author: PRESIDING JUSTICE UNVERZAGT JUSTICE REINHARD,

text:
    JOHN M. WEST, Adm’r of the Estate of Willie D. West, Plaintiff-Appellant, v. DEERE AND COMPANY et al., Defendants-Appellees.
    Second District
    No. 2-89-0627
    Opinion filed August 17, 1990.

      REINHARD, J., dissenting.
    Robert A. Clifford, Robert P. Sheridan, and Keith A. Hebeisen, all of Robert A. Clifford & Associates, of Chicago, for appellant.
    Peter J. Magnani, of Peter J. Magnani & Associates, and Segal, McCambridge, Singer & Mahoney, Ltd., both of Chicago, Puckett, Barnett, Larson, Mickey, Wilson & Ochsenschlager, of Aurora, Clancy & Krippner, of St. Charles, and Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Lisle, for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The instant action arose from a fatal collision which occurred on May 31, 1986, when a step van driven by decedent, Willie D. West, collided with a field cultivator being towed by a tractor. Plaintiff, John M. West, administrator of decedent’s estate, brought an action in the circuit court of Kane County seeking damages from six defendants allegedly responsible for decedent’s death. Among these defendants was Deere & Company (Deere), manufacturer of the cultivator. Plaintiff sued Deere under both strict liability and negligence theories for designing and manufacturing a product which was unreasonably dangerous and defective in its transport mode.

Deere filed a motion for summary judgment. Following a hearing on the motion, the trial court found in Deere’s favor and granted summary judgment. Pursuant to Supreme Court Rule 304, the trial court found no just reason to delay enforcement or appeal of the summary judgment order. 107 Ill. 2d R. 304(a).

Plaintiff appeals, contending that the trial court erred in entering summary judgment in Deere’s favor because Deere’s product, the 1010 field cultivator, was unreasonably dangerous as a matter of law.

The facts as set forth in the record show that on May 31, 1986, Willie West was driving a step van in an easterly direction on Route 38 in Kane County while transporting mail for Dougherty Mail Service, his employer. Just east of Meredith Road, Route 38 crosses over railroad tracks by means of a highway overpass. When West drove onto the overpass, a very large tractor driven by defendant Martin Boehne and pulling a field cultivator was traveling in the opposite direction on the overpass. Attached to the cultivator was a harrow manufactured by defendant Remlinger Manufacturing Co., Inc. Boehne had been working earlier at the nearby Sullivan farm, which was leased by defendant Michael Probst and was on his way to the residence of defendant James Meredith to refuel the tractor. Probst and Meredith, who farmed together, owned the tractor, cultivator, and harrow, and employed Boehne.

On the overpass the step van came into contact with a portion of the cultivator and harrow, resulting in West’s death. The cultivator was a John Deere 1010 Drawn Field Cultivator with a working -width of 30^2 feet. It was a flexible, horizontal fold model with two outriggers, or wings, which were designed to fold flat for transport or storage. With the wings folded, the cultivator had a transport or storage width of 16 feet.

On the overpass there were concrete abutments or curbs, nine inches high on both the north and south sides of the roadway. The distance from curb to curb was approximately 30 feet 1 inch. The distance from the north curb to the southern or outer edge of the double yellow center lines was approximately 15 feet 5xk inches. Given its transport width of 16 feet, the Deere 1010 cultivator would extend from the north curb to a point about 6V2 inches into the eastbound lane.

Probst and Meredith had purchased a Remlinger harrow in 1986 and attached it to the Deere cultivator. In attaching the harrow, Probst and Meredith altered the cultivator by adding to its frames structural steel parts furnished by Remlinger. Because of the addition of the Rem-linger parts, the wings of the cultivator could not be folded flat, and when the wings of the cultivator with harrow attached were folded, the harrow extended beyond the cultivator.

Martin Boehne had driven the tractor and cultivator on the overpass numerous times and was well aware that the transport width of the cultivator and the harrow was at least 16 feet. Boehne knew, as he drove onto the overpass immediately before the accident happened, that a portion of the cultivator and harrow would extend over the yellow center line and into the opposite lane of traffic. Boehne knew that there were alternate routes to his destination which did not require use of the overpass, but he chose the route using the overpass because it was quicker.

Prior to the accident in question, Boehne’s employer, Michael Probst, also knew from personal observation that a portion of the cultivator would extend into the opposite lane when transported on the overpass.

At the time of the collision the amber warning lights on the tractor were activated. The two warning lights, which flashed simultaneously, were located on top of the tractor cab above the windshield and faced oncoming traffic. Also facing oncoming traffic was an amber reflector on the left-hand front extremity of the cultivator.

According to Boehne’s testimony at his discovery deposition, decedent’s step van hit a dip in the road immediately before the collision and swerved into Boehne’s lane, crossing the double yellow center lines.

At the time of the accident, there was nothing mechanically wrong with the tractor. It operated properly and had nothing to do with the accident. There also was nothing mechanically wrong with the cultivator, and it, too, operated properly.

On June 27, 1986, decedent’s representative instituted a suit against Martin Boehne, driver of the tractor, and his employers, James Meredith and Michael Probst. Plaintiff later amended his complaint to include Deere & Company, manufacturer of the cultivator; Grumman Allied Industries, Inc., manufacturer of the step van; and Remlinger Manufacturing Co., Inc., manufacturer of the harrow. In his fifth amended complaint plaintiff alleged that Deere designed, manufactured, and sold the cultivator; that the cultivator was defectively designed because its extension arms were of such excessive length that it could not be transported on the highway without blocking the oncoming lane of traffic; and that the design was also defective because the cultivator lacked a safety mechanism for folding the extension arms into a position safe for highway traffic and warning devices to alert oncoming vehicles that their traffic lane was blocked by the cultivator. Additionally, plaintiff alleged that the cultivator was designed so that its width exceeded the minimum width of highways required by Illinois law.

Deere denied the allegations of plaintiff’s complaint and later filed its motion for summary judgment with supporting memoranda. Defendant also filed numerous depositions and affidavits in support of its motion as well as exhibits, which included photographs of the cultivator, tractor, and the overpass, and the operator’s manual for the cultivator. Plaintiff filed no counteraffidavits. In its motion and memoranda Deere detailed why the cultivator was not defective and why it did no more than furnish a condition that made the accident possible.

On May 25, 1989, the trial court heard arguments on Deere’s summary judgment motion. The court found that injuries were not compensable in products liability cases if they were caused by inherent properties in the product which were obvious to all who came in contact with the product. The court stated that virtually all products were capable of producing an injury when put to certain uses, particularly when the injury resulted from a collision with a product. It was the court’s opinion that the alleged defective condition of the cultivator did no more than make the injury possible. Accordingly, the court granted the motion for summary judgment and entered judgment in favor of Deere, finding that there was no just reason to delay enforcement or appeal. This timely appeal followed.

A motion for summary judgment should be granted only when the pleadings, depositions, admissions and affidavits establish that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Breeze v. Payne (1989), 181 Ill. App. 3d 720, 726-27.) Summary judgment is an expeditious method of disposing of a lawsuit and should only be allowed when the right of the moving party to summary judgment is free from doubt. (Mijatov v. Graves (1989), 188 Ill. App. 3d 792, 795.) If the facts of a case allow for more than one conclusion or inference, including one unfavorable to the moving party, the motion for summary judgment should be denied. Palumbo v. Frank’s Nursery & Crafts, Inc. (1989), 182 Ill. App. 3d 283, 288.

In the instant case plaintiff contends that the trial court erred in granting Deere’s summary judgment motion because a genuine issue of material fact existed as to whether Deere manufactured and distributed an unreasonably dangerous and defective product, the Deere 1010 cultivator. Plaintiff asserts that the cultivator’s dangerous and defective condition proximately caused decedent’s injuries. Specifically, plaintiff argues that the cultivator was unreasonably dangerous and defective because it was manufactured in contemplation that it would be transported on public highways, yet it was designed to be 16 feet in width when folded up for transport, a width which could not be safely transported on the highways; that the cultivator lacked mechanisms which would allow its width to be reduced to one which could be safely transported; and that the cultivator bore no warning lights or other warning apparatus to alert oncoming drivers to the dangers presented by its encroachment upon their lane of traffic.

Deere maintains that summary judgment was appropriate because the facts showed the cultivator did not subject those exposed to it to an unreasonable risk of harm. Rather, its transport and storage width, which was greater than a single highway traffic lane, was obvious and did no more than furnish a condition that made decedent’s injury possible.

