author: JUSTICE DUNN

text:
    GERALD MAGNUSON, Plaintiff-Appellee, v. ALAN P. SCHAIDER, Defendant-Appellant (Alan P. Schaider, Plaintiff-Appellant; Magnuson Industries, Inc., Defendant-Appellee and Plaintiff-Appellee; Gerald Magnuson et al., Defendants-Appellees).
    Second District
    Nos. 2 — 88—0682 through 2 — 88—0684 cons.
    Opinion filed May 12, 1989.

      Liebovich & Weber, P.C., of Rockford (Theodore Liebovich, of counsel), for appellant.

      Martenson & Associates, of Rockford (David L. Martenson, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

This is a consolidated appeal from orders of summary judgment entered in three cases. The three cases involve disputes arising from an agreement in which Alan Schaider purchased a tavern from Gerald Magnuson and Magnuson Industries, Inc. (Industries). Schaider appeals from judgments against him in all three cases. In No. 87 — L— 210, the court granted summary judgment to defendants Gerald Magnuson, Stewart Magnuson, and Industries, in Schaider’s suit for breach of contract. In No. 87 — L—225, summary judgment was entered in favor of Industries in its suit against Schaider for $9,200 for four months’ rent and $10,924 for fraudulent misrepresentation. In No. 87 — L—192, summary judgment was entered for Magnuson on a confession of an installment judgment note against Schaider for $164,171.67. Schaider raises six issues on appeal. Schaider’s essential contentions on appeal are that the court erred in dismissing all but one count of his complaint and that summary judgment should not have been granted in any of these cases because there remains material disputed questions of fact. We affirm in part and reverse in part.

Schaider purchased from Gerald Magnuson and Industries a bar called the Mating Place. The agreement was comprised of four documents: a stock purchase agreement, a purchase and sale agreement, an installment judgment note for $100,000, and a lease. Under the stock purchase agreement, Schaider purchased from Gerald Magnuson all the stock of the Mating Place, Inc., for $170,000, $100,000 to be paid by a promissory note. Also, in consideration for the $170,000, under the purchase and sale agreement, Schaider received all of the assets and fixtures of the bar from Magnuson and Industries. The promissory note was an installment judgment note for $100,000 which provided that Schaider would make monthly payments of $1,266.76 to Gerald Magnuson for 10 years. Under the lease Schaider rented the bar premises from Industries for 36 months for $2,300 a month. Also under the lease, Schaider was required to maintain dramshop insurance for himself and the landlord, Industries.

The contracts provided for remedies upon default. The lease provided Schaider with a right to notice and 10 days to cure a rental default and 20 days to cure any other defaults. The stock purchase agreement provided Schaider 15 days to cure a default, but also contained a provision which allowed Gerald Magnuson to take immediate possession upon default. The stock purchase agreement also provided that Schaider’s promissory note would be secured by a purchase money security interest covering all assets of the bar. The installment judgment note provided that upon default the holder could declare the entire balance due without notice.

On June 6, 1986, Gerald Magnuson and Industries sent notice to Schaider that he was in default on the installment note, the lease, and the stock purchase agreement. The notice did not specify how and when Schaider defaulted. The notice demanded full payment on the note, payment of all amounts due under the lease, payments due under the stock purchase agreement, and stated an intent to terminate the lease and exercise all rights under the lease unless the default was corrected within the time allowed under the lease.

The evidence is undisputed that when notice of default was sent, Schaider owed two months’ rent, two months’ on the note, and did not have dramshop insurance as required under the lease. In his deposition, Schaider stated that sometime in May 1986 he told Gerald Magnuson, president of Industries, that he had a cash-flow problem, and Magnuson told him he could delay his payments until the first of June. When that time arrived, Schaider was told by Stuart Magnuson, Gerald’s son and an agent of Industries, that Gerald was out of town and Schaider could make his payments after he returned from his trip to Hawaii, for which he was leaving June 6, 1986. Schaider also stated he told Stuart he was having trouble with his dramshop insurance premium, and Stuart told him he knew of another company that he could arrange to provide him with insurance. Stuart told him he would take care of it. Schaider told Stuart to seek payment for the insurance from his manager Curt Cleaveland.

Stuart Magnuson, in an affidavit, denied telling Schaider that he could defer his payments until his return from Hawaii.

On the night before the notice of default was sent, June 5, 1986, Gerald Magnuson visited the tavern and talked with Curt Cleaveland, who managed the bar for Schaider. According to Cleaveland’s deposition, Magnuson told him that the dramshop insurance on the bar had been canceled and that Cleaveland should close the bar. At the end of the night, Cleaveland told the employees that the bar would be closed until Schaider returned from Hawaii. Cleaveland stated that it was his decision to close the bar. He did not contact Schaider before he made this decision. Cleaveland also stated that Magnuson told him that night that he would pay him $6,000, the amount Schaider owed him for loans he made to Schaider. Magnuson also told Cleaveland he would pay him $400 a week, $100 more than Schaider paid him, to keep an eye on the bar while it was closed.

Warren Johnson testified in a deposition that he used to be part owner of the tavern with Schaider prior to June 1986. He received a phone call from an employee of the tavern on June 6 who told him that the bar had been closed after Gerald Magnuson spoke to Cleave-land. Johnson phoned Schaider, who was at the airport waiting for a flight to Hawaii. When Johnson told him what happened, Schaider asked him to do what he could to keep the bar open. Johnson stated that he had many conversations with Schaider on this morning.

Johnson also talked to Cleaveland, who told him the bar was closed because the dramshop insurance expired. Johnson told Cleave-land that Schaider requested that Cleaveland use the money Schaider left him to pay for the insurance. Schaider stated in his deposition that he left Cleaveland $3,000. Kathy Culich, Schaider’s insurance agent, stated in a deposition that she needed $1,260 to renew the insurance. Johnson told Cleaveland that he would help pay for the insurance if Cleaveland did not have enough money. Johnson also called Kathy Culich to let her know that Cleaveland would be contacting her about renewing the insurance. Later that day, Cleaveland told Johnson that he had contacted Culich to discuss the insurance, but he also stated to Johnson that more was involved than dramshop insurance; Schaider owed Magnuson money. Johnson contacted Stuart Magnuson and offered to pay him the funds to keep the tavern open. Magnuson told him not to get involved because there was more going on than he knew about. Johnson talked to Culich again. She stated Cleaveland indicated that he would deliver the money for the insurance but never did so. Johnson himself did not offer to pay Culich. Johnson talked with Schaider later in the day, and Schaider told him to “let it go.” Schaider had spoken with his attorney, who told him the situation was more involved than it appeared.

Kathy Culich stated in her deposition that Schaider called her on June 6, 1986, and she told him that his insurance had been canceled. Schaider told her to call Cleaveland immediately because he had money to pay for reinstating the insurance. Culich said that on June 6, 1986, Cleaveland told her he would bring the money, but he did not do so. Culich went to the bar to find Cleaveland but could not locate him. On June 9, 1986, Culich received a call from Schaider, who told her not to renew the insurance because he had learned that there was more involved than reinstating his insurance.

Tim Gill stated in a deposition that he was Schaider’s attorney in June 1986. After Schaider returned from Hawaii, he met with Schaider and Cleaveland. Cleaveland told them that he was paid by Magnuson to close the tavern but that he would never testify to that in court because he was now working for Magnuson.

Schaider stated in his deposition that while in Hawaii he tried to contact Cleaveland by phone but was unable to reach him. When he returned from Hawaii on June 15, 1986, he went to the bar and found that all cash on hand was missing, as well as promotional items such as shirts, and all his books and records. He did not know who took these items. Schaider stated that he removed some inventory and sold it at this time. He did not attempt to reopen the bar when he returned.

CASE NO. 87 — L—210 - SCHAIDER V. MAGNUSON ET AL.

In No. 87 — L—210, Schaider sued Gerald Magnuson, Stewart Magnuson, and Magnuson Industries, Inc. (Industries), for breach of contract, alleging five counts: breach of the lease, breach of covenant of quiet enjoyment, breach of the purchase and sale agreement, wrongful replevin, and breach of the stock purchase agreement. Defendants moved to dismiss under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). The trial court granted the motion on all counts except count III, which alleged breach of the purchase and sale agreement; however, the trial court dismissed the request for punitive damages on this count. Schaider filed an amended complaint which was also dismissed except for count III. The court then granted summary judgment for defendants on count III.

Schaider first contends the trial court erred in granting defendant’s motion to dismiss all but one count of his amended complaint under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) because defendant’s motion failed to set forth proper grounds for dismissal under section 2 — 619.

Under section 2 — 619 a defendant may seek dismissal of a complaint where it is barred by affirmative matter which defeats the claim. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9).) If the grounds for dismissal do not appear on the face of the pleading, the motion shall be supported by affidavit. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(a).) A motion under this section admits all well-pleaded facts, but not conclusions unsupported by allegations of specific fact upon which such conclusions rest. (Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 509.) An affirmative matter asserted to defeat the claim must be something more than evidence offered to refute a well-pleaded fact. Russo v. Boland, (1982), 103 Ill. App. 3d 905, 908; Smith v. St. Therese Hospital (1980), 87 Ill. App. 3d 782, 785.

