Wollschlager, 143 Ill. App. 3d at 352, 493 N.E.2d at 111; In re Estate of Knutson (1980), 83 Ill. App. 3d 907, 912, 404 N.E.2d 1003, 1006.) We find that the trial court did not abuse its discretion in denying the plaintiffs’ motion for attorney fees and costs in this case.

Accordingly, the trial court’s order granting defendants’ section 2 — 611 motion is reversed. The trial court’s order denying plaintiffs’ section 2 — 611 motion is affirmed.

Affirmed in part and reversed in part.

RARICK and HOWERTON, JJ., concur.


author: JUSTICE WEBER

text:
    MARY BAKER, n/k/a Mary Davis, Plaintiff-Appellant, v. THE CITY OF GRANITE CITY, Defendant (Richard Allen, Petitioner-Appellee).
    Fifth District
    No. 5—88—0004
    Opinion filed October 3, 1989.
    Joel M. Drury, of Belleville, for appellant.
    Stephen M. Tillery, of Kassly, Bone, Becker, Dix, Tillery & Reagan, P.C., of Belleville, for appellee.
   JUSTICE WEBER

delivered the opinion of the court:

This cause has a long history not only at the trial court level but at the appellate court level as well. (See Baker v. City of Granite City (1979), 75 Ill. App. 3d 157, 394 N.E.2d 33 (Baker I); Baker v. City of Granite City (1983), 112 Ill. App. 3d 1096, 446 N.E.2d 531 (Baker II).) The instant appeal is from an order of the circuit court awarding to Richard Allen, petitioner-appellee, as compensation for his attorney fee for the appellate work on Baker I an amount of 5% of the total judgment, representing 75% of the usual and customary 62/s% appellate fee.

An extensive recitation of the facts of this cause can be found in Baker I and Baker II. Only a brief set of facts necessary to an understanding and disposition of the issues raised in this appeal is set forth herein.

Allen represented Mary Baker, now Mary Davis, plaintiff-appellant (hereinafter Baker), in a lawsuit against the City of Granite City for personal injuries Baker sustained on June 1, 1973, as a result of a fall caused by a sidewalk maintained by the City in an unsafe condition. A jury returned a verdict in favor of Baker on February 23, 1978, in the sum of $125,000. A dispute between Allen and Baker arose over Allen’s fee prior to the time of the trial and continued after the trial. By letter of November 4, 1978, Baker formally discharged Allen as her attorney. Allen, based on advice from the general counsel for the Illinois State Bar Association, continued to do appellate work on the case inasmuch as he had not been relieved as Baker’s counsel by court order.

This court concluded in Baker II that the trial court properly awarded Allen trial court level attorney fees in quantum meruit-, and that after considering those factors necessary in determining a reasonable fee (see Neville v. Davinroy (1976), 41 Ill. App. 3d 706, 355 N.E.2d 86; 107 Ill. 2d R. 2 — 106), the usual and customary attorney fee in the community can be expressed as a percentage. This court in Baker II remanded the cause to the circuit court for redetermination of Allen’s appellate fee.

At the hearing on remand, Allen presented no additional testimony but stipulated through his attorney, as did Baker through her attorney, that the court could consider the appellate brief prepared and filed by Allen; the appellate brief filed by Ben S. Urban, Baker’s counsel after Allen, which brief was prepared by Steve Katzman; the additional excerpts of record prepared and filed by Allen; the response to the City’s petition for leave to appeal prepared and filed by Allen; and the testimony of George Moran, Sr., Allen, Katzman, and John Bauman given at the original fee hearing for both trial and appellate level attorney fees. The key portions of such prior testimony being Allen’s statement that he expended 75 hours of appellate effort; George Moran, Sr.’s statement that, after examining Allen’s work, he estimated the preparation time to be 8 to 10 days; and John Bauman’s statement that the hourly rate in the community for appellate work was $100 per hour.