To recover in strict liability in tort, a plaintiff must prove that a decedent’s injuries resulted from an unreasonably dangerous or defective condition of the product and that the condition existed at the time the product left the manufacturer’s control. (Mitchell v. Wayne Corp. (1989), 180 Ill. App. 3d 796, 805.) The fact that an injury has occurred, in and of itself, is insufficient to show the existence of a product defect. (Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill. App. 3d 432, 437.) The plaintiff must prove that the injuries derived from a distinct defect in the product which subjected those exposed to the product to an unreasonable risk of harm. (172 Ill. App. 3d at 437.) Injuries are not compensable under strict liability if they are caused by those inherent properties of a product which are obvious to all who come into contact with them. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 155.) Strict liability applies only when the product is dangerous to an extent beyond that which would be contemplated by the ordinary person with the ordinary knowledge common to the community as to its characteristics. 155 Ill. App. 3d at 155.

Whether the trial court properly held, as a matter of law, that the alleged defective condition of the cultivator in the instant case did no more than make the injury possible depends upon whether the trial court was correct in finding that the inherent danger in the cultivator in its transport mode was obvious to all who came in contact with the product. We agree with the trial court that it was.

In reaching its decision the trial court relied on three cases: Hunt v. Blasius (1978), 74 Ill. 2d 203; Murphy v. Cory Pump & Supply Co. (1964), 47 Ill. App. 2d 382; and Barr v. Rivinius, Inc. (1978), 58 Ill. App. 3d 121. In Hunt two occupants of a car were killed and three others seriously injured when the car left the paved portion of an interstate highway and collided with the post of an exit sign. A complaint was filed on behalf of the five occupants, alleging that the steel and concrete design of the exit sign post was defective because it was not reasonably safe in the event that automobiles left the paved portion of the highway and collided with the post. Plaintiffs maintained that the post, which was about five feet from the outer edge of the shoulder of the highway, should have been of a “break-away” design to avoid subjecting motorists to an unreasonable risk of injury since collisions with posts supporting exit signs placed within a few feet of the highway were foreseeable. The trial court rejected plaintiffs’ theory and granted defendant’s motion for summary judgment; the appellate court affirmed.

In affirming the judgment of both the trial and appellate courts, our supreme court recognized:

“A manufacturer is not under a duty in strict liability to design a product which is totally incapable of injuring those who foresee-ably come in contact with the product. Products liability does not make the manufacturer an insurer of all foreseeable accidents which involve its product. Virtually any product is capable of producing injury when put to certain uses or misuses. This is particularly true when injury results from a collision with the product. Injuries are not compensable in products liability if they derive merely from those inherent properties of a product which are obvious to all who come in contact with the product. [Citation.] The injuries must derive from a distinct defect in the product, a defect which subjects those exposed to the product to an unreasonable risk of harm.” (Emphasis in original.) Hunt, 74 Ill. 2d at 211.

In Murphy, plaintiff, a bystander whose left leg was mangled by the rotary blade of a riding power lawn mower after she fell in the path of the mower, alleged that the manufacturer was negligent in designing and manufacturing a mower which failed to provide any guard or shield for the blades of the mower. In affirming summary judgment in favor of the manufacturer, the court found that the manufacturer was not negligent in failing to design a safety guard or protection of some sort which would have prevented plaintiff’s injuries. The court noted that the alleged defect in the mower was not latent or concealed but obvious to anyone. The court stated that the mower would have caused no injury to plaintiff unless she, by her own acts, or by the acts of some third person, caused her to come in contact with it. The court concluded:

“Defendant should not be required to anticipate or protect against any such accident as the one which caused plaintiff’s injuries. The mower functioned properly for the purposes for which it was designed; it was without any latent defect; and its functioning created no danger or peril not known to the user.” Murphy, 47 Ill. App. 2d at 402.

In Barr plaintiff was standing in a roadway with his back to a shoulder spreader which was being pushed by a road grader. The right front wheel of the spreader struck the plaintiff’s leg, pulling it under the machine and resulting in its amputation. Plaintiff brought a strict liability action against the manufacturer of the shoulder spreader, alleging that the spreader was unreasonably dangerous in that its front wheels were not guarded. The court found that “[plaintiff’s injury was not proximately caused by any condition which made the shoulder spreader unreasonably dangerous, but rather from the conduct of plaintiff and the operator of the roadgrader.” (Barr, 58 Ill. App. 3d at 127.) The court went on to state:

“If the allegedly defective condition of the product does no more than furnish a condition by which the injury is made possible and that condition causes any injury by the subsequent act of a third person, the two are not concurrent and the existence of the defective condition is not the proximate cause of the injury.” Barr, 58 Ill. App. 3d at 127.

We believe that the trial court’s reliance on the findings in Hunt, Murphy, and Barr was well-founded as shown through our discussion below.

In the instant case the undisputed facts were that on the date of the accident plaintiff’s decedent was driving a step van; that the cultivator was being towed by a tractor driven by Martin Boehne at a slow speed from one farm to another along Route 38, a two-lane highway; that the warning lights on the tractor were activated; that the cultivator with the harrow attached was 16 feet in width in its transport mode and hung over into decedent’s lane of traffic; and that the collision occurred while both vehicles were on the overpass.

Additionally, the deposition testimony of Martin Boehne showed that he knew as he drove onto the overpass that a portion of the cultivator and harrow would extend into the oncoming lane of traffic. Michael Probst, one of the owners .of the cultivator and employer of Boehne, was also aware of this fact, having himself driven the cultivator and harrow over the overpass on several occasions. Boehne admitted that there were alternate routes to his destination, but he chose the one going over the overpass because it was the quickest.

The deposition of G. Dwight Hunter, a design engineer who had been manager of product tests for Deere, testified that in testing the 1010 cultivator consideration was given to its transportability, including its compatibility with the environment in which it was transported. Hunter stated that Deere knew that traffic lanes existed which were less than 16 feet in width and that the transportability of the cultivator could be restricted by the width of highways, bridges, farm lanes, and farm gates. Hunter related that in these instances, where passageways were narrow, it had been Deere’s experience that farmers chose alternate routes or were assisted by others who watched for oncoming traffic.

Nevertheless, the evidence showed that the transport of the cultivator was an area of importance to Deere. Deere’s representative, David Bucher, testified at his deposition that the transportation of Deere’s products on the highway was an area of concern in its test program. Deere expressed its concern in the operator’s manual for the 1010 cultivator by cautioning operators, both in the section dealing with preparing the tractor for transporting the cultivator and in the section dealing with preparing the cultivator for transportation, to use “accessory lights and devices for adequate warning to the operators of other vehicles.”

Contrary to plaintiff’s contention that the cultivator lacked any warning devices, the evidence showed that it was equipped with an amber reflector on its left-hand front extremity to define the left end of the machine for oncoming traffic and with a “slow moving vehicle” sign and two rear, red reflectors, one placed at the extreme right and the other at the extreme left of the cultivator so as to define the overall size of the machine. Additionally, the undisputed testimony of Boehne indicated that at the time of the accident the warning lights on the tractor pulling the cultivator were operating.

Plaintiff maintains that these warning devices were inadequate. However, plaintiff failed to provide the lower court with sufficient evidence to support a reasonable inference, rather than a guess, that the presence of adequate warnings would have prevented plaintiff’s injuries. Here, the danger presented by a large tractor pulling an oversize piece of farm equipment behind it was obvious. Where the danger is obvious and generally appreciated nothing is gained by a warning and none is required. (Kokoyachuk v. Aeroquip Corp. (1988), 172 Ill. App. 3d 432, 439.) Nevertheless, there were warning devices. Even if, however, these devices had been shown to have been inadequate, it was unlikely that the presence of better warnings would have prevented plaintiff’s injuries. It was the testimony of Boehne, the driver of the tractor, that upon approaching the overpass, decedent hit a dip in the highway and crossed over into Boehne’s lane of traffic right before the collision.

Plaintiff maintains that the statements of Kevin Pazin and Eugene Pazin, who were traveling behind the cultivator at the time of the collision, constitute evidence that the step van was in its own lane at the time of the accident. Both men stated the step van was in its own lane of traffic but close to the center line directly before the impact. As Deere correctly points out, however, these statements were taken over the telephone by an investigator for codefendant James L. Meredith and then filed by Meredith’s attorney with the trial court. The statements are unverified and unsworn to and, therefore, cannot be considered as evidence.

Plaintiff argues that the cultivator could have been designed so that in its transport mode it was smaller in width and, therefore, safer for highway travel. However, plaintiff presented no evidence to the trial court regarding the availability and feasibility of alternate designs at the time of manufacture of the cultivator. Just because the design used by Deere may not have been the safest possible does not mean it was unreasonably dangerous. Hunt v. Blasius (1978), 74 Ill. 2d 203; Broussard v. Huffman Manufacturing Co. (1982), 108 Ill. App. 3d 356, 366.