In count I of his amended complaint, Schaider alleged defendant breached the lease agreement by failing to provide adequate notice of default and a right to cure as provided in the lease agreement. Schaider specifically alleged that Magnuson sent notice to plaintiff on June 6, 1986, when defendant knew plaintiff was out of town, and thereafter Magnuson took possession and control of the leased premises, confiscating all of plaintiff’s personal property, cash on hand, business records, fixtures and inventory. Schaider also alleged that defendant closed plaintiff’s business without his knowledge or consent while he remained out of State. Schaider did not state when defendant took possession and control in this count, but an affidavit filed by Schaider in response to the motion to dismiss states that defendant did so on June 6, 1986.

As an affirmative defense, Magnuson alleged that Schaider failed to make rent payments and Schaider consented to the entry of the premises on July 1, 1986, voluntarily removing himself. An attached copy of the consent agreement states that plaintiff consented to Stewart Magnuson entering the building to clean the premises and have the locks changed. Defendant also alleged plaintiff disposed of his inventory and removed his possessions prior to defendant’s entry on July 1,1986.

Magnuson’s assertions do not affirmatively defeat plaintiff’s claim. These assertions do not defeat the essential issue raised by Schaider’s claim that defendant failed to provide proper notice or a right to cure as provided in the contract. The lease agreement provides for written notice of default by certified mail. The contract gives Schaider 10 days from the mailing of notice to cure a rent payment default and 20 days from the mailing of notice to cure any other defaults in the lease. Schaider contends that Magnuson repossessed the leased premises and the personal property on the premises on June 6, 1986, the same day notice was sent. Magnuson does not address this contention in his motion to dismiss.

Magnuson also contends that the consent agreement signed by Schaider on July 1, 1986, affirmatively defeats plaintiff’s claim. We disagree. The consent form does not affirmatively establish defendant’s right to do anything but change the locks and clean the premises. Furthermore, no matter what it authorized, it gave Magnuson no authority to repossess the premises or personal property on June 6, 1986.

In count II, Schaider alleged defendant breached the covenant of quiet enjoyment, alleging essentially the same reasons as count I. Magnuson alleged the same affirmative defense. Again, Magnuson’s assertions fail to affirmatively defeat Schaider’s claim that he was not given proper notice and a time to cure default.

In count III, Schaider alleged Magnuson breached a purchase and sale agreement for the assets and fixtures at the leased premises, alleging the same facts as count I and II. The trial court did not dismiss this count, but dismissed plaintiff’s claim for punitive damages of $250,000 under this count. On appeal, Schaider contends that the allegations of Magnuson’s wrongful foreclosure and seizure of the premises support a claim for punitive damages. Plaintiff has not cited any authority for this argument; thus, we find it waived. (See In re Marriage of Anderson (1985), 130 Ill. App. 3d 684, 688-89 (failure to cite authority in support of an argument violates Supreme Court Rule 341(e)(7) (87 Ill. 2d R. 341(e)(7)) and waives that point on appeal).) Furthermore, we point out that, generally, punitive damages are not recoverable in actions for breach of contract. (St. Ann’s Home for the Aged v. Daniels (1981), 95 Ill App. 3d 576, 580; Sabath v. Mansfield (1978), 60 Ill. App. 3d 1008, 1015.) We do not find that Schaider has properly alleged malice, wantonness, or oppression to come within the exception to this rule. St. Ann’s Home for the Aged, 95 Ill. App. 3d at 580; Wallace v. Prudential Insurance Co. of America (1973), 12 Ill. App. 3d 623, 629.

Count IV of Schaider’s complaint asserted a claim for wrongful replevin. Schaider has mischaracterized his action in this count since there is no evidence that his property was seized through a replevin action. An action in wrongful replevin is an action that claims that property was wrongfully seized through a replevin action. (See Ill. Rev. Stat. 1987, ch. 110, par. 19 — 101 et seq.) Schaider asserted Magnuson wrongfully took physical possession and control of the leased premises and all of his property contained on the premises, but he did not assert that this was done through a replevin action by Magnuson. Rather than a cause of action for wrongful replevin, this count alleges a cause of action for conversion. The essence of an action in conversion is the wrongful deprivation of property from one who has a right to its immediate possession. Yardley v. Yardley (1985), 137 Ill. App. 3d 747, 757; Bender v. Consolidated Mink Ranch, Inc. (1982), 110 Ill. App. 3d 207, 213.

Defendant’s motion to dismiss this count realleged the same affirmative defense, but also asserted that the count was inadequate at law. As already discussed, defendant’s affirmative defense assertions fail to defeat Schaider’s claim that his property was repossessed on June 6, 1986. Defendant’s other contention, that the count is inadequate at law, is not a proper section 2 — 619 assertion. This allegation should have been brought under section 2 — 615, which allows dismissal of a complaint for failure to state a cause of action. (Ill. Rev. Stat. 1987, ch.110, par. 2 — 615.) A motion to dismiss a pleading should clearly delineate under which section of the Civil Practice Act it has been brought and may not properly be combined for a joint analysis and determination. (Davis v. Weiskopf, 108 Ill. App. 3d at 508; Galayda v. Penman (1980), 80 Ill. App. 3d 423, 424-25.) Defendant should have first challenged the legal sufficiency of the complaint, and then, only when a legally sufficient cause of action had been stated, should the defendant have challenged the complaint with an affirmative defense. (See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 406.) Nonetheless, in the interests of judicial expedience, courts have reviewed section 2 — 615 motions improperly joined with other motions to dismiss. Janes, 57 Ill. 2d at 407; Herman v. Hamblet (1980), 81 Ill. App. 3d 1050, 1055.

A motion to dismiss based on plaintiff’s failure to state a cause of action must specifically point out where the pleading is insufficient at law and why it is insufficient so that the opposing party may be allowed to cure the objection by amendment. (Uptown Federal Savings & Loan Association v. Kotsiopoulos (1982), 105 Ill. App. 3d 444, 449; Danville Producers Dairy v. Preferred Risk Mutual Insurance Co. (1962), 33 Ill. App. 2d 359, 362.) Magnuson’s motion alleged Schaider failed to state what fixtures or inventory had been wrongfully possessed. In his amended complaint Schaider attached a list of inventory of the items he alleged were wrongfully possessed by defendant. Defendant did not address this amendment. Thus, defendant’s basis for dismissal no longer existed. Therefore, the dismissal of this count was error since the affirmative defenses did not defeat the claim, and defendant failed in response to the amended complaint to allege a basis to show the complaint was inadequate at law.

In count V plaintiff alleged defendant breached the stock purchase agreement, alleging essentially the same reasons covered in the other counts. In his motion to dismiss, defendant contended plaintiff was sent proper notice by registered mail. Defendant also contended that after notice was sent, plaintiff removed all inventory from the premises, failed to obtain dramshop insurance, defaulted under the City of Rockford liquor laws, and closed the premises prior to July 1, 1986. Defendant’s assertions fail to affirmatively defeat plaintiff’s essential contention that defendant wrongfully took possession of the leased premises and the personal property on the premises on June 6, 1986, thus violating the stock purchase agreement, which provided for notice and 15 days to cure default. Defendant’s contention that notice was properly sent on June 6, 1986, does not defeat this claim since Schaider claims that he was not afforded a right to cure after notice was sent. Nor does the fact that Schaider failed to maintain dramshop insurance or that he removed inventory defeat his claim that he was not afforded 15 days to cure defaults under the agreement.

We conclude that the trial court erred in dismissing counts I, II, IV, and V in Schaider’s complaint because defendant’s motion to dismiss failed to affirmatively defeat those counts for the reasons stated above.

Schaider next argues the trial court erred when it granted summary judgment in favor of Magnuson on count III of the complaint. In Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, this court reviewed the nature of summary judgment:

“A motion for summary judgment is proper where the pleadings, depositions and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).) The extreme nature of the summary judgment remedy requires that the trial court exercise extraordinary diligence in its review of the record so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a claim. (Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 793.) The trial court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Summary judgment should be granted only when the party’s right to it is clear and free from doubt. (Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 793; Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 1055.) Inferences may only be drawn from undisputed facts, and, if fair-minded persons may draw differring inferences from these undisputed facts, this presents a material issue to be tried. (Gagliardo v. Vodica (1978), 58 Ill. App. 3d 1053, 1055.) On appeal, the court will reverse an order granting summary judgment if it determines that a material issue of fact exists and that the moving party is not entitled to judgment as a matter of law. Estate of Kern v. Handelsman (1983), 115 Ill. App. 3d 789, 793.”

In count III of his complaint, Schaider realleged count I and count II, which alleged defendant repossessed the tavern premises on June 6, 1986, and alleged defendant breached the purchase and sale agreement by barring plaintiff from the leased premises and taking control and possession of the assets and inventory and failing to comply with the duties and obligations incumbent upon defendant under the lease agreement. We find no evidence that Schaider was barred from the leased premises; however, there appears to be a question as to whether defendant breached the purchase and sale agreement by taking possession and control of the assets and inventory on June 6, 1986, and in failing to comply with the lease agreement.