Baker called at the hearing on remand Steve Katzman, who testified that it took him approximately 25 hours, plus or minus three hours, to write his Baker I brief; that he was furnished both Allen’s and the City of Granite City’s briefs, additional excerpts from the record, and the record on appeal to assist him in his work; that he did not view this as a complicated matter or brief; and that, although he started from scratch, he relied on Allen’s brief and used Allen’s arguments when applicable. Katzman was unable to specify the number of hours he saved by relying on Allen’s brief.

On cross-examination Katzman testified that there was no duplication of his effort with that of Allen with respect to the additional excerpts of the record and the response to the City’s petition for leave to appeal that Allen had prepared. Katzman further testified that he had no present recollection of the extent he relied on Allen’s brief and that, in his opinion, the court’s comparison of the two briefs was as good a way as any to determine which portions of the brief should be attributable to Allen and which to Katzman.

Baker first contends that the trial court erred in awarding Allen compensation for appellate work time spent after his discharge in the preparation of a response to the petition for leave to appeal of the City. Reliance is placed by Baker on the proposition that “[t]o require a client to compensate both the discharged attorney and the substitute attorney would discourage clients from exercising their right to discharge.” (Baker, 112 Ill. App. 3d at 1100, 446 N.E.2d at 534.) While as a general rule an attorney is not entitled to compensation after the discharge (Tobias v. King (1980), 84 Ill. App. 3d 998, 406 N.E.2d 101), this court held in Baker II that “[t]o reach a proper balance between the client’s right to discharge and an attorney’s right to compensation for services rendered, we hold that Allen should be compensated to the limited extent that his work assisted, but did not duplicate, Urban’s work.” Baker, 112 Ill. App. 3d at 1100, 446 N.E.2d at 534.

The trial court made a specific finding that Allen prepared and filed a response to the petition for leave to appeal of the City while none was filed by either Urban or Katzman. Additionally, the trial court found that no appellate document, except the brief, was filed by Urban or Katzman. Both findings are well supported by the record. Finally, the petition for leave to appeal was denied by our supreme court. We therefore find that allowing compensation for Allen’s effort in preparing a response to the petition for leave to appeal of the City clearly comes within the ambit of Baker I inasmuch as the effort was not duplicative of anything Urban or Katzman did and certainly can be construed as assisting in the preservation for Baker that which has been described by the trial court as an “excellent” award and of “great” benefit to Baker.

Baker next contends that the trial court erred in awarding 5% of the total judgment of $125,000, or $6,250, to Allen for his appellate attorney fee on Baker I. We disagree with the contention and find no error. As stated in Baker II, Allen’s compensation is based on quantum meruit; however, to protect Baker from paying twice for the same service, Allen should not be compensated for his efforts that were a duplication of the efforts of Baker’s attorneys, Urban and Katzman. As in Baker II, Baker here contends that the amount of time expended is a substantial factor in determining fees. (Leader v. Cullerton (1976), 62 Ill. 2d 483, 343 N.E.2d 897; Flynn v. Kucharski (1974), 59 Ill. 2d 61, 319 N.E.2d 1.) As stated in Baker II, however, we do not believe that the use of the lodestar computation of fees as defined in Fiorito v. Jones (1978), 72 Ill. 2d 73, 377 N.E.2d 1019, is mandated in this case. While the evidence in the case indicates that Allen expended approximately 75 hours on the appellate process of Baker I and that Katzman expended approximately 25 hours, and that the usual and customary hourly rate for such work is $100 per hour in the community in question, we do not find it error for the trial judge to express the appellate fee as a percentage of the total judgment. The trial court’s finding that 62/s% of the total judgment represented the usual and customary fee in the community for this type of work at the appellate level is consistent with the proofs offered.

The trial court’s assessment of Allen’s fee as a fraction of the usual and customary percentage, the numerator of the fraction being the hours Allen expended in the- appellate process and the denominator of the fraction being the sum of the hours Allen and Katzman expended in the appellate process, is a matter within the discretion of the trial court and we find no abuse of that discretion here. The award of attorney fees is a matter within the discretion of the trial court and the award will not be altered in the absence of an abuse of that discretion. Welsh v. Welsh (1976), 38 Ill. App. 3d 35, 347 N.E.2d 512.