Moreover, the evidence presented to the court showed that the owners of the cultivator, Probst and Meredith, had altered the cultivator by removing the original Deere harrow and substituting the Remlinger harrow. This alteration not only prevented the wings of the cultivator from folding down flat during transport, as designed, but also extended the harrow beyond the width of the wings.

We find meritless plaintiff’s assertion that the State’s failure to authorize the transport of a 16-foot-wide load on the highway shows that the cultivator’s width made it unreasonably dangerous. Contrary to plaintiff’s position, transport of the cultivator was specifically authorized by statute. The Illinois Vehicle Code prescribes the general width of eight feet for any vehicle or load thereon on the highway but allows for farm loads to a width of 12 feet and portable farm buildings up to a width of 14 feet. Additionally, section 15 — 101(b) provides a specific exemption for implements of husbandry, which would include cultivators. Section 15 — 101(b) states in relevant part:

“The provisions of this Chapter governing size, weight and load do not apply to *** implements of husbandry temporarily operated or towed in a combination upon a highway provided such combination does not consist of more than 3 vehicles ***.” (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 15 — 101(b).)

Thus, the temporary transport of wide loads, such as the cultivator, upon the public highways not only was contemplated by the State but also was specifically authorized.

To establish strict liability in tort it is not sufficient that plaintiff prove the product was dangerous; he must prove it was unreasonably dangerous, or in other words, not reasonably safe. (Rios v. Niagara Machine & Tool Works (1974), 59 Ill. 2d 79, 83.) If the allegedly defective or unreasonably dangerous condition of a product does no more than furnish a condition by which the injury is made possible and that condition causes any injury by the subsequent act of a person, the two are not concurrent, and the defective condition is not the proximate cause of one’s injury. (Broussard v. Huffman Manufacturing Co. (1982), 108 Ill. App. 3d 356, 365; Barr v. Rivinius, Inc. (1978), 58 Ill. App. 3d 121, 127.) Proximate cause can only be established when there is a reasonable certainty that the defendant’s acts caused the injuries. Broussard v. Houdaille Industries, Inc. (1989), 183 Ill. App. 3d 739, 744-45.

Here, it was apparent that the encroachment of the cultivator into the oncoming lane of traffic was dangerous. The danger it presented was not unreasonable, however, as it was neither latent nor concealed; it was obvious to anyone who came in contact with it. It was also obvious that injury was likely to occur if another vehicle collided with the cultivator. Therefore, the condition of the cultivator in its transport mode did no more than furnish the condition by which the injury to decedent was made possible. Moreover, the condition would not have caused any injury to decedent but for decedent’s own act of veering into Boehne’s traffic lane, prior to the collision, or by Boehne’s act of electing to transport the cultivator over the overpass, even though he knew that the cultivator would extend into the oncoming traffic and that alternate routes existed.

We conclude that the cultivator was not unreasonably dangerous and that, based upon this factual showing, the trial court acted properly in entering summary judgment in Deere’s favor.

Accordingly, we affirm the judgment of the circuit court of Kane County.

Affirmed.

McLAREN, J., concurs.

JUSTICE REINHARD,

dissenting:

I respectfully dissent from the majority opinion for several reasons. First, I believe summary judgment was improperly granted in favor of Deere because there exists a question of material fact as to whether the cultivator, while being transported on the highway, was unreasonably dangerous. To maintain successfully a strict liability action against the manufacturer of an allegedly defective product, a plaintiff must prove that the injury or damage resulted from the condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer’s control. (Corny v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 111.) A product may be found unreasonably dangerous by virtue of a physical flaw or imperfection in the product, a design defect, or a failure of the manufacturer to warn of the danger or to instruct in the proper use of the product. (Renfro v. Allied Industrial Equipment Corp. (1987), 155 Ill. App. 3d 140, 155.) The question of whether a product is defective under any of these criteria, and therefore unreasonably dangerous, is ordinarily one of fact for the jury. Renfro, 155 Ill. App. 3d at 155.

Here, plaintiff has sought to demonstrate that the cultivator was unreasonably dangerous by alleging that the design was defective and also that the manufacturer failed to provide adequate warnings. The evidence introduced by Deere in its summary judgment motion demonstrates that the cultivator, without the harrow, was a width of 16 feet when folded up in its transportation mode and that some roadways in Illinois are of such a width that the cultivator would necessarily protrude into the oncoming lane of traffic when transported on those more narrow roadways. Such facts, at the very least, raise a material question as to whether the cultivator, as designed, was unreasonably dangerous for at least one of its intended functions, transportation from one field to another over public roadways.

While it may very well be that the fact that the cultivator was designed at a width which would necessarily result in its protruding into the oncoming lane of traffic under certain circumstances would not necessarily result in its being unreasonably dangerous if such danger were open and obvious or if adequate warnings were affixed to it, both questions raise material issues of fact which would also preclude summary judgment in this case. Arguably, in some circumstances the cultivator, while protruding into the oncoming lane of traffic, would be visible to oncoming traffic such that it would not necessarily be an unreasonably dangerous product. On the other hand, were it being transported around a sharp curve in the road, or at night, or over an overpass, as in this case, where an oncoming driver’s opportunity to observe it would be substantially limited, it may pose a substantially greater risk to those oncoming drivers exposed to it. Because there are a variety of material questions of fact relevant to the issue of whether the cultivator’s protrusion into an oncoming lane of traffic is open and obvious, it cannot be properly concluded as a matter of law that the cultivator was not unreasonably dangerous, and therefore summary judgment was improper.

Additionally, the question of the adequacy of any warnings is also one for the jury in this case. It simply cannot be said, as a matter of law, that there were adequate warnings affixed to the cultivator which would have rendered it a reasonably safe product.

I would also note at this point that neither plaintiff nor the majority raise or discuss whether summary judgment in favor of Deere as to plaintiff’s negligence counts was proper. As the issue has not been developed, I will not address it.

I also disagree with the majority’s acceptance of Deere’s argument that the allegedly defective condition of the cultivator did no more than furnish a condition by which the injury was made possible. The crucial question in this case is whether the alleged defect in the cultivator, its 16-foot transport width, proximately caused the injury to plaintiff’s decedent. The issue of proximate cause is ordinarily a question of fact for the jury. (Renfro, 155 Ill. App. 3d at 157.) Here, the cause of the accident is uncertain, and material fact issues exist in this regard. For the foregoing reasons, summary judgment for Deere was inappropriate.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY BAILEY, Defendant-Appellant.
    Second District
    No. 2-88-1255
    Opinion filed August 17, 1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Paul A. Logli, State’s Attorney, of Rockford (William L. Browers, John X. Breslin, and Rita Kennedy Mertel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Terry Bailey, was charged by indictment with the offenses of home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 11), armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2), residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3), and unlawful use of weapons by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1(a)). Following a jury trial, he was convicted of all four offenses and was sentenced to concurrent terms of 40 years’ imprisonment for home invasion, 40 years’ for armed robbery, and 5 years’ for unlawful use of weapons. No sentence was entered on the residential burglary conviction. On appeal, defendant contends that the trial court erred in giving a jury instruction that permitted the jury to consider his prior residential burglary conviction as proof of criminal tendencies. We affirm.

During its case in chief, the State offered evidence of defendant’s 1985 residential burglary conviction. Following defendant’s testimony, the State also introduced evidence that defendant had been convicted of home invasion, attempted murder and robbery in 1980. During the instruction conference, the State tendered the following as People’s instruction No. 8A:

“Evidence of a defendant’s previous conviction of an offense may be considered by you only as it may affect his believability as a witness, and must not be considered by you as evidence of his guilt of the offense with which he is charged.
However, if you find that the defendant has been convicted of residential burglary under the laws of this state, you may consider that conviction in determining whether the offense of unlawful use of weapon by a felon has been committed.”

The first paragraph of the above-quoted instruction is No. 3.13 of the Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) (hereinafter IPI Criminal 2d); the second paragraph of the instruction is the State’s modification. Defendant objected to the modified instruction and requested that the unmodified IPI Criminal 2d No. 3.13 be given. The court accepted the State’s modified instruction.

On appeal, defendant contends that the second paragraph of the instruction undermined the intended effect of the first paragraph of the instruction and allowed the jury to use a prior conviction “more generally.” Defendant argues that “the jury was effectively authorized by this instruction to consider the defendant’s prior residential burglary conviction for any purpose they wished — even to show criminal propensity.” We disagree.