Before we address the facts regarding June 6, 1986, we must first determine the rights of the parties under the purchase and sale agreement. Neither party on appeal has briefed issues concerning the construction of the purchase and sale agreement or the other contracts made a part of the agreement. Where the question involves one of contract construction, a court of review may ascertain the meaning of contract provisions from the instrument itself as a matter of law, absent an ambiguity in the contract. (Tate v. Wabash Datatech, Inc. (1986), 147 Ill. App. 3d 230, 236.) In this case the four contracts that make up the purchase of the tavern must be read together as essentially one contract. “The general rule is that ‘in the absence of evidence of a contrary intention, where two or more instruments are executed by the same contracting parties in the course of the same transaction, the instruments will be considered together and construed with reference to one another because they are, in the eyes of the law, one contract.’ ” Peters & Fulk Realtors, Inc. v. Shah (1986), 140 Ill. App. 3d 301, 305, quoting Tepfer v. Deerfield Savings & Loan Association (1983), 118 Ill. App. 3d 77, 80.

With the above in mind, we consider the contracts. The contract allegedly breached in count III, the purchase and sale agreement, unlike the lease and the stock purchase agreement, does not provide for the parties’ rights and obligations upon default, but it appears that the remedies of the stock purchase agreement should apply to this contract. The assets purchased under the purchase and sale agreement are listed under the stock purchase agreement as collateral for the installment judgment note. Furthermore, a provision in the stock purchase agreement refers to these assets in describing the seller’s right to repossession upon default. It is clear that the assets included in the purchase and sale agreement have been made a part of the stock purchase agreement. Thus, we find that the remedies provided by the stock purchase agreement are applicable to the purchase and sale agreement. Next, we must construe the default remedy provisions provided under the stock purchase agreement. It appears the contract contains conflicting default provisions. One paragraph entitles the seller to immediate possession upon default; however, another paragraph appears to provide the buyer with 15 days to cure defaults. Paragraph 16 of the stock purchase agreement states:

“In the event of failure of the Buyers to make any payments as required under this Agreement, or to pay taxes or all insurance payments, or assessments when due, or the loss of the food and liquor licenses, or upon bankruptcy or an assignment for the benefit of creditors, or in the event of the Buyers’ failure to perform any other covenant under this Agreement, the Seller may declare this Agreement and Contract for Sale terminated and shall thereupon be entitled to immediate possession of said premises, fixtures and equipment and, in such event, the payments made by the Buyers may be retained by the Seller as liquidated damages.”

Paragraph 13 provides:

“In the event of default of any provision of this Agreement by Buyers, Seller shall give notice to Buyers of such default within fifteen (15) days to correct such said default.”

While at first glance paragraph 13 may seem to state that seller has 15 days to provide notice of default, but the buyer has no time to correct the default, such a construction would render the provision meaningless. It appears from the language used — “to correct such said default” — that the parties intended to provide the buyer with 15 days from receipt of notice to cure defaults. Since it is presumed that all provisions are inserted for a purpose (Bruno Benedetti & Sons, Inc. v. O’Malley (1984), 124 Ill. App. 3d 500, 506), we construe this paragraph to entitle buyer to 15 days after receipt of notice to cure a default. Thus, we find the stock purchase agreement contains conflicting provisions for remedies upon default.

In construing a contract with conflicting provisions, it is presumed that all provisions were inserted for a purpose, and conflicting provisions will be reconciled if possible so as to give effect to all of the contract’s provisions. (Bruno Benedetti & Sons, Inc. v. O’Malley (1984), 124 Ill. App. 3d 500, 506.) Here, in order to give effect to both provisions, the contract must be construed to provide a right to notice and 15 days to cure defaults coming under the stock purchase agreement and the purchase and sale agreement, and then only if the buyer fails to cure a default within the allotted time after notice was properly given, the seller may terminate the contract and take immediate possession. To read the contract otherwise, giving defendant the right to terminate and take immediate possession without providing notice and a right to cure, would render paragraph 13 superfluous. In further support of this construction we point to the lease, which provides the lessee with 10 days to cure rent defaults and 20 days to cure other defaults in the lease. The lease was also made a part of the stock purchase agreement. The stock purchase agreement provides:

“As additional collateral security, the Buyers will reassign and deliver to the Seller the Lease referred to in Paragraph 18 on condition that the Buyers may remain in possession of the Leased Premises so long as:
a. They fully comply with all of the terms and conditions of such Lease, including the prompt payment of rent.
b. They are not in default in the payment of the Promissory Note referred to in Paragraph 3.
c. They comply with the terms and conditions of the Purchase Money Security Agreement referred to in this paragraph. Upon the payment in full of the Promissory Note referred to in Paragraph 3, the Seller shall execute and deliver to the Buyers, a release of collateral and termination statement in the form required by the Secretary of State of the State of Illinois, and a reassignment of the Lease.”

If we were to construe the stock purchase agreement so that the seller was entitled to immediate possession upon default, then the cure provisions specifically provided in the lease would also be rendered superfluous. We do not believe that the parties intended to provide the seller the right to immediate possession upon default where the parties specifically provided for a right to cure in two of the contracts.

We find that before Magnuson could take any action against the assets purchased under the purchase and sale agreement, Magnuson had to allow Schaider time to cure as stated in the stock purchase agreement, that is 15 days from the receipt of notice to cure any defaults. Next, we turn to the facts alleged involving June 6, 1986, the day Magnuson sent notice of default to Schaider. Schaider contends that Magnuson closed his bar on June 6, 1986, by paying Schaider’s manager $5,000 to close it down and keep it closed, thus breaching the contract by taking control of the assets of the bar without providing time to cure the defaults. Magnuson contends that the evidence does not support Schaider’s theory that he closed the bar on June 6, 1986. It appears, however, that there is sufficient evidence to raise a question of fact on this issue.

The evidence, which consisted of affidavits and excerpts of depositions, showed the following. On June 5, 1986, Gerald Magnuson visited the bar and talked with Curt Cleaveland, who was managing the bar for plaintiff. That night, Cleaveland closed the bar, telling employees it would remain closed until plaintiff returned from Hawaii. Plaintiff contends that Magnuson persuaded Cleaveland to close the bar by offering him more money — $400 a week instead of $300, along with a lump sum payment of $5,000. In his deposition, Stuart Magnuson, admitted that defendant paid Cleaveland $5,000 and $400 for one week. Magnuson denied, however, that Cleaveland was paid to close the bar. He said it was his father’s idea to pay Cleaveland $5,000, but he understood that it was to help out Cleaveland, who had loaned plaintiff approximately $6,000 and stood to lose this money. Magnuson said Cleaveland was paid $400 for one week to keep an eye on the bar after it was closed.

Cleaveland, in his deposition, denied that he closed the bar in return for money from Magnuson. He stated that he made the decision to close the bar when he learned from Magnuson that the dramshop insurance had expired. Tim Gill, plaintiff’s former attorney, however, testified in his deposition that Cleaveland told him he shut the bar down in exchange for the payment from defendant, but he would never testify to that in court.

We find the facts alleged raise a material question of fact as to whether defendant breached the contract by closing Schaider’s bar by hiring away Schaider’s manager, Cleaveland, on June 5, 1986. If, but for Magnuson’s payment to Cleaveland, the bar would have remained open, then Schaider may recover for breach of contract against Magnuson because Magnuson took control of the bar before Schaider was afforded his contractual right to cure defaults.

Magnuson also contends the trial court’s order was correct because the evidence shows that Schaider abandoned the leased premises. The crux of Magnuson’s argument is that Schaider failed to reopen the business after he returned from Hawaii on June 15, 1986, and that he surrendered the premises on July 1, 1986. Magnuson points to the following facts: Schaider let his dramshop insurance expire; Schaider did not attempt to pay the money owed; Schaider did not attempt to reopen the bar when he returned from Hawaii; Schaider sold some of his inventory when he returned from Hawaii; Schaider signed a consent form which allowed Stuart Magnuson to enter the premises to clean it and change the locks on July 1,1986.

Magnuson’s argument is not persuasive because it ignores the main theory upon which Schaider brought suit for breach of contract, that Magnuson closed the bar on June 6, 1986. The facts asserted by Magnuson clearly show that Schaider was having difficulties with the bar business, but these facts do not show that Schaider was responsible for closing his bar June 6, 1986. If Magnuson closed the bar on June 6, 1986, then Magnuson breached the contract on this date, and Schaider’s failure to reopen the bar or his failure to make the payments after this date are not relevant to this cause of action.

NO. 87 — L—225 - INDUSTRIES V. SCHAIDER

In this case, Industries sued Schaider for back rent owed on the lease, and for fraudulent misrepresentation. The court granted summary judgment to Industries on both counts, awarding Industries $9,200 for four months’ rent, April to July 1986, and $10,924.00 on count II.

Schaider admitted in his answer that he had not paid rent for three months. Schaider filed a motion to dismiss this count, however, alleging that the cause of action raised by him in No. 87 — L—210 required dismissal of this count. The trial judge denied this motion. On appeal, Schaider contends this was error. There is no merit to this contention. Section 2 — 619 provides for dismissal of a complaint where “there is another action pending between the same parties for the same cause” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(3)). Here, Schaider’s cause of action in No. 87 — L—210, that Industries breached the lease in June by taking control of the property without providing an opportunity to cure, is not the same cause alleged in Industries complaint, that Schaider failed to pay rent.