While we affirm in this case the application of a percentage of the total judgment to determine an appellate fee, we do not ignore those factors a trial court should consider in establishing an attorney fee. It is evident in this case that the trial court was aware of the qualifications of Allen to perform the work, his standing in the legal community, the complexity, or lack thereof, in the appeal of Baker I, and his lack of appellate experience. It should be noted that the award of the trial court on the percentage basis is less than would have been awarded by extending the hours Allen expended by the usual and customary hourly rate in the community for such work. We believe this to be illustrative of the fact that the trial court took into account the above-recited factors, including the lack of appellate experience by Allen.

Finally, we note that the trial court compared the Allen brief and the Katzman brief and found that such comparison “strongly suggests that Allen’s work in the appellate brief greatly benefitted Mary Baker Davis and only slightly duplicated the efforts of Mary Baker Davis’ other counsel.” We are in accord with that finding. The award of attorney fees in this case is in accord with the mandate of Baker II that Allen be compensated to the extent his work assisted but did not duplicate the work of other attorneys on the case.

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

Affirmed.

LEWIS and HOWERTON, JJ., concur.


author: JUSTICE HOWERTON

text:
    VERA L. BROWN, Plaintiff-Appellant, v. ROBERT J. TUTTLE et al., Defendants-Appellees.
    Fifth District
    No. 5—88—0302
    Opinion filed October 5, 1989.

      Richard A. Cagle, of Cagle Law Offices, of Alton, for appellant.
    Robert S. Forbes, of Forbes & Alfeld, P.C., of Alton, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

Plaintiff contracted to sell her home to defendants, who had obtained a guaranteed loan from the Veteran’s Administration for the purchase.

Federal regulations covering Veteran’s Administration loans provide:

“(a) No charge shall be made against, or paid by, the borrower incident to the making of a guaranteed or insured loan other than those expressly permitted under paragraph (d) or (e) of this section, and no loan shall be guaranteed or insured unless the lender certifies to the Administrator that it has not imposed and will not impose any charges or fees against the borrower in excess of those permissible under paragraph (d) or (e) of this section.
* * *
(d) * * *
* * *
(2) A lender may charge and the veteran may pay a flat charge not exceeding 1 percent of the amount of the loan, provided that such flat charge shall be in lieu of all other charges relating to costs of origination.” 38 C.F.R. §36.4312 (1987).

Defendant Robert Tuttle signed a note agreeing to pay plaintiff $1,760 as reimbursement for the points charged on the loan. Defendants later refused to pay and plaintiff brought this action.

The circuit court of Madison County held that the agreement was illegal and unenforceable and entered judgment for defendants. We reverse.

The sole question is whether the regulation prohibits a seller and a buyer from entering into a contract that would be prohibited between the lender and the buyer. It is one of first impression in Illinois.

The rule most basic to statutory construction is that courts are bound to give effect to statutes according to the usual, ordinary meaning of the language. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 381 N.E.2d 222.) If the words are clear the court should not alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.

The regulation prohibits the lender from assessing the borrower a loan origination fee in excess of 1%. Nothing in the language of the regulation prohibited plaintiff and defendant from entering into the separate agreement covering the loan origination fees seller agreed to pay in order that defendants could get a Veteran’s Administration loan.

Although the case is one of first impression in Illinois, California and Maryland have likewise interpreted the regulation. See Ganey v. Doran (1987), 191 Cal. App. 3d 901, 236 Cal. Rptr. 787; Messitte v. Colonial Mortgage Service Co. Associates, Inc. (1980), 287 Md. 289, 411 A.2d 1051.

The judgment of the circuit court is reversed and remanded with directions.

Reversed and remanded with directions.

WELCH, P.J., and CHAPMAN, J., concur.


author: JUSTICE GOLDENHERSH

text:
    DOROTHY STATEN, Plaintiff-Appellant, v. PAMIDA, INC., Defendant-Appellee.
    Fifth District
    No. 5—88—0583
    Opinion filed October 5, 1989.