Defendant was charged with, among other things, unlawful use of weapons by a felon. The jury was instructed that to sustain that charge the State was required to prove beyond a reasonable doubt that (1) the defendant knowingly possessed a firearm on or about his person, and (2) the defendant had been convicted of the felony offense of residential burglary.

Evidence of four prior convictions was introduced at trial. The home invasion, attempted murder and robbery convictions were offered only for impeachment purposes; the residential burglary conviction, however, was offered for the purpose of establishing an element of the offense of unlawful use of weapons by a felon, that is, that defendant had a prior felony conviction. Inasmuch as the prior convictions were admitted for different limited purposes, it was proper to provide instructions which differentiated those purposes. (See People v. Baldasar (1977), 52 Ill. App. 3d 305, 311, rev’d on other grounds (1980), 446 U.S. 222, 64 L. Ed. 2d 169, 100 S. Ct. 1585.) It would have been error to instruct the jury to consider the residential burglary conviction only in weighing defendant’s credibility, as defendant urged, because the prior conviction was an element of one of the offenses charged. See People v. McGee (1987), 165 Ill. App. 3d 833, 839-40.

If the unmodified IPI Criminal 2d No. 3.13 had been given to the jurors, and they followed the instruction, they would have been precluded from considering the evidence of defendant’s residential burglary conviction for any purpose other than determining defendant’s credibility and would, therefore, have been precluded from considering it for the purpose of determining whether defendant had a prior felony conviction. In effect, that instruction would have made it impossible to convict defendant of unlawful use of weapons by a felon. See People v. Edwards (1976), 63 Ill. 2d 134, 140.

The State offered the second paragraph to instruct the jury that the residential burglary conviction could be considered for other than impeachment purposes. We do not believe, however, that it authorized the jury to use the residential burglary conviction for unlimited purposes, as defendant contends. The instruction focused the jury’s consideration of the residential burglary conviction on the question of whether unlawful use of weapons by a felon had been committed. Although the instruction might have been more artfully drafted to specify that the conviction could be used only as proof of the prior conviction element of unlawful use of weapons by a felon, we conclude that when read in context with the instructions on the elements of that offense the instruction was proper.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

UNVERZAGT, P.J., and GEIGER, J., concur.


author: JUSTICE REINHARD

text:
    MARTIN RUDDOCK, Plaintiff-Appellant and Cross-Appellee, v. FIRST NATIONAL BANK OF LAKE FOREST, as Guardian of the Estate of Rowland S. Stevens, et al., Defendants-Appellees and Cross-Appellants.
    Second District
    No. 2-89-0552
    Opinion filed May 30, 1990.
    Rehearing denied September 20, 1990.

      Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan (Robert J. Hauser, of counsel), for appellant.
    Diver, Bollman, Grach & Quade, and Denis J. McKeown, both of Waukegan, and Roger A. White & Associates, Ltd., of Lake Bluff (Robert M. Bollman and Kendrick L. Scott, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Martin Ruddock, brought this action in the circuit court of Lake County against the First National Bank of Lake Forest (Bank), as guardian of the estate of Rowland S. Stevens, and Elmer and Pauline Crum, seeking damages and specific performance of a contract for the sale of a clock belonging to Stevens’ estate. Plaintiff’s complaint and amended complaint alleged that subsequent to the formation of his contract with the Bank to purchase the clock, the Bank sold and delivered the clock to the Crums, who had notice of the prior sale to plaintiff. Plaintiff also advanced a claim for tortious interference with contractual relations against the Crums. Following a bench trial, the trial court entered judgment in favor of plaintiff in the amount of $28,000 plus costs against the Bank, denying plaintiff’s claim for specific performance against the Crums. The trial court entered judgment in the Crums’ favor on plaintiff’s claim of intentional interference with contractual relations. Following consideration of the Bank’s post-trial motion, the trial court reduced the award of damages to $7,000. Plaintiff appeals, and the Bank and the Crums cross-appeal.

Plaintiff raises the following issues on appeal: (1) whether the trial court erred in denying plaintiff specific performance; (2) whether the trial court erred in the computation of damages; (3) whether the trial court erred in entering judgment in favor of the Crums on plaintiff’s claim for intentional interference with contractual relations; and (4) whether the trial court erred in denying plaintiff’s motion for attorney fees pursuant to section 2 — 611 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611). In its cross-appeal, the Bank contends that the trial court erred in awarding damages to plaintiff.

At the outset, we note that the Crums have filed a notice of cross-appeal. While the judgment below was entirely favorable to the Crums, they challenge certain findings of the trial court. One who has obtained by judgment all that has been asked for in the trial court cannot appeal from the judgment. (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 386, 457 N.E.2d 9.) Findings of the trial court adverse to the appellee do not require the appellee’s cross-appeal if the judgment of the trial court was not at least in part against the appellee. (Material Service Corp., 98 Ill. 2d at 387, 457 N.E.2d at 12.) While the judgment below provides no basis for a cross-appeal by the Crums, the issues raised therein are properly before us as the judgment may be sustained upon any ground warranted regardless of whether it was relied on by the trial court and regardless of whether the reason given by the trial court was correct. Material Service Corp., 98 Ill. 2d at 387, 457 N.E.2d at 12.

Evidence adduced at trial establishes the following facts. On March 30, 1982, the Bank was appointed guardian of the estate of Rowland S. Stevens. Ronald Kilgus, a trust officer of the Bank, was assigned to manage Stevens’ estate and provide for the support and care of Stevens, who was confined to a nursing home. During the summer of 1982 the Bank decided to sell Stevens’ clock collection in order to pay for his care. Kilgus testified that on July 13, 1982, the Bank obtained court approval to have a public sale of Stevens’ clock collection conducted. The Bank subsequently decided to conduct a private sale of the collection at Stevens’ home.

A sale was conducted on December 4, 1982. Plaintiff was in attendance at the sale and negotiated with Kilgus for the purchase of several clocks. Plaintiff gave Kilgus a list of the clocks he wanted to purchase which included an astronomical clock which is the subject of this dispute. The price for that clock was $7,000. The list indicates that another of the clocks plaintiff desired to purchase was on “hold” for another party, but the list bears no such indication with respect to the astronomical clock. Kilgus made no suggestion to plaintiff that the astronomical clock was being reserved for any other party. Plaintiff made a down payment for the clocks listed, and it was agreed that he would receive the clocks upon payment of the balance due by January 11, 1983.

On December 6, 1982, Kilgus telephoned plaintiff and informed him that he could not purchase the astronomical clock because there was a prior written agreement between Stevens and another party for the sale of the clock. Kilgus previously had a conversation with the Crums wherein they indicated that they believed they had the right to purchase the clock based upon prior negotiations with Stevens and later negotiations with the Bank.

On December 7, 1982, the circuit court of Lake County, probate division, entered an order directing the Bank to sell Stevens’ clock collection privately as soon as practical. Apparently, this was the first order authorizing a private sale of the collection.

Elmer Crum testified that he had entered into an agreement with Stevens pertaining to the clock in 1978. Apparently, the Crums were to receive the clock in exchange for installation of a burglar alarm at Stevens’ residence. After learning that Stevens had been adjudicated incompetent, Crum attempted to obtain the clock from the Bank. The Bank refused to turn over the clock to Crum but informed him that if he was owed money, he could submit a bill to the estate. Crum submitted a bill for $4,200 which was paid by the estate. Crum believed that he had reached an agreement with the estate whereby he would have a right of first refusal if the clock were ever offered for sale. A letter from Kilgus to the Crums dated May 21, 1982, pertaining to payment for the burglar alarm system states:

“Your letter dated January 4th, indicates payment was to be made in accordance with verbal agreement which, of course, the Court will not allow us to honor. Therefore, if approved, payment will be made by check. You will have an opportunity, however, to be informed when a sale of the clock collection takes place if you wish to purchase any items.”

Kilgus testified that at some time he verbally agreed to allow the Crums the first option to purchase the clock. Kilgus stated the estate received no consideration for the option.

A letter to Crum dated November 29, 1982, advised Crum of the upcoming sale of Stevens’ clock collection. Crum met with Kilgus, bur he did not remember whether Kilgus informed him of the December 4 sale date. When he met with Kilgus, Crum segregated the clocks in which he was interested, placing them around the base of the astronomical clock.