Next, Schaider contends the trial court erred in granting summary judgment on this count for Industries because his alleged cause of action in No. 87 — L—210 excused the obligation to pay rent. In No. 87 — L—210 Schaider alleged a breach by Industries on June 6, 1986. We agree that Schaider’s complaint raises a material question as to his liability for rent after June 6, 1986; however, we find no genuine issue of material fact concerning Schaider’s liability for rent owed before June 6, 1986. Since it is undisputed that Schaider owed rent for April and May 1986, we affirm the summary judgment for Industries for rent owed in April and May totaling $4,600 and remand for further proceedings concerning rent owed in June and July 1986.

Next, Schaider contends the trial court erred in granting summary judgment to Industries on count II of No. 87 — L—225. In this count, Industries alleged a cause of action against Schaider for fraudulent misrepresentation. In his defense to the summary judgment motion and on appeal Schaider contends the trial court erred because Industries failed to establish the material elements of fraudulent misrepresentation.

In International Meat Co. v. Bockos (1987), 157 Ill. App. 3d 810, 815, the court set out the elements for common-law fraud. Plaintiff must prove the following:

“(1) the defendant made a statement, (2) of a material nature, (3) which was untrue, and (4) which was known by defendant to be untrue, or was made in culpable ignorance of its truth or falsity; and (5) was made for the purpose of inducing reliance by plaintiff, (6) was actually relied upon by plaintiff, and (7) resulted in plaintiff’s injury.” (157 Ill. App. 3d at 815.)

Furthermore, a promise to perform a future act, even though made without a present intention to perform, is generally insufficient to constitute fraud. (Bockos, 157 Ill. App. 3d at 815; Roda v. Berko (1948), 401 Ill. 335, 340.) An exception to this rule occurs where the false promise to do something in the future is the scheme or device used to accomplish the fraud. Bockos, 157 Ill. App. 3d at 815; Berko, 401 Ill. at 340.

Industries alleged Schaider fraudulently represented that he was making improvements to the premises owned by Industries. In support of this allegation, Industries attached an estimate for bathroom improvements submitted by Telamon, Inc., which Schaider delivered to Industries. Telamon estimated the job would cost $10,924. Industries alleged Schaider fraudulently and with intent to deceive induced it to entrust Schaider with $10,924 to act as a fiduciary to transfer this amount to Telamon, Inc. A copy of a check made out to Keystone, Inc., for $10,924 was attached to the complaint. It is not disputed that this check was delivered to Schaider as president of Keystone, Inc. Industries alleged Schaider had no intent to transmit the funds to Telamon, Inc., and deposited the funds to his own account, never paying Telamon, Inc., or any other contractor. In support of its motion for summary judgment, Industries attached a copy of a petition for a lien made on the premises by Robert C. Letoumeau for work done on the bathrooms in the amount of $9,558. It also attached a copy of Schaider’s bank statement which indicated that the $10,924 was deposited in the Keystone, Inc., account. The statement indicates that several withdrawals were made from the $10,924 deposited. It is noted that these copies were not verified.

This evidence is not sufficient to grant summary judgment to Industries. Industries contends that the material untrue statement made by Schaider was that he was making improvements to the bathrooms. The evidence does not prove this to be an undisputed fact. To the contrary, the evidence as indicated by the petition for mechanic’s lien filed by Letoumeau shows that improvements to the bathroom were made. That the improvements were made by someone other than Telamon, Inc., does not prove that Schaider made a material untrue statement to Industries. Industries contends that the evidence shows that Schaider made a material untrue statement in that he promised to use the $10,924 to pay Telamon. While it is undisputed that defendant received the check for the purpose of applying it to pay for bathroom remodeling, it is not undisputed that Schaider induced Industries to give him this check knowing that he would not use the money for bathroom improvements or with culpable ignorance of this fact. None of the evidence submitted by Industries establishes this intent by Schaider. The fact that the bank statement shows that Schaider deposited the check into his corporate account and withdrew funds from the check to pay for bills unrelated to remodeling the bathroom does not prove that Schaider accepted the check knowing he would not use it to pay for the bathroom. The trial court erred in granting summary judgment to Industries on this count.

NO. 87 — L—192 - MAGNUSON V. SCHAIDER

In No. 87 — L—192, a confession on a $100,000 judgment note was entered against Schaider on April 3, 1987, for $164,171.67. The judgment sum was derived by awarding Magnuson $93,536.60 in principal, $43,273.21 in interest, and $27,361.80 in attorney fees. Schaider filed a motion to open up the judgment, alleging affirmative defenses. Schaider also filed a motion for involuntary dismissal, alleging grounds stated in a complaint Schaider filed against Magnuson for breach of contract. The court dismissed the affirmative defenses and granted summary judgment for Magnuson, confirming the confession judgment.

Schaider contends the trial court erred in dismissing his affirmative defenses to No. 87 — L—192 and granting summary judgment in favor of Industries. Schaider contends on appeal that there are questions of fact regarding his liability under the note and the amount of recovery under the note. First, Schaider contends that the issues raised by his suit in No. 87 — L—210 may prove that he is not liable on the note. Second, Schaider contends that the recovery of all stock and collateral by Magnuson precludes full payment of the amount owed on the promissory note. These contentions bring out a question of contract construction which Schaider touched on briefly and Magnuson failed to address entirely.

The stock purchase agreement provides that Schaider will pay $170,000 for all of the stock of The Mating Place, Inc., the bar being purchased. The agreement stated that the promissory note would be secured by a purchase money security interest covering all the assets of the bar. The stock purchase agreement, as already discussed, provided Schaider with a right to cure within 15 days after receiving notice of default. The installment judgment note signed by Schaider allowed the holder of the note to without notice declare the entire balance immediately due and payable upon default.

Schaider correctly argues, as already discussed, that the separate agreements in this case must be construed together as one agreement. (See Peters & Fulk Realtors, Inc. v. Shah (1986), 140 Ill. App. 3d 301, 305, quoting Tepfer v. Deerfield Savings & Loan Association (1983), 118 Ill. App. 3d 77, 80.) This rule is applied by statute to negotiable instruments. Section 3 — 119(1) of the Uniform Commercial Codes states in relevant part:

“As between the obligor and his immediate obligee or any transferee the terms of an instrument may be modified or affected by any other written agreement executed as a part of the same transaction ***.” Ill. Rev. Stat. 1987, ch. 26, par. 3— 119(1).

Thus, an agreement or condition inserted in one document is an effective part of the contract of the parties, although not found in the other document, provided there is no inconsistency. (Peters, 140 Ill. App. 3d at 306; Tepfer, 118 Ill. App. 3d at 81.) Schaider contends that Magnuson’s breach of the stock purchase agreement by failing to provide time to cure precludes Magnuson from recovering on the judgment note. The cure provision of the stock purchase agreement is inconsistent with the judgment note, which allows the holder to without notice declare the entire balance immediately due upon any default. It has been held that where a contemporaneous agreement is inconsistent with a note, the provisions in conflict with the note will not be construed as part of the note. (See 11 Am. Jur. 2d Bills and Notes §72, at 98 (1963), citing White v. Miller (1893), 52 Minn. 367, 54 N.W. 736; Misso v. National Bank of Commerce (1957), 231 Miss. 249, 95 So. 2d 124; Peavy-Moore Lumber Co. v. First National Bank (1939), 133 Tex. 467, 128 S.W.2d 1158; 125 A.L.R. 1185 (1940).) Thus, in this case, Schaider’s allegation that he is not liable under the note because of breach of the stock purchase agreement is not valid, since the note allows recovery of the full amount without providing notice or a right to cure.

Schaider’s second contention is that Magnuson was not entitled to the full amount owed on the note because Magnuson retained the collateral on the note, and section 9 — 504 of the Commercial Code requires the judgment amount be reduced. (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 504(1)(b).) On appeal, Magnuson contends that this contention is waived because Schaider failed to raise it at trial. The record, however, shows that this was raised by Schaider. Schaider alleged in his affirmative defense and in defense of the summary judgment motion that Magnuson recovered all the assets of the business, which was the full consideration for the note. Schaider did not specifically rely on the Uniform Commercial Code in his arguments at the trial level, but his assertions sufficiently raised the issue below.

The question raised by Schaider again requires construction of the stock purchase agreement and the judgment note. The judgment note does not mention anything about collateral; however, the stock purchase agreement requires Schaider to furnish Magnuson with a security agreement and a purchase money security interest for all the assets of the company as collateral for the note. Furthermore, the stock purchase agreement provides that the collateral will be released upon payment of the note. It states:

“Upon the payment in full of the Promissory Note referred to in Paragraph 3, the seller shall execute and deliver to the Buyers, a release of collateral and termination statement in the form required by the Secretary of State of the State of Illinois *** ff

In this case the note and the stock purchase agreement may be read together consistently. The stock purchase agreement makes clear that the assets of the business were to serve as collateral for the note. It also makes clear that upon payment of the note in full, the seller must release its right to the collateral. Since the note does not mention anything about collateral, the two documents are not directly conflicting. It is clear that, where the seller here obtained a judgment for the total amount due on the note, he cannot also retain the collateral. The Uniform Commercial Code provides that a secured party may either sell, or otherwise dispose of the collateral and apply the proceeds to his reasonable expenses for disposing of the collateral and then to the satisfaction of indebtedness (Ill. Rev. Stat. 1987, ch. 26, pars. 9 — 504(1)(a), (1)(b)), or the seller may retain the collateral in satisfaction of the obligation (Ill. Rev. Stat. 1987, ch. 26, par. 9 — 505(2)). The evidence shows that Magnuson retained at least some of the assets of the business purchased by Schaider that were to stand as collateral. Stuart Magnuson stated that Industries repossessed the premises on July 1, 1986, after Schaider signed the consent agreement. He also stated that he is the sole shareholder of a company now operating a bar on the premises. It is not clear how much of the collateral Magnuson repossessed or what he did with it after repossession. These are facts that should have been brought out at the trial level.