      Edward W. Huntley and Grady E. Holley, both of Holley, Keith & Huntley, of Springfield, for appellant.
    Heyl, Royster, Voelker & Allen, of Springfield (John A. Ess, of counsel), for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Dorothy Staten, appeals from an order of the circuit court of Christian County granting defendant Pamida, Inc.’s motion for directed verdict. In this cause, plaintiff raises a single issue for review, namely, whether the trial court erred in directing a verdict in favor of defendant at the close of plaintiff’s evidence. We reverse and remand.

The incident in question occurred on October 21, 1982, at defendant’s place of business, a self-help discount department store, located in Taylorville. Plaintiff, age 51 on the date in question, went to defendant’s store, along with her husband, now deceased, in order to purchase painting supplies to paint their bedroom. Plaintiff had been to defendant’s store on “several” other occasions. Upon entering the store, plaintiff and her husband went to the back of the store where the paint supplies were located. Plaintiff observed one-gallon cans of paint stacked upon shelves against the back wall. On top of these cans, the highest of which was above her eye level, plaintiff observed paint pans and roller sets. Plaintiff was only 5 foot, 2 inches tall, and her husband was even shorter, so she attempted to get the attention of a store clerk to assist her in retrieving the pan and roller set. When the store clerk did not stop to assist plaintiff and her husband, plaintiff attempted to reach above the stacked paint cans for the pan and roller by standing on her tiptoes and stretching for the set. At this time, a gallon of paint fell down and struck plaintiff on the left foot. Plaintiff then lost her balance and fell to the floor. Plaintiff has no idea where the can came from, as she did not see it fall. She also testified that she did not drop the paint can. There are no other witnesses to this accident.

Bruce Pearson, assistant manager at the Pamida store in Taylor-ville on the date of this occurrence, has no independent recollection of this accident. He received a report of the incident as part of his duties. Bruce Pearson testified that the general method of stacking paint cans was to stack the paint two cans high on shelves which did not contain a front border commonly referred to as a “lip.” He testified that the shelves on which the paint was displayed were 72 inches high. He further testified that there was a separate display for paint pans and rollers located in an aisle near the middle of the store in what is referred to by the store as a “gondola.” The shelves contained in this gondola were 54 inches high. This system of display was set up by the Pamida home office in Omaha, Nebraska. Pearson also testified that while it was not store policy to stack the pans and rollers on top of the paint cans, he had seen this done by other Pamida employees with excess pans and rollers that would not fit on the gondola. He was not sure if any pans and rollers were stacked on top of the paint on October 21, 1982, because he had not checked that display on that day. He also noted that in his 11 years of employment with defendant, he had not witnessed or heard of any similar incidents in which paint cans fell from the shelves and injured a patron.

Plaintiff’s amended complaint alleges in paragraph 6:

“[Djefendant, by and through its agents and servants, was then and there guilty of one or more of the following negligent acts or omissions:
(a) Negligently and carelessly designing a merchandising display system which created an unreasonable risk of falling objects hazardous to the safety of patrons.
(b) Negligently and carelessly maintaining and permitting said display system to remain on the premises which constituted a hazard to the safety of the Plaintiff.
(c) Negligently and carelessly failing to inspect the premises for said defect which constituted a hazard to the safety of the patrons.
(d) Knowing of the presence of said defect on the premises, negligently or carelessly failing to warn the Plaintiff of said defect which constituted a hazard to the safety of patrons.”

Both parties agree that defendant owed plaintiff, an invitee, the duty of reasonable care, and defendant concedes that plaintiff suffered injuries as a result of this incident; however, the parties disagree concerning whether defendant breached the duty owed to plaintiff and whether it was established that any negligence on the part of defendant was a proximate cause of plaintiff’s injuries.