Kilgus recalled that prior to the sale the Crums telephoned him and informed him that they could not attend. Kilgus did not assure them that he would hold any clocks for them. Crum did not attend the sale on December 4. Crum testified that during that day Kilgus called and informed him that the clock had been sold to another party. Later that day Mrs. Crum telephoned Kilgus. She told him that if the clock was not Elmer’s by Monday, she would “have papers filed in the Waukegan court and stop the sale of everything until the clock was Elmer’s.”

Plaintiff tendered the balance due for the clocks, including $7,000 for the astronomical clock. The Bank returned $7,000 to him. Thereafter, plaintiff and the Crums apparently discussed the possibility of plaintiff purchasing the clock from the Crums.

Plaintiff testified that for the past 10 years he had been conducting an in-depth study of astronomical clocks. Plaintiff testified that the subject clock represented the pinnacle of the development of the precision pendulum clock in the United States. The clock was a master clock for the Western Union Time Service. Ernest Martt, a horologist, testified that the clock was 1 of possibly 12 of its type manufactured. He testified that at the time of trial the clock was worth $40,000. Plaintiff testified that the clock was worth $30,000 to $35,000 at the time of trial.

Plaintiff filed his complaint in this action on May 5, 1986. Originally, plaintiff sought relief against the Bank only, seeking an award of damages sufficient to enable him to purchase the clock from the Crums. Subsequently, on May 15, 1987, plaintiff amended his complaint, seeking specific performance against the Crums. Plaintiff’s amended complaint also advanced a claim for intentional interference with contractual relations against the Crums, seeking recovery for attorney fees allegedly incurred as a result of the Bank’s breach of its contract with him. The Crums raised the affirmative defense of laches to the claim for specific performance. With respect to the intentional interference with contract claim, the Crums raised the one-year statute of limitations for intentional torts as an affirmative defense.

On January 24, 1989, the trial court entered judgment in favor of plaintiff against the Bank in the amount of $28,000, but denied plaintiff’s section 2 — 611 motion for attorney fees. The trial court found, inter alia, that plaintiff had a valid contract with the Bank; that the Crums had no valid right of first refusal but were bona fide purchasers for value; that the action was filed within the statute of limitations and was not barred by laches-, and that the value of the clock at the time of judgment was $35,000. The trial court found in favor of the Crums on plaintiff’s claims for specific performance and intentional interference with contract. Following the filing of a post-trial motion by the Bank, the trial court reduced the damages award to $7,000.

Plaintiff initially contends that the trial court erred in failing to award him specific performance of the contract for the sale of the clock despite the fact that it had subsequently been sold and delivered to the Crums. Plaintiff maintains that, because the Crums purchased the clock with notice of the prior sale, an order of specific performance may be entered against them. The Bank responds that, under the circumstances here, denial of the equitable remedy of specific performance was proper. The Crums contend that the principle allowing a buyer under certain circumstances to obtain specific performance despite a sale to a third party is applicable only to contracts for the sale of real property. The Crums additionally maintain that plaintiff had no contract with the Stevens estate both because the evidence of negotiations between plaintiff and Ronald Kilgus does not show the formation of a contract and because at the time of these negotiations the Bank did not have court approval to dispose of the clock by private sale. Alternatively, the Crums contend that the remedy of specific performance is unavailable to plaintiff because he has an adequate remedy at law. Moreover, the Crums contend that the action against them for specific performance was barred by laches and the statute of limitations. The Crums further argue that plaintiff abandoned his contract. Finally, the Crums argue that plaintiff was not entitled to equitable relief because he was guilty of unclean hands.

Section 2 — 716(1) of the Uniform Commercial Code (Code) (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 716(1)) provides that “[sjpecific performance may be ordered where the goods are unique or in other proper circumstances.” The determination of whether to grant specific performance lies within the discretion of the trial court. (Dawdy v. Sample (1989), 178 Ill. App. 3d 118, 127, 532 N.E.2d 1128; Ill. Ann. Stat., ch. 26, par. 2 — 716, Uniform Commercial Code Comment, at 594 (Smith-Hurd 1963).) Article 2 of the Code seeks to further a more liberal attitude than some courts have shown in connection with the specific performance of contracts of sale. Ill. Ann. Stat., ch. 26, par. 2 — 716, Uniform Commercial Code Comment, at 594 (Smith-Hurd 1963).

- The requirement of uniqueness has clearly been satisfied in the present case as the evidence establishes that the clock is one of a very few of its type manufactured, may be the only one in existence, and is of historical significance. Furthermore, the Crums’ attorney stipulated the clock was unique.

The question remains whether specific performance is available in view of the fact that subsequent to plaintiff’s negotiations with the Stevens estate the clock was sold and delivered to the Crums. Plaintiff argues that because the Crums had notice of the sale to him, their purchase of the clock is no impediment to an order of specific performance. In support of this proposition, plaintiff cites, inter alia, Stein v. Green (1955), 6 Ill. 2d 234, 128 N.E.2d 743, which involved the question of a lessee’s right to possession of real property as against a subsequent purchaser of the property. The court stated, “it has long been held that every subsequent purchaser, with notice, becomes subject to the same equities as the party from whom he purchased and, although not personally liable, may be compelled to perform any contract of his vendors.” 6 Ill. 2d at 241, 128 N.E.2d at 747.

The Crums respond that the principle stated above is inapplicable to contracts for the sale of personal property. There appears to be no case law in Illinois addressing the right of a purchaser of personal property to specific performance against a subsequent purchaser with notice of the prior sale. However, cases from other jurisdictions suggest that specific performance is available in such circumstances. Myhre v. Myhre (Mont. 1976), 554 P.2d 276, involved a contract for the sale of stock. The court observed: “[t]he rule seems to be that one who acquires or purchases property, knowing that the property is subject to a contract to be sold to another, may be compelled to perform the contract in the same manner and to the same extent as his grantor would have been liable to do had the grantor not made the transfer to him.” 554 P.2d at 281; see also Chandler Trailer Convoy, Inc. v. Rocky Mountain Mobile Home Towing Services, Inc. (1976), 37 Colo. App. 520, 552 P.2d 522.

The only reason the Crums suggest for distinguishing between real and personal property in this context is that ownership interests in personal property are not subject to recordation and therefore cannot be easily discovered by potential purchasers. We are not persuaded. The rule proposed allowing specific performance would work no hardship on such unwary purchasers since notice of the prior sale is necessary.

The trial court apparently denied specific performance based on its finding that the sale to the Crums was a valid sale to a bona fide purchaser. The record clearly establishes, however, that that sale only occurred after the Crums were notified that the clock had been sold to plaintiff. Thus, this finding is in error, and, as we discuss below, the denial of specific performance was an abuse of discretion.

The Crums also contend that plaintiff had no enforceable contract with the estate. First, the Crums contend that plaintiff’s receipt and confirmation of purchase state that the clock was “on hold” for another party. This contention is meritless. Examination of the documents reveals that they refer to a different clock as being on “hold.” Second, the Crums base several arguments on language in a document entitled “conditions of sale.” However, plaintiff testified that he was never given any conditions of sale. The evidence clearly establishes an agreement whereby plaintiff would receive the clock in exchange for payment of the balance due by January 11,1983.

Third, the Crums maintain that no contract was formed because, prior to December 7, 1982, the Bank had not been authorized to sell the clock by a private sale, but, rather, was only authorized to conduct a public sale. While the private sale on December 4 may not have been specifically authorized, the lack of such court authorization did not affect the Bank’s power to sell the clock. (Cf. Equitable Life Assurance Society v. Mallers (7th Cir. 1939), 104 F.2d 567, 568-70.) Moreover, under the circumstances here, we view the court order of December 7, 1982, directing the Bank to sell the collection at a private sale, as confirming the previously conducted private sale to plaintiff.

The Crums further contend that plaintiff abandoned the contract, by notifying the Crums that he did not plan to contest the title to the clock, and, therefore, pursuant to the holding in Jones v. Dove (1943), 382 Ill. 445, 47 N.E.2d 447, plaintiff is not entitled to specific performance. The court in Jones stated as follows:

“The law is well settled that one who has abandoned a contract and has delivered up possession of property in pursuance of his declaration that he is unable to fulfill such contractual obligations is not entitled to specific performance of such contract. The rule in equity is that he must show that he has always been ready, willing and able to perform the contract on his part, and he is not entitled to specific performance if he has consented to a rescission of the contract or has abandoned it. [Citations.] Whether a contract has been rescinded or abandoned by a party to it may be deduced from circumstances or course of conduct clearly evincing such rescission or abandonment.” 382 Ill. at 452-53, 47 N.E.2d at 450.