A judgment by confession should be opened where a legal defense has been raised that existed before the judgment was entered. (Interstate Bank v. Sluis (1979), 79 Ill. App. 3d 1039, 1043.) The bar premises were repossessed by Magnuson on July 1, 1986. The judgment of confession was entered April 3, 1987. Thus, the issue of repossession of collateral arose prior to the judgment of confession April 3, 1987. The issue of satisfaction by retention of the collateral was a legitimate defense that should have been entertained at trial. The trial court erred in dismissing this affirmative defense and granting Magnuson summary judgment for the total amount due on the note.

Lastly, Schaider contends the $27,361.80 attorney fee awarded to Magnuson on the confession of judgment was error because it was determined by the circuit clerk based on a fee schedule. Magnuson admits this fact on appeal. In Larkin Bank v. Ishak (1976), 43 Ill. App. 3d 918, 921, this court held that attorney fees may not be based on a fee schedule set by the county bar association. Rather, attorney fees “should be based upon the circumstances of the case, including the time expended, the complexity of the issues presented, the work involved and the expertise of the lawyer.” (Larkin Bank, 43 Ill. App. 3d at 921.) The record here is devoid of proof of services rendered by Magnuson’s attorney. There is no evidence of the hours spent on the case, the hourly rate charged, or any other circumstances involved with services rendered. The award of attorney fees is reversed, and the cause is remanded for proof of the services rendered.

In summary we make the following rulings:

(1) No. 87 — L—210 — Schaider v. Magnuson et al.

(a) the dismissal of counts I, II, IV, and V is reversed and the cause remanded because the defendant’s motion failed to affirmatively defeat plaintiff’s claim;

(b) the summary judgment entered for defendant on count III is reversed and the cause remanded because there exists a genuine question of material fact as to whether defendant closed plaintiff’s bar on June 6, 1986, and took possession of the premises and personal property before affording plaintiff his contractual right to cure defaults.

(2) No. 87 — L—225 — Industries v. Schaider

(a) the order denying Schaider’s motion to dismiss count I of Industries’ complaint for rent owed by Schaider is affirmed;

(b) the summary judgment entered for Industries for four months’ rent is affirmed in part and remanded in part. The order is affirmed for two months’ rent, April and May, totaling $4,600, but remanded for further proceedings concerning rent owed in June and July;

(c) the decision granting Magnuson summary judgment for $10,924 for fraudulent misrepresentation is reversed and the cause remanded.

(3) No. 87 — L—192 — Magnuson v. Schaider

(a) the order dismissing Schaider’s defense to the confession judgment is reversed and the cause remanded since retention of the collateral barred full recovery on the note;

(b) the summary judgment for the total amount due on the note is reversed and the cause remanded to determine the collateral retained by Magnuson and to determine the effect of this retention of collateral on the amount owed on the note pursuant to either sections 9— 504(l)(a), (1)(b)) or section 9 — 505(2) of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, pars. 9-504(1)(a), (1)(b), 9-505(2));

(c) the award of attorney fees based on a fee schedule is reversed, and the cause is remanded for a determination of the work involved in securing the confession of the installment judgment note.

Affirmed in part; reversed in part and remanded.

NASH and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    CHRISTINA CHASE BOWERS, a Minor by Connie Bowers, her Mother and Next Friend, et al., Plaintiffs-Appellants, v. DU PAGE COUNTY REGIONAL BOARD OF SCHOOL TRUSTEES DISTRICT NO. 4 et al., Defendants-Appellees.
    Second District
    No. 2—88—0627
    Opinion filed May 11, 1989.
    Rehearing denied June 22, 1989.

      Andrew D. Werth, of Susan E. Loggans & Associates, of Chicago, for appellants.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner and Anna B. Harkins, Assistant State’s Attorneys, of counsel), for appellee Du Page County Educational Services Region.
    Nicholas E. Sakellariou, of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago, for appellees Du Page County Regional Board of School Trustees District No. 4 and Addison Board of Education District No. 4.
   JUSTICE INGLIS

delivered the opinion of the court:

This action was brought by Connie Bowers on behalf of herself and Christina Bowers, a minor, to recover damages from defendants, Du Page County Regional Board of School Trustees District No. 4 (Board of Trustees), Addison Board of Education District No. 4 (Board of Education), and Du Page County Educational Services Region (Educational Services Region), for the alleged negligence and wilful and wanton misconduct of defendants in supervising Christina and in providing equipment. Defendants filed motions to dismiss based on sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 615, 2 — 619). The trial court granted all of the motions of defendants and dismissed the first amended complaint with prejudice.

On appeal, plaintiffs contend that the trial court abused its discretion in dismissing the complaint pursuant to section 2 — 619 when defendants’ motions and supporting briefs were brought pursuant to section 2 — 615; the complaint asserted a cause of action for negligence in the supplying of equipment for which defendants can be held liable; the complaint stated a cause of action for wilful and wanton conduct; and the trial court erred in granting defendants’ motions with prejudice. Additionally, the Educational Services Region contends that it is not a legal entity capable of being sued.

The first amended complaint consists of four counts. Count I of the first amended complaint alleges that Christina was injured when she slipped and fell from a rope ladder she was required to climb (by an employee of defendants) during gym class. The complaint also alleges that defendants owned, maintained, and controlled the rope ladder and the gymnasium in which the fall occurred. The amended complaint further alleges:

“6. On November 19, 1986, the defendants, DU PAGE SCHOOL DISTRICT, was negligent in one or more of the following respects:
a. Failed to provide adequate and proper supervision during the physical education class;
b. Failed to provide safe and adequate matting under ‘rope ladders’;
c. Failed to provide adequate equipment for children to use during the physical education class;
d. Failed to instruct students in the proper manner to perform required activities such as ‘rope ladder’ climbing;
e. Failed to ascertain whether or not children were able to perform the inherently dangerous task of ‘rope ladder’ climbing;
f. Failed to insure that other students did not hinder or endanger the plaintiff while she was performing the required task.”

Count II of the first amended complaint has been brought by the mother, Connie Bowers, in her own right. Count II incorporates by reference paragraphs 1 through 9 of count I alleging negligence. Count II further alleges that Connie has become liable under section 15 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1985, ch. 40, par. 1015) for expenses incurred as a result of Christina’s injuries and that Connie has suffered among other losses the loss of society of Christina.

Count III of the first amended complaint has been brought on behalf of Christina and alleges, in pertinent part:

“6. On and before November 19, 1986, defendants, DU PAGE SCHOOL DISTRICT, knew or should have known that the use of a ‘rope ladder’ without the proper supervision and equipment would result in the injury to the plaintiff.
7. On November 19, 1986, the defendants, DU PAGE SCHOOL DISTRICT, with a conscious indifference and utter disregard for the safety of others was willful and wanton in one or more of the following respects:
a. Knowingly and intentionally or with reckless disregard failed to provided [sic] inadequate and improper [sic] supervision during the physical education class;
b. Knowingly and intentionally or with reckless disregard provided unsafe and inadequate matting under ‘rope ladders’;
c. Knowingly and intentionally or with reckless disregard provided inadequate equipment for children to use during the physical education class;
d. Knowingly and intentionally or with reckless disregard failed to instruct students in the proper manner to perform required activities such as ‘rope ladder’ climbing;
e. Knowingly and intentionally or with reckless disregard failed to ascertain whether or not children were able to perform the inherently dangerous task of ‘rope ladder’ climbing;
f. Knowingly and intentionally or with reckless disregard failed to insure that other students did not hinder or endanger the plaintiff while she was performing the required task;
8. As a proximate result of one or more of the aforesaid willful and wanton acts or omissions of the defendants, DU PAGE SCHOOL DISTRICT, the plaintiff, CHRISTINA CHASE BOWERS, has sustained serious and permanent injuries of a personal and pecuniary nature.”

Count IV of the first amended complaint has been brought by the mother, Connie Bowers, in her own right under the heading of wilful and wanton. However, count IV incorporates by reference “paragraphs 1 thru 10 of Count 7” which were based in negligence. Like count II, count IV alleges that Connie has become liable under section 15 of “An Act to revise the law in relation to husband and wife” (Ill. Rev. Stat. 1985, ch. 40, par. 1015) for expenses incurred as a result of Christina’s injuries and that Connie has suffered, among other losses, the loss of society of Christina.