The single issue involved in this case presents us with a familiar question as to the circumstances under which the trial court may determine that the proof presents no factual determination for the jury’s consideration and that a verdict should be directed for defendant. The propriety of a directed verdict must be judged according to the standards set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, where the supreme court stated:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (37 Ill. 2d at 510, 229 N.E.2d at 514.)

In reviewing the evidence, a trial court cannot ignore circumstantial evidence or reasonable inferences of negligence that can be drawn from circumstantial evidence. (Murphy v. Messerschmidt (1977), 68 Ill. 2d 79, 86, 368 N.E.2d 1299, 1303.) Moreover, circumstantial evidence is not limited to those instances in which the circumstances support only one logical conclusion; instead, circumstantial evidence will suffice whenever an inference may reasonably be drawn therefrom. (Mort v. Walter (1983), 98 Ill. 2d 391, 396, 457 N.E.2d 18, 21; Walsh v. Finley (1972), 51 Ill. 2d 174, 176-77, 281 N.E.2d 654, 656.) In our judgment, the evidence in this case is not such that a verdict for plaintiff could never stand, and we believe the trial court erred in directing a verdict.

Bruce Pearson testified that while it was not normal procedure for defendant to stack paint pans and rollers on top of two stacked paint cans on shelves that measured 72 inches high and had no lip, there were occasions when employees had done this with the excess pans and roller sets which did not fit on the “gondola” display normally used for these sets. He further testified that he had not checked whether any such pans and rollers were on top of the paint display on the day of the accident. Plaintiff, on the other hand, saw pans and rollers placed above the paint cans on the day of the occurrence. Plaintiff testified that she made an effort to stop one of defendant’s employees to assist her in retrieving a pan and roller, but the employee ignored her request. She also testified that she had not seen the “gondola” display. Because plaintiff did not see where the paint can that dropped on her foot came from and because she denied touching the can which dropped on her foot, the jury could have reasonably concluded that defendant had improperly and negligently allowed the excess paint pans and rollers to be displayed on top of the 72-inch paint display and that this was, if not the complete cause of the paint can dropping on her foot, at least a contributing factor.

In a factually similar case, Lovejoy v. National Food Stores, Inc. (1973), 12 Ill. App. 3d 982, 299 N.E.2d 816, we considered it appropriate that the trial court, sitting without a jury, denied the defendant’s motion for a directed verdict and ultimately entered judgment for the plaintiff. In that case, the plaintiff testified that while shopping at one of defendant’s stores, some soda bottles that had been stacked in an aisle fell from a shelf and exploded, causing a glass fragment from one of the bottles to cut her and become lodged in her left foot. The only other customer present was approximately 15 feet away. Plaintiff offered no direct evidence why the bottles fell, but proceeded on the theory that defendant was negligent in stacking the bottles as displayed and that the defendant knew or should have known that the display created a hazard and should have taken precautions to eliminate the hazard. The defendant’s theory of the case was much different. The defendant’s witnesses testified the plaintiff had told them that she was injured when a fellow customer in the store knocked the bottles off the shelves. In the instant case, the trial court distinguished Lovejoy in its order denying plaintiff’s post-trial motion on the basis that first, in Lovejoy there were varying and contradictory versions given for the falling bottles and, second, there had been many prior incidents of falling and breaking bottles and, because of this, defendant continually checked the display. We find that the trial court erred in distinguishing the Lovejoy case.

In the instant case, the assistant manager of the Pamida store was aware that employees sometimes did stack pans and rollers above the paint display, but did not stop this practice, while in Love-joy, the defendant continually checked the soda bottle display to make sure that the display was properly arranged. In the instant case, there was no evidence offered to indicate that a customer was the cause of the paint can falling. In accordance with Lovejoy, the instant case should have been presented to the jury for its determination. Further, the trial court apparently did not find anything inherently hazardous in defendant’s display. This, however, was also a question for the jury to decide.

For the foregoing reasons, this court reverses the order of the circuit court of Christian County and remands for proceedings not inconsistent with this order.

Reversed and remanded.

HARRISON and RARICK, JJ., concur.