In the present case, plaintiff showed his willingness and ability to perform prior to the Bank’s repudiation of the contract. Plaintiff’s preliminary indication to the Crums that he would not pursue a claim based on the breach does not constitute abandonment or consent to rescission of the contract under the circumstances. During 1983, plaintiff continued to question the Crums about their alleged verbal agreement to purchase the clock until they refused to speak with him. He also contacted the Bank during 1983 reasserting his legal right to the clock. While other personal matters prevented plaintiff from filing suit until later, the claim was never abandoned.

The Crums additionally maintain that an award of damages was an adequate remedy at law and, accordingly, plaintiff was not entitled to specific performance. This position is without merit. The fact that a value can be assigned to an item of personalty does not necessarily make damages an adequate remedy. The Code’s principal requirement for an order of specific performance is that the goods be unique. (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 716.) Here, the record clearly demonstrates that the clock is unique.

The Crums argue that the trial court erred in not invoking the doctrine of laches to bar this action because although plaintiff’s cause of action, if any, arose in December 1982, he did not file suit against the Crums until May 15, 1987. The Crums contend that a letter sent to them by plaintiff, stating that he understood their position, was calculated to lull them into believing he would not bring suit against them. The Crums also note that during the period following the alleged breach and prior to the commencement of the action against them for specific performance, the value of the clock increased dramatically. The Crums maintain that under these circumstances the equitable defense of laches is applicable.

Laches is an equitable principle which bars recovery by a litigant whose unreasonable delay in bringing an action for relief prejudices the rights of the other party. (People ex rel. Daley v. Strayhorn (1988), 121 Ill. 2d 470, 482, 521 N.E.2d 864.) Whether the defense of laches is available is to be determined based upon the facts and circumstances of each case. (Nancy’s Home of the Stuffed Pizza, Inc. v. Cirrincione (1986), 144 Ill. App. 3d 934, 941, 494 N.E.2d 795.) Mere delay in asserting a right does not constitute laches. (Cirrincione, 144 Ill. App. 3d at 941, 494 N.E.2d at 800.) A defendant must show prejudice or hardship rather than mere passage of time. Cirrincione, 144 Ill. App. 3d at 941, 494 N.E.2d at 800.

The Crums note that it has been stated that “a marked appreciation or depreciation in the value of the property which is the object of controversy, such that the granting of relief would itself work an inequity, is evidence of injury or prejudice justifying the invocation of laches. *** In regard to the right at equity to have specific performance of a contract of sale, unreasonable delay coupled with a material advance in value is fatal, for equity will not allow a purchaser to remain in the wings gambling on the future rise in price.” (Schroeder v. Schlueter (1980), 85 Ill. App. 3d 574, 576-77, 407 N.E.2d 204.) As the Crums note, the highest appraisal of the clock at the time of sale was $7,000. At the time of trial, testimony placed the value between $30,000 and $40,000. Even so, under the circumstances here, we do not view the increase in value as requiring application of the doctrine of laches, particularly in view of the fact that plaintiff’s delay in asserting his claim against the Crums may have been, in part, attributable to the fact that he was initially attempting to negotiate a purchase of the clock from them. Nor is there any indication that plaintiff waited to file suit to take advantage of any expected increase in value.

The Crums also point out that they expended a fairly substantial sum of money, $2,500, restoring the clock. Nonetheless, as an equitable remedy can be fashioned to compensate the Crums for benefits conferred by restoration work, we do not view their expenditure of money as necessarily foreclosing an award of specific performance. It is well established that application of the doctrine of laches is within the sound discretion of the trial court and a finding by that court will not be disturbed on review unless the determination is so clearly wrong as to constitute an abuse of discretion. (In re Marriage of Yakubec (1987), 154 Ill. App. 3d 540, 544, 507 N.E.2d 117.) We find no abuse of discretion in the trial court’s finding with respect to laches.

The Crums further argue that the trial court erred in not finding that the suit against them was barred by the statute of limitations. The Crums contend that the four-year period specified in section 2 — 725 of the Code (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 725) is the applicable limitations period. The statute of limitations is an affirmative defense which must be pleaded and proved by a defendant. (Findley v. Posway (1983), 118 Ill. App. 3d 824, 827, 455 N.E.2d 861.) During the proceedings below, the Crums pleaded the statute of limitations for intentional torts as an affirmative defense to the intentional interference with contract claim. The Crums raised the issue of the Code’s limitations period for the first time during closing arguments, but they never moved to amend their pleadings. Their failure to plead this provision constitutes a waiver of the defense. See Shute v. Chambers (1986), 142 Ill. App. 3d 948, 951-52, 492 N.E.2d 528.

The Crums also contend that plaintiff is guilty of unclean hands. While the Crums raise some argument in their brief on this issue, they cite no authority in support of their argument as required by Supreme Court Rule 341(e)(7) (113 Ill. 2d R. 341(e)(7)). This contention is therefore waived. (Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, 1092, 494 N.E.2d 171.) In any event, there is no merit to this contention.

With respect to plaintiff’s right to specific performance, the Bank contends that the trial court properly relied on plaintiff’s delay in filing the action for specific performance and the increase in the clock’s value in denying specific performance. It is apparent, however, from the trial court’s rejection of the defense of laches that the trial court did not rely on these factors, but, rather, denied specific performance based upon its conclusion that the Crums were bona fide purchasers against whom specific performance would not lie. That finding was erroneous as we have previously determined.

For all the foregoing reasons, we conclude that the trial court abused its discretion in refusing to order specific performance. In view of our resolution of this issue, it is unnecessary to consider issues pertaining to the proper measure of damages raised in plaintiff’s appeal and the Bank’s cross-appeal.

Plaintiff next contends that the trial court should have entered judgment for him on his claim for intentional interference with contractual relations against the Crums. As this court has recently observed, the elements of tortious interference with a contractual relationship are:

“(1) a valid and enforceable contract between the plaintiff and- a third party; (2) the defendant’s awareness of the contractual relationship; (3) the defendant’s intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the third party caused by the defendant's wrongful conduct; and (5) damages resulting from the breach.” Dangeles v. Muhlenfeld (1989), 191 Ill. App. 3d 791, 800, 548 N.E.2d 45.

Plaintiff contends the above elements were proved in the instant case insofar as the evidence shows that he had a valid contract of which the Crums were aware and that the Crums, by their threat of legal action, induced the Bank to breach the contract. The court’s decision in a bench trial will not be overturned unless it is manifestly against the weight of the evidence. Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624.

Section 773 of the Restatement (Second) of Torts provides:

“One who, by asserting in good faith a legally protected interest of his own or threatening in good faith to protect the interest by appropriate means, intentionally causes a third person not to perform an existing contract or enter into a prospective contractual relation with another does not interfere improperly with the other’s relation if the actor believes that his interest may otherwise be impaired or destroyed by the performance of the contract or transaction.” (Restatement (Second) of Torts §773 (1979).)

In the instant case, the trial court could properly conclude that the Crums acted in good faith, believing they had a valid claim to the clock, and, accordingly, their interference was not improper. (See Restatement (Second) of Torts §773, Illustration 1 (1979); see also Clifton-Strode, No. 2, Inc. v. Kent (1982), 110 Ill. App. 3d 525, 528-29, 442 N.E.2d 666.) The court’s finding against plaintiff on this claim is not against the manifest weight of the evidence.

Plaintiff also contends that the trial court erred in denying him an award of attorney fees against the Bank pursuant to section 2 — 611 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611). Plaintiff contends that the Bank’s answer contains several untrue denials and the trial court’s denial of attorney fees is attributable to its erroneous belief that former section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41) governed and that a showing of bad faith was necessary.

Section 2 — 611 of the Civil Practice Law, as in effect at the time the pleadings at issue were filed, provided, in pertinent part, as follows:

“§2 — 611. Untrue statements. 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.

It is not sufficient that the facts are ultimately adverse to the pleadings as set forth in the trial court. (Schnack v. Crumley (1982), 103 Ill. App. 3d 1000, 1005, 431 N.E.2d 1364.) The moving party must show that the party against whom sanctions are sought knew or should have known that the statements were untrue. (See Dayan v. McDonald’s Cory. (1984), 126 Ill. App. 3d 11, 16, 466 N.E.2d 945.) Moreover, an award of attorney fees rests entirely within the discretion of the trial court.

In the instant case, plaintiff has failed to point to any evidence in the record that the Bank knew or should have known that the denials were untrue. Additionally, as the Bank notes, certain of plaintiff’s allegations contained legal conclusions as to the validity of a contract. Under the circumstances here, we find no abuse of discretion in the denial of fees.