The Board of Education brought a motion to dismiss the first amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619), alleging that counts I and II should be dismissed because the Board was immune from liability for negligence under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.) and that counts III and IV should be dismissed because they were devoid of facts necessary to allege wilful and wanton conduct. The Board of Education also brought a motion to dismiss the first amended complaint pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615), alleging, among other things, that count I is insufficient in law because under section 24 — 24 of the School Code (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 24), the Board is only liable for improper supervision where its conduct is wilful and wanton. The section 2 — 615 motion also alleged that counts II and IV should be dismissed because they improperly joined causes of action based on “An Act to revise the law in relation to husband, and wife” (Ill. Rev. Stat. 1985, ch. 40, par. 1015) and loss of society, they failed to allege the nature of Christina’s injury and how that injury resulted in loss of society to Connie Bowers, and they did not allege that Connie Bowers received demand for payment for medical expenses incurred by Christina as a result of her injury. The Board further alleged in its section 2 — 615 motion that counts III and IV of the first amended complaint did not allege sufficient facts to state a claim for wilful and wanton misconduct.

The Board of Trustees brought a motion to dismiss the first amended complaint pursuant to section 2 — 619, alleging:

“[T]he Regional Board of School Trustees of Du Page County exerts no control over the property of Addison School District No. 4. Furthermore, the Regional Board of School Trustees of Du Page County had no input to and exercised no control or authority over the supervision or instruction of students, selection and provision of equipment, or conditions of the premises as complained of by Plaintiffs.”

Attached was an affidavit of Joseph Briski, assistant superintendent for business for the Board of Education of Addison School District No. 4, which supported the motion. The section 2 — 619 motion further adopted the section 2 — 619 motion of the Board of Education. The Board of Trustees also brought a motion to dismiss the first amended complaint pursuant to section 2 — 615, adopting the section 2 — 615 motion of the Board of Education.

The Educational Services Region brought a motion to dismiss the first amended complaint pursuant to section 2 — 615, alleging that subsections a, d, e, and f of paragraph 6 of count I should be dismissed because under section 24 — 24 of the School Code it could not be held liable for negligence. The Educational Services Region further contended that subsections b and c of paragraph 6 of count I should be dismissed because they were conclusory and vague. The Educational Services Region also alleged that count II should be dismissed because it improperly joined separate causes of action. The Educational Services Region alleged that counts III and IV should be dismissed because they did not state sufficient facts to allege wilful and wanton misconduct.

The trial court dismissed all counts against all defendants, stating:

“1. That the 2 — 615 motion to dismiss of the Defendant the Du Page County Educational Services Region is hereby granted.
2. That the 2 — 615 and 2 — 619 motions to dismiss of the Defendants, the Du Page Regional Board of School Trustees and the Addison Board of Education, District No. 4 are hereby granted.
3. That this matter is dismissed with prejudice.”

Initially we address the brief filed on behalf of the “Du Page County Educational Service Region” by the State’s Attorney for Du Page County, which alleges that the Educational Service Region is not an entity capable of being sued. In response, plaintiffs contend that this issue has been waived because it was not raised in the trial court.

Where a suit is brought against an entity which has no legal existence, the proceedings are void ab initio. (Lewis v. West Side Trust & Savings Bank (1941), 377 Ill. 384, 385; Tyler v. J.C. Penney Co. (1986), 145 Ill. App. 3d 967, 972.) Thus, the legal existence of the entity being sued may be brought into question at any time. (Lewis, 377 Ill. at 385; Tyler, 145 Ill. App. 3d at 972.) We therefore address the question of whether the “Du Page County Educational Service Region” is a legal entity capable of being sued.

Plaintiffs’ first amended complaint names as defendant “DU PAGE COUNTY SERVICES REGION, a local governmental entity.” Sections 3A — 1 through 3A — 15 of the School Code (Ill. Rev. Stat. 1985, ch. 122, pars. 3A — 1 through 3A — 15) set up a system of educational service regions. The School Code does not, however, provide that educational service regions have any duties nor does it provide that they are corporate entities that have the power to sue and be sued. (Compare Ill. Rev. Stat. 1985, ch. 122, pars. 3A — 1 through SA-IS, with Ill. Rev. Stat. 1985, ch. 122, par. 5 — 2 (board of trustees has the power to sue and be sued).) Rather, the School Code provides for a regional superintendent of schools (see Ill. Rev. Stat. 1985, ch. 122, par. 3A — 2), who has certain duties (Ill. Rev. Stat. 1985, ch. 122, par. 3 — 14). Moreover, section 3A — 15 provides that the State’s Attorney of the county where the regional superintendent’s office is located shall act as the legal representative of the regional superintendent. (Ill. Rev. Stat. 1985, ch. 122, par. 3A — 15.) The School Code does not provide for similar representation of the educational service region. From all of this, we conclude that there is no governmental entity known as the “Du Page County Educational Service Region” which is capable of being sued. While it may be possible to sue the regional superintendent of schools in his or her official capacity, the superintendent has not been sued, and we do not interpret plaintiffs’ first amended complaint as naming the superintendent.

Plaintiffs contend that defendants improperly attacked the sufficiency of the pleadings through a section 2 — 619 rather than a section 2 — 615 motion. We disagree. The Board of Trustees and the Board of Education brought motions to dismiss under both section 2— 615 and section 2 — 619. Further, the motions presented the arguments and law upon which they were based. Plaintiffs therefore were not surprised by the substance of the motions. We therefore conclude that plaintiffs were not prejudiced by the way in which the motions were presented. See Cali v. DeMattei (1984), 121 Ill. App. 3d 623, 628.

Before moving on to address plaintiffs’ remaining contentions, we note that the section 2 — 615 and section 2 — 619 motions raised issues which are not addressed by plaintiffs on appeal. Since the trial court granted the motions without stating its reasoning, we assume that the motions were granted on the basis of all the issues that were raised. Thus, we find that the trial court granted the section 2 — 619 motion of the Board of Trustees on the basis that it did not control the property or the supplying of equipment. On appeal, plaintiffs do not contend that the Board of Trustees was in control of the property or was otherwise responsible for supplying equipment. Consequently, we affirm the dismissal of all counts as they relate to the Regional Board of School Trustees of Du Page County. We also note that the section 2 — 615 motion of the Board of Education alleged that counts II and IV of the first amended complaint had improperly joined causes of action and did not adequately state facts to allege an action for loss of society. Thus, we find that the trial court’s order also dismissed counts II and IV against the Board of Education on these grounds. Since plaintiffs do not contest these grounds on appeal, we find that the dismissal of counts II and IV should be affirmed. This leaves us to consider counts I and III as they relate to the Board of Education.

The propriety of dismissing count I hinges upon the immunity available to the Board of Education under the School Code and the Tort Immunity Act.

Plaintiffs contend that count I was improperly dismissed as it relates to the negligent providing of equipment. Plaintiffs argue that under Gerrity v. Beatty (1978), 71 Ill. 2d 47, and Lynch v. Board of Education (1980), 82 Ill. 2d 415, liability may be imposed against school districts for negligently furnishing equipment which is inadequate, ill-fitting, or defective. In response, the Board of Education contends that the portions of count I which allege negligence in providing equipment are actually acts which relate to supervision and were therefore properly dismissed under section 2 — 615, because under the School Code the Board cannot be held liable for negligent supervision. The Board also contends that the dismissals were proper under section 2 — 619 because the Board has immunity under the Tort Immunity Act. We first address the propriety of the dismissal of count I under section 2 — 615.

Under section 24 — 24 of the School Code, teachers stand in the relation of parents and guardians to pupils. (Ill. Rev. Stat. 1985, ch. 122, par. 24 — 24; Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 170.) Teachers are therefore granted immunity from suits for negligence arising out of matters connected to school. (See 63 Ill. 2d at 173.) However, in Gerrity, the court found that a school board was subject to liability for negligence arising out of the furnishing of equipment for students. (Gerrity, 71 Ill. 2d at 53.) In so doing, the court noted that Kobylanski and other cases which held teachers and school districts immune from suits for ordinary negligence were each concerned with a direct teacher-student relationship involving the exercise of a teacher’s personal supervision over the conduct or physical movement of a student. (71 Ill. 2d at 51.) The complaint in Gerrity alleged that the school district carelessly and negligently:

‘(a) Permitted and allowed the plaintiff to wear an ill fitting and inadequate football helmet;
(b) Refused to furnish adequate and proper football equipment upon the plaintiffs [sic] request;
(c) Furnished and provided the plaintiff with an ill fitting and inadequate football helmet when it knew or in the exercise of ordinary care should have known said helmet was liable and likely to cause plaintiff injury.’ ” (71 Ill. 2d at 50.)

In Thomas v. Chicago Board of Education (1979), 77 Ill. 2d 165, 171, the court held that the duty of reasonable care placed upon school districts in the providing of equipment did not extend to individual teachers. The court noted that the school district has the authority to purchase and furnish equipment, which authority was not shared with teachers and coaches. (77 Ill. 2d at 171.) Instead, teachers and coaches have the distinct competence and authority to supervise the students and their use of the equipment. 77 Ill. 2d at 171.