Plaintiff notes, however, that the trial court at one point erroneously referred to the requirement that bad faith be shown. That requirement was eliminated by the legislature in 1976. (See Dayan, 126 Ill. App. 3d at 16, 466 N.E.2d at 949.) However, this misstatement occurred early in the proceedings and prior to the trial court’s decision to deny fees. We do not view this comment as indicating that the trial court misapplied the law.

As previously discussed, the trial court abused its discretion in denying specific performance. In view of the fact that the Crums purchased from the Stevens estate the clock for the same amount as plaintiff contracted to pay the estate, an appropriate order of specific performance requires payment of the purchase price of $7,000 by plaintiff to the Crums. Moreover, the Crums are entitled to compensation for the benefit of the restoration work performed on the clock. We note that during the proceedings below and in his appellate brief plaintiff indicated his willingness to compensate the Crums for the cost of repairs. The record shows that the Crums expended $2,500 in repairing the clock. Accordingly, we reverse the portion of the judgment of the circuit court denying plaintiff specific performance and awarding plaintiff damages, and, pursuant to Supreme Court Rule 366(a)(5) (107 Ill. 2d R. 366(a)(5)), the Crums are ordered to deliver the clock to plaintiff upon payment of $9,500. In other respects, the judgment of the circuit court is affirmed.

Affirmed in part; reversed in part.

INGLIS and DUNN, JJ., concur.


text:
    ROBERT H. SCUDDER, Third-Party Plaintiff-Appellant, v. HANOVER INSURANCE COMPANY et al., Third-Party Defendants-Appellees.
    Second District
    No. 2-89-0783
    Opinion filed August 23, 1990.

      Phyllis Lamken, of Holmstrom & Green, of Rockford, for appellant.
    Justin J. Power and Patrick T. Walsh, both of O’Connor, Schiff & Myers, of Chicago, and John P. McTighe, of McKenna, Storer, Rowe, White & Far-rug, of Wheaton, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Third-party plaintiff, Robert Scudder, appeals from an order of the circuit court of Du Page County granting summary judgment to third-party defendants, Hanover Insurance Company (Hanover), and Economy Fire and Casualty (Economy). On appeal, Scudder maintains that an issue of fact existed as to whether he subjectively intended to harm four adolescent boys that he sexually molested, thus precluding entry of summary judgment on the issue of whether Scudder’s homeowners policies with Hanover and Economy provided coverage to him for damages suffered by the boys as a result of the sexual assaults. Scudder also argues that Hanover and Economy were estopped from denying him coverage. We affirm.

The four boys filed a complaint against Scudder on January 3, 1985, which they subsequently amended twice. In the second amended complaint, the first boy alleged that Scudder took him on a fishing trip which began on July 16, 1984. At one point during the course of the trip, Scudder intentionally fondled the sexual organs of the boy, who was 13 years old at the time. Approximately one year earlier, Scudder had intentionally fondled the boy’s sex organs while they were in Scudder’s home in Darien.

Two other boys alleged in the second amended complaint that Scudder intentionally fondled their sex organs during the July 1984 fishing trip. One of the boys was 14 years old at the time; the other was 12. The boys further alleged that, during the trip, Scudder caused their hands to come into contact with his penis for the purpose of his sexual gratification. A fourth boy alleged that, on several occasions during June and July 1984, Scudder intentionally fondled his sex organs. The boy was 13 years old at the time.

Scudder was arrested in Kentucky during the fishing trip after one of the boys reported him to the local police. Charges were subsequently brought against him in the circuit court of Du Page County. Scudder eventually pleaded guilty to four counts of taking indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4). The court sentenced him to one year of periodic imprisonment and a four-year term of probation. Two of the four counts related to incidents that were also alleged in the underlying civil suit by the four boys.

At the time of the alleged sexual assaults mentioned in the complaint filed by the four boys, Scudder was insured by both Hanover and Economy. Scudder’s homeowners policy with Hanover provided coverage for bodily injury to others but contained a clause which excluded coverage for bodily injury “which is expected or intended by the insured.”

Scudder also had a personal catastrophe liability policy that had been issued by Hanover. This policy provided coverage for personal injury to others and defined personal injury as follows:

“Physical injuries to a person including but not limited to death, and injuries to a person’s feelings or reputation; such as mental injury, mental anguish, shock, libel, slander, defamation of character, invasion of privacy or false arrest, so long as these injuries are not intended by you.”

The policy went on to state as follows:

“If you intended to cause the property damage or personal injury, you are not covered except for assault and battery committed to save life or property.”

The homeowners policy issued to Scudder by Economy provided coverage for bodily injuries to others. The policy also contained a clause which excluded coverage for bodily injury “which is expected or intended by the insured.” An endorsement to the policy amended the definition of bodily injury to include personal injury if the insured paid an additional premium, which Scudder did. The endorsement defined personal injury as bodily injury, sickness, disease, death, disability, shock, mental anguish, or mental injury resulting from false arrest, false imprisonment, wrongful eviction, wrongful detention, malicious prosecution, humiliation, libel, slander, invasion of privacy, assault and battery committed for the purpose of protecting persons or property, or assault and battery not committed by or at the direction of a covered person. The exclusion for injuries “which are expected or intended by the insured” did not apply to personal injury coverage. The policy did state, however, that personal injury coverage does not apply to injury caused by violation of a penal law committed by the insured.

Scudder had additional liability coverage as a result of an estate protector umbrella liability endorsement issued by Economy for which Scudder paid an additional premium. The endorsement stated that the additional coverage does not apply to “an act committed by a covered person with intent to cause personal injury or property damage.”

Economy and Hanover paid for independent counsel to defend Scudder in the action brought by the four boys for approximately one year. Both companies informed Scudder early in 1986, however, that they would no longer do so because their policies did not cover injuries resulting from the alleged sexual assaults. On February 27, 1986, Scudder filed a third-party complaint in which he sought a declaratory judgment that Economy and Hanover were obligated to defend and indemnify him in the underlying action brought by the four boys.

A jury trial was held in the underlying action in June 1987. The jury awarded compensatory and punitive damages to each of the four boys. Economy and Hanover subsequently filed motions for summary judgment in Scudder’s declaratory judgment action. The trial court entered an order on February 16, 1989, granting summary judgment to Economy and Hanover. Scudder filed a timely notice of appeal following the denial of his motion to reconsider.

Scudder contends that Economy and Hanover had a duty to pay for his defense in the underlying action brought by the four boys. An insurance company’s obligation to provide or pay for counsel for its insured depends upon the allegations of the complaint and the applicable provisions of the insurance policy. (Altaf v. Hanover Square Condominium Association No. 1 (1989), 188 Ill. App. 3d 533, 542.) The insurer must defend its insured if the complaint alleges facts which are within or potentially within policy coverage. (West American Insurance Co. v. Vago (1990), 197 Ill. App. 3d 131, 136.) In determining whether there is a duty to defend, the allegations of the complaint must be construed liberally, and any doubts must be resolved in favor of the insured. Vago, 197 Ill. App. 3d at 136.

In Vago, the underlying tort complaint was filed by a country club waitress who alleged that, while she was working, defendant grabbed her from behind, locked his arms around her waist and prevented her from escaping, and thrust his pelvis against her buttock several times while he had an erection. (197 Ill. App. 3d at 133.) Two insurance companies which had issued homeowners policies to defendant filed an action for a declaratory judgment that they had no duty to defend or • indemnify him with regard to the tort action. Both policies excluded coverage for bodily or personal injury “which is expected or intended by the insured.” 197 Ill. App. 3d at 134.

This court held in Vago that there was no duty to defend or indemnify, relying in part on our supreme court’s decision in Bay State Insurance Co. v. Wilson (1983), 96 Ill. 2d 487. In Bay State, the court considered an exclusionary provision nearly identical to the one in Vago and stated that injuries of such a nature that they should have been reasonably anticipated by the insured are “expected” injuries under such a provision. (Bay State, 96 Ill. 2d at 491.) Applying this principle in Vago, this court stated that the underlying tort complaint alleged that defendant deliberately sexually assaulted the waitress and he must have been aware that such conduct was practically certain to cause her to suffer emotional injuries. (Vago, 197 Ill. App. 3d at 137.) Accordingly, we concluded that the exclusionary provisions in the two policies were applicable and there was no coverage. 197 Ill. App. 3d at 137-38.

The Hanover homeowners policy contained an exclusion for injuries “expected or intended by the insured,” just as the policies did in Vago. The underlying complaint in this case alleges that Scudder deliberately sexually assaulted four minor boys. Since the alleged victims were minors, the potential for emotional harm was even greater than in Vago, and Scudder should have reasonably anticipated such harm would result from his actions. We therefore conclude the above exclusionary provision was applicable, and the Hanover homeowners policy provided no coverage with respect to the allegations of the four boys.

The Economy, homeowners policy, which provided coverage for bodily injury to others, also contained the above exclusion. An endorsement to that policy, however, added personal injury to the definition of bodily injury and defined personal injury as injury resulting from a number of specified tortious acts. The endorsement stated that the exclusion for injuries intended or expected by the insured did not apply to personal injury liability. The exclusion still applied to actions within the original definition of bodily injury, however.

The additional personal liability coverage clearly does not apply because of the provision excluding coverage for injuries caused by violation of a penal law committed by the insured. The actions alleged in the underlying complaint were each violations of the criminal statute prohibiting adults from taking indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4). Therefore, the endorsement adding coverage for personal injury to the bodily injury coverage in the Economy policy was not applicable. Since the exclusion for injuries intended or expected by the insured is applicable to the original bodily injury coverage, and, as we have seen, that exclusion applies to Scudder’s alleged sexual assaults, there is no coverage under the Economy homeowners policy or the endorsement adding coverage for personal injury to the bodily injury coverage.

The Hanover personal catastrophe liability policy and the Economy estate protector umbrella liability did not contain the exclusionary clause that was present in Vago and the other policies in this case. Instead, the Hanover personal catastrophe policy stated the insured party was not covered “if [he] intended to cause the property damage or personal injury.” The Economy estate protector umbrella liability endorsement excluded coverage for acts “committed by a covered person with intent to cause personal injury or property damage.” Scudder argues that since he testified at his deposition that he did not intend to harm the boys when he molested them, a question of fact remains concerning the applicability of these exclusions which should have precluded entry of summary judgment.

In Cowan v. Insurance Co. of North America (1974), 22 Ill. App. 3d 883, the court considered the meaning of an insurance policy exclusionary provision which, like the two provisions mentioned in the preceding paragraph, excluded coverage for any act committed by the insured with intent to cause personal injury. The court held that such a provision only absolves an insurance company from liability if the insured acted with specific intent to cause harm to a third party. (Cowan, 22 Ill. App. 3d at 892-93.) Cowan was recently cited with approval in Allstate Insurance Co. v. Carioto (1990), 194 Ill. App. 3d 767, 778. Furthermore, our supreme court has stated that the terms “expected” and “intended” in an insurance policy exclusionary clause are not synonymous and that a greater degree of proof is required to establish intent than expectation (Bay State Insurance Co. v. Wilson (1983), 96 Ill. 2d 487, 494), providing additional support for the holding in Cowan. We agree with Scudder that, under Illinois law, policy provisions excluding coverage for acts committed by the insured with intent to cause personal injury will only exclude coverage if the insured acted with specific intent to injure, unless the policy states otherwise.

The vast majority of jurisdictions which have considered cases involving the applicability of policy exclusions such as the one in Cowan to situations involving sexual abuse have determined that it will be inferred as a matter of law from such conduct that the insured intended to injure the victim or victims and have denied coverage. (See, e.g., Allstate Insurance Co. v. Kim W. (1984), 160 Cal. App. 3d 326, 332, 206 Cal. Rptr. 609, 613; Altena v. United Fire & Casualty Co. (Iowa 1988), 422 N.W.2d 485, 490; Harpy v. Nationwide Mutual Fire Insurance Co. (1988), 76 Md. App. 474, 487, 545 A.2d 718, 725; Linebaugh v. Berdish (1985), 144 Mich. App. 750, 757, 376 N.W.2d 400, 405; Fireman’s Fund Insurance Co. v. Hill (Minn. 1982), 314 N.W.2d 834, 835; Atlantic Employers Insurance Co. v. Tots & Toddlers Pre-School Day Care Center, Inc. (1990), 239 N.J. Super. 276, 284, 571 A.2d 300, 304; Allstate Insurance Co. v. Thomas (W.D. Okla. 1988), 684 F. Supp. 1056, 1060 (applying Oklahoma law); Rodriguez v. Williams (1986), 107 Wash. 2d 381, 387, 729 P.2d 627, 630; Horace Mann Insurance Co. v. Leeber (W. Va. 1988), 376 S.E.2d 581, 587; N.N. v. Moraine Mutual Insurance Co. (1990), 153 Wis. 2d 84, 91, 450 N.W.2d 445, 450.) In several cases, courts have refused to make such an inference. See, e.g., MacKinnon v. Hanover Insurance Co. (1984), 124 N.H. 456, 471 A.2d 1166; Allstate Insurance Co. v. Mugavero (1989), 142 Misc. 2d 361,_, 537 N.Y.S.2d 961, 963-64.

Scudder argues that this court should not consider out-of-State authorities on this issue because Illinois courts will only look to the law of other jurisdictions as persuasive authority in the absence of Illinois authority on the point of law in question. (People ex rel. Watson v. Spinka (1978), 58 Ill. App. 3d 729, 734.) We have looked to Illinois cases in determining that the policy exclusions for acts committed by the insured with intent to cause personal injury only apply if the insured specifically intended to harm the victim or victims. The issue of whether such specific intent to injure should be inferred as a matter of law in cases involving sexual abuse, however, is a question of first impression in Illinois. We note that in several of the aforementioned cases from other jurisdictions, the courts have determined that similar policy exclusions would only apply if the insured specifically intended to injure the victim, but they have still held such an inference should be made. (See e.g., Linebaugh v. Berdish (1985), 144 Mich. App. 750, 755, 376 N.W.2d 400, 403-04; Fireman’s Fund Insurance Co. v. Hill (Minn. 1982), 314 N.W.2d 834, 835; Rodriguez v. Williams (1986), 107 Wash. 2d 381, 387, 729 P.2d 627, 630; Horace Mann Insurance Co. v. Leeber (W. Va. 1988), 376 S.E.2d 581, 585 n.7.) It is clearly appropriate for this court to consider cases from other jurisdictions in determining whether an inference of intent to harm as a matter of law is appropriate in sexual abuse cases involving minors.

We agree with the majority view that such an inference should be made as a matter of law. Courts which have recognized such an inference have done so in large part because of the inevitability of injury in sexual abuse cases, especially when the victims are minors. (See Allstate Insurance Co. v. Kim W. (1984), 160 Cal. App. 3d 326, 332-33, 206 Cal. Rptr. 609, 613; Linebaugh, 144 Mich. App. at 757, 376 N.W.2d at 405; Leeber, 376 S.E.2d at 585.) Such an inference is also consistent with this court’s recent conclusion that emotional harm is practically certain to result from sexual assaults. (See West American Insurance Co. v. Vago (1990), 197 Ill. App. 3d 131, 137.) Although Scudder’s sexual contacts with the minors in this case did not involve penetration and apparently did not involve the use of force, courts have not hesitated to apply the above inference in cases involving “nonviolent” sexual abuse. (See Allstate Insurance Co. v. Thomas (W.D. Okla. 1988), 684 F. Supp. 1056, 1058-59; Leeber, 376 S.E.2d at 585-86.) In our view, these cases properly recognize the inevitably of emotional harm to minors from sexual abuse in all forms even if the abuse was not accomplished through violence or threats of violence.

We therefore conclude that the trial court acted properly by inferring as a matter of law that Scudder intended to injure the four boys when he molested them. Therefore, the exclusionary provisions in the Hanover personal catastrophe liability policy and the Economy estate protector umbrella liability endorsement for intentionally caused injuries were applicable, and there was no coverage under the Hanover or Economy policies with respect to the actions alleged in the complaint brought by the four boys. Hanover and Economy therefore had no duty to defend Scudder or pay for his defense. Since there was no duty to defend Scudder, the companies also had no duty to indemnify him. Vago, 197 Ill. App. 3d at 138.

Scudder argues that Hanover and Economy were estopped from raising a defense of noncoverage. He cites La Rotunda v. Royal Globe Insurance Co. (1980), 87 Ill. App. 3d 446, 452, for the proposition that if an insurer refuses to defend, it is estopped from later alleging that the insured was not covered under the policy. (La Rotunda, 87 Ill. App. 3d at 452.) The court went on to state in La Rotunda, however, that if there is clearly no coverage when the policy and underlying complaint are examined, then there is no estoppel. (87 Ill. App. 3d at 452.) Since we have determined as a matter of law that there is no coverage with regard to the actions alleged in the four boys’ complaint, we conclude there is no estoppel.

For the above reasons, the order of the circuit court of Du Page County granting summary judgment to Economy and Hanover is affirmed.

Affirmed.

McLAREN and REINHARD, JJ., concur.