We agree that, in the instant case, paragraphs 6a, 6d, 6e, and 6f alleged conduct which was supervisory in nature and therefore not sufficient to allege liability for negligence. (See Kobylanski, 63 Ill. 2d at 172.) However, we find that paragraphs 6b and 6c sufficiently allege the negligent supplying of equipment by the Board of Education to be proper under Gerrity. (See Gerrity, 71 Ill. 2d at 50-53.) The Board of Education, however, argues that supplying adequate matting under the rope ladder is a supervisory function of the classroom teacher and not an equipment-furnishing function of the Board. We are of the opinion that full development of the facts might find it to be either. If the teacher in charge of Christina’s class set up inadequate mats under the rope ladder, even though adequate mats were made available by the Board, the cause of Christina’s injury would be due to the supervisory function of the teacher. (See Braun v. Board of Education (1986), 151 Ill. App. 3d 787, 792 (school board’s failure to furnish equipment could not be proximate cause where the equipment was furnished and available for use).) As such, negligent conduct would not be sufficient to impose liability. (See Thomas, 77 Ill. 2d at 171.) However, if the Board of Education failed to furnish adequate mats to be used with the rope ladder, the cause of plaintiff’s injury would be due to the equipment-furnishing function of the Board, and liability could be imposed if such conduct were negligent. Consequently, we find that, under Gerrity, the Board of Education cannot claim immunity from count I under the School Code as that count relates to the supplying of equipment.

Having determined that the allegations of negligence regarding the provision of equipment were not subject to immunity under the School Code, we now move on to determine whether these same allegations are subject to immunity under the Tort Immunity Act.

The Board of Education contends that, for purposes of its section 2 — 619 motion, the duty to provide equipment is not at issue. The Board contends that the issue is the application of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 1 — 101 et seq.). The Board of Education argues that the amount and type of equipment to be used is a determination of policy and an exercise of discretion for which no liability can attach under section 2 — 201 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 2 — 201). The Board’s contention is based on the premise that it can only act through its employees and that under section 2 — 109 (Ill. Rev. Stat. 1985, ch. 85, par. 2 — 109) it cannot be held liable unless there is liability on the part of the Board members or the Board’s employees.

Gerrity did not address whether a school board could claim immunity under the Tort Immunity Act for liability arising out of the negligent provision of equipment and thus is not determinative of the issue now before us. However, the decision reached in Gerrity may be considered controlling if it is determined that the School Code and the Tort Immunity Act are to be read in pari materia.

In Kobylanski, the court noted that immunity under the School Code did not derive from immunity in the Tort Immunity Act (Kobylanski, 63 Ill. 2d at 174), thus indicating that the two statutes are to be interpreted apart from one another. That the two statutes should be interpreted independently of one another was also recognized in Keller v. Board of Education (1978), 68 Ill. App. 3d 7. In Keller, the court noted that Gerrity did not consider the Tort Immunity Act and further found that the negligence alleged fell within the scope of sections 3 — 106 and 3 — 108 of the Tort Immunity Act (Ill. Rev. Stat. 1977, ch. 85, pars. 3-106, 3-108). (Keller, 68 Ill. App. 3d at 9.) Similarly, the court in Jackson v. Board of Education (1982), 109 Ill. App. 3d 716, 718, recognized that Gerrity had not addressed the Tort Immunity Act and found that the defendant school board could claim immunity under section 3 — 106 of the Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 3 — 106). In accordance with the above authorities, it is our opinion that the School Code and the Tort Immunity Act are to be interpreted independently of one another. Yet, while we interpret the statutes independently of one another, we are cognizant of the fact that the policy considerations stated in Gerrity are as applicable to the Tort Immunity Act as they were to the School Code. In considering public policy in Gerrity, the court stated:

“[PJublic policy considerations argue rather strongly against any interpretation which would relax a school district’s obligation to insure that equipment provided for students in connection with activities of this type is fit for the purpose.” (Gerrity, 71 Ill. 2d at 52.)

The court further noted that to hold school districts to the duty of ordinary care would not be unreasonably burdensome nor would it be inconsistent with the intended purposes of the School Code. (71 Ill. 2d at 52.) It is also evident that to hold that immunity is available under the Tort Immunity Act would effectively immunize school boards from the liability found under Gerrity. (Note, section 9 — 103 of the Tort Immunity Act has been amended to allow insurers to assert any immunities to which the insured public entity is entitled. (Ill. Rev. Stat. 1987, ch. 85, par. 9 — 103(c).) With these considerations in mind, we move on to consider section 2 — 109 of the Tort Immunity Act.

Section 2 — 109 of the Tort Immunity Act provides:

“A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” Ill. Rev. Stat. 1985, ch. 85, par. 2 — 109.

The Board of Education’s contention that it can only operate through its employees and thus can be held liable only if one of its employees can be held liable finds support in Melbourne Corp. v. City of Chicago (1979), 76 Ill. App. 3d 595. In Melbourne, the plaintiff argued that section 2 — 109 of the Tort Immunity Act relates only to cases of vicarious liability on the part of the defendant city for acts of its employees based on the doctrine of respondeat superior. (76 Ill. App. at 604.) The plaintiff further contended that liability of the city was direct and primary. (76 Ill. App. 3d at 604.) The court disagreed. The court held that the city was a municipal corporation that could only function through the actions of its agents and officials. (76 Ill. App. 3d at 604; see also Classroom Teacher’s Association v. Board of Education (1973), 15 Ill. App. 3d 224, 229 (as a corporate body the board necessarily acts through its agents); Baum, Tort Liability of Local Governments & Their Employees: An Introduction to the Illinois Immunity Act, 1966 U. Ill. L.F. 981, 988 (through section 2 — 109, “the liability of local governments is made to depend upon and is limited by the liability of its employees”).) The court further stated that the plaintiff “may not evade the effects of the Act by suing the city itself, but not the Board officials whose actions or omissions constitute the alleged cause of action.” (Melbourne Corp., 76 Ill. App. 3d at 604.) The court went on to hold that through section 2 — 109 the city was derivatively protected under section 2 — 201 because the alleged wrongful act was discretionary. 76 Ill. App. 3d at 604.

We follow Melbourne Corp. and conclude that in this case the Board of Education may assert immunity under sections 2 — 109 and 2 — 201 of the Tort Immunity Act even though no specific employee of the Board has-been named as causing the alleged wrongful act. We therefore proceed to consider whether the furnishing of equipment is a discretionary action under section 2 — 201 of the Tort Immunity Act.

Section 2 — 201 of the Tort Immunity Act provides:

“Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” Ill. Rev. Stat. 1985, ch. 85, par. 2 — 201.

We initially note that in Thomas v. Chicago Board of Educa tion (1978), 60 Ill. App. 3d 729, 734, rev’d on other grounds (1979), 77 Ill. 2d 165, it was held that the furnishing of equipment was separate and apart from the exercise of discretionary authority. Thus, the court stated:

“Just as the School Code does not require that teachers and school districts be immunized from liability for negligence in this respect, neither does the Tort Immunity Act mandate that we absolve defendants, as a matter of law, from liability for the negligent furnishing of defective or obsolete equipment.” 60 Ill. App. 3d at 734.

We disagree with the result reached in Thomas. Discretionary acts are those which are “unique to the particular public office and not merely ministerial in nature.” (People v. Patrick J. Gorman Consultants, Inc. (1982), 111 Ill. App. 3d 729, 731.) Ministerial acts, on the other hand, are those which are performed on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority. Larson v. Darnell (1983), 113 Ill. App. 3d 975, 977.

Section 10 — 20.8 of the School Code provides that the Board of Education has the duty to direct what branches of study shall be taught and what textbooks and what apparatus shall be used. (Ill. Rev. Stat. 1985, ch. 122, par. 10 — 20.8.) While the School Code provides that it is the duty of the Board to direct what apparatus is to be used, it does not direct that the Board is to use or supply particular equipment. We are therefore of the opinion that the provision of equipment is a discretionary act under section 2 — 201 of the Tort Immunity Act. In accordance with the foregoing analysis, we find that immunity is available to the Board of Education under the Tort Immunity Act. Consequently, we find that count I was properly dismissed under the section 2 — 619 motion of the Board of Education of Addison School District No. 4.

Plaintiff also contends that count III was improperly dismissed because it alleged wilful and wanton conduct. In response, the Board of Education contends that count III was properly dismissed because it did not allege facts which demonstrate wilful and wanton conduct.

In order to be wilful and wanton, an act must be done intentionally or committed under circumstances exhibiting a reckless disregard for the safety of others. (O’Brien v. Township High School District 21A (1980), 83 Ill. 2d 462, 469.) In Tijerina v. Evans (1986), 150 Ill. App. 3d 288, 291, this court set out the requirements for pleading wilful and wanton misconduct:

“To sufficiently plead wilful and wanton misconduct, a plaintiff must allege facts demonstrating the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. [Citation.] Fact pleading, as opposed to notice pleading, is required in Illinois; accordingly, a plaintiff must allege facts that are sufficient to bring his claim within the scope of the legally recognized cause of action. [Citation.] Only well-pleaded facts are admitted by a motion to dismiss, and the requirement that a complaint set forth facts necessary for recovery under the theory asserted is not satisfied, in the absence of the necessary allegations, by the general policy favoring the liberal construction of pleadings.”

The court went on to note that a court must focus on the individual facts alleged in each case to determine whether they are sufficient to support a cause of action based on wilful and wanton misconduct. 150 Ill. App. 3d at 292.

The same actions may be done negligently or with wilful and wanton disregard. Thus, allegations for wilful and wanton misconduct will not fail simply because they mirror allegations for negligence and merely change the state of mind. See O’Brien, 83 Ill. 2d at 468-69.

In the instant case, it was alleged that the Board of Education maintained a rope ladder which was 20 to 25 feet high; Christina was required to climb the rope ladder for gym class by an employee of the Board; and the Board knowingly and intentionally or with reckless disregard provided inadequate supervision, provided unsafe and inadequate matting under the rope ladder, provided inadequate equipment, failed to instruct students in the proper manner to perform required tasks such as rope-ladder climbing, failed to ascertain whether Christina was able to perform the task of rope-ladder climbing, and failed to ensure other students did not hinder or endanger Christina while she was climbing the rope ladder. Thus, the first amended complaint alleged that the actions which caused Christina’s injuries were done intentionally or with reckless disregard. We find such allegations to be sufficient to state a claim for wilful and wanton misconduct. Accordingly, we find that count III should not have been dismissed against the Addison Board of Education District No. 4.

We next address plaintiffs’ contention that the trial court abused its discretion in dismissing the first amended complaint with prejudice. Having determined that count III was improperly dismissed against the Board of Education and that the “Du Page County Educational Service Region” is not a proper legal entity to be sued, we find that we need only determine whether dismissing all counts against the Board of Trustees with prejudice was an abuse of discretion.

Leave to amend should be granted unless it is apparent that even after amendment no cause of action can be stated. (Davies v. Martel Laboratory Services, Inc. (1987), 157 Ill. App. 3d 686, 688.) However, the decision of the trial court will only be reversed if there has been an abuse of discretion. Plocar v. Dunkin’ Donuts of America (1981), 103 Ill. App. 3d 740, 749.

Since one of the reasons that the trial court granted the dismissal was that the Board of Trustees had no control over the property and was not involved with the supplying of equipment, we find that dismissal with prejudice as to the Board of Trustees was not an abuse of discretion, as no amount of amending could change this fact.

In accordance with the foregoing analysis, we affirm the dismissal of counts I through IV of the first amended complaint against the “Du Page County Educational Service Region.” We also affirm the dismissal of counts I through IV against the Du Page County Regional Board of School Trustees District No. 4. Finally, we affirm the dismissal of counts I, II, and IV against the Addison Board of Education District No. 4 but reverse the dismissal of count III against the Addison Board of Education District No. 4.

Affirmed in part, reversed in part, and remanded.

NASH and REINHARD, JJ., concur.


author: JUSTICE REINHARD

text:
      In re J.J., a Minor (The People of the State of Illinois, Petitioner-Appellant, v. J.J., Respondent-Appellee).
    Second District
    No. 2—88—0246
    Opinion filed May 15, 1989.

      Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Colleen Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Respondent, J.J., was charged in a petition for adjudication as a delinquent minor filed in the circuit court of Kane County with the offenses of unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 561/2, par. 1402(a)(2)) and unlawful use of weapons (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1(a)(4)). Following the granting of respondent’s motion to quash arrest and suppress evidence seized during a pat-down search, the State appeals pursuant to Supreme Court Rules 604(a)(1) and 660(a) (107 Ill. 2d Rules 604(a)(1), 660(a)).

The sole issue raised on appeal is whether the granting of respondent’s motion to quash arrest and suppress evidence was manifestly erroneous because the stop of respondent was valid under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

While the motion to quash arrest and suppress evidence alleged generally that respondent’s arrest was illegal, the focus of the arguments before the trial court and in this court is that the initial stop of respondent was invalid.

At the suppression hearing, respondent placed in evidence an audio tape of a telephone call made to the Elgin police department at approximately 12:15 a.m. on October 18, 1987. The audio tape reveals that a security guard at the McDonald’s restaurant on Summit Street in Elgin reported that there was a man with a gun in the restaurant. The guard had not seen the gun himself but had been told about it by a customer. He described the subject with the gun as a black male, approximately 25 years old, wearing black pants, a blue and white jacket, and white tennis shoes. The subject exited the restaurant and was reported to be walking southbound on Gifford Street. The dispatcher radioed the information to squad cars in the area.

Officer Robert Christ of the Elgin police department testified at respondent’s detention hearing, and his testimony was offered into evidence at the suppression hearing. According to Christ, when he received the radio dispatch concerning a man with a gun, he was only three blocks from the McDonald’s restaurant. He proceeded to the restaurant and, as he approached, he saw respondent walking nearby and crossing the street. Respondent matched the description the officer had received over the radio. Officer Christ pulled up in front of respondent, exited the squad car, and indicated to respondent to come over to the squad car. Christ had respondent put his hands on the trunk of the squad car and patted him down as a gun had been mentioned. He felt a gun in respondent’s jacket pocket. After recovering the gun, a .38 caliber Colt Cobra handgun, he and another officer continued the search and discovered ammunition in respondent’s pants pocket and a small bag with packets of white powder in another jacket pocket. The powder tested positive for cocaine.

Respondent testified that on October 18, 1987, at approximately midnight, he had been at McDonald’s. As he walked away from the restaurant, he was stopped by the police. He was told to put his hands up, and he was searched.

In granting the suppression order, the trial court, relying on the holding in People v. Moraca (1984), 124 Ill. App. 3d 561, 464 N.E.2d 312, found that an uncorroborated tip was insufficient to justify an investigatory stop.

The State contends that Officer Christ had sufficient articulable facts which justified the initiation of a temporary stop for investigatory purposes. Respondent argues that the stop, based solely upon information from an anonymous person that a certain described person was carrying a gun, was not justified.

On a motion to suppress evidence, the burden of proof is on the defendant to establish that the search and seizure were unreasonable. (People v. Neal (1985), 109 Ill. 2d 216, 218, 486 N.E.2d 898, 899.) A reviewing court will not reverse the trial court’s finding on a motion to suppress evidence unless the finding is manifestly erroneous. Neal, 109 Ill. 2d at 218, 486 N.E.2d at 899.

In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, the Supreme Court recognized a limited exception to the probable cause requirement which allows a police officer, under appropriate circumstances and in an appropriate manner, to briefly detain a person for investigatory purposes and, if necessary for safety, to conduct a limited protective search of that person for concealed weapons. Specific and articulable facts, and not a mere hunch, must exist to justify a Terry stop and a frisk for a weapon. (Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883.) These principles have been codified in our Code of Criminal Procedure of 1963. Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14; see People v. Long (1983), 99 Ill. 2d 219, 228, 457 N.E.2d 1252.

In Adams v. Williams (1972), 407 U.S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921, the Supreme Court addressed the propriety of a police officer’s reliance on an informant’s tip in conducting a Terry stop. In Adams, the police officer was patrolling alone early in the morning in a high-crime area when a person known to the officer approached his squad car and informed him that an individual seated in a nearby vehicle was carrying narcotics and had a gun in his waistband. (Adams, 407 U.S. at 144-45, 32 L. Ed. 2d at 616, 92 S. Ct. at 1922.) The officer, after radioing for assistance, approached the vehicle, tapped on the window, and asked the occupant to open the door. When the occupant rolled down the window instead, the officer reached into the vehicle and removed a fully loaded revolver from the occupant’s waistband. Adams, 407 U.S. at 145, 32 L. Ed. 2d at 616, 92 S. Ct. at 1922- 23.

The majority held that the officer acted justifiably in responding to the informant’s tip. (Adams, 407 U.S. at 146, 32 L. Ed. 2d at 617, 92 S. Ct. at 1923.) The Court further held that because the officer knew the informant and had received information from him previously, because the informant came forward personally, and because the information was immediately verifiable at the scene, the information carried enough indicia of reliability to justify the officer’s stop of the vehicle’s occupant even though the unverified tip may have been insufficient to establish probable cause for an arrest or a search warrant. Adams, 407 U.S. at 146-47, 32 L. Ed. 2d at 617, 92 S. Ct. at 1923- 24.

Moreover, the Court rejected the argument that reasonable cause for a stop and frisk can only be based on an officer’s personal observation rather than on information supplied by another person. (Adams, 407 U.S. at 147, 32 L. Ed. 2d at 617, 92 S. Ct. at 1924.) The majority recognized that informants’ tips may vary greatly in their value and reliability and that one simple rule will not cover every situation. Where some tips, completely lacking in indicia of reliability, would warrant either no police response or require further investigation before a stop would be justified, other situations, such as when a victim of a crime seeks immediate police aid and describes his assailant or when a credible informant warns of a specific impending crime, would justify the police making an appropriate response. (Adams, 407 U.S. at 147, 32 L. Ed. 2d at 617-18, 92 S. Ct. at 1924.) As the Court noted in Adams, the fourth amendment does not require a police officer who lacks the precise level of information necessary to establish probable cause to simply shrug his shoulders and allow a crime to occur or a criminal to escape. Adams, 407 U.S. at 145, 32 L. Ed. 2d at 616, 92 S. Ct. at 1923.

It must also be emphasized that the underlying inquiry in any Terry-type situation is whether the police officer’s conduct was reasonable under the circumstances known to the officer at the time he initiated the stop and frisk. (See Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909, 88 S. Ct. at 1883; Adams, 407 U.S. at 148, 32 L. Ed. 2d at 618, 92 S. Ct. at 1924; People v. Long (1983), 99 Ill. 2d 219, 227-28, 457 N.E.2d 1252.) The reasonableness of such police conduct depends upon a balancing of the public’s interest and the individual’s right to personal security free from arbitrary interference by law officers. (People v. Smithers (1980), 83 Ill. 2d 430, 434, 415 N.E.2d 327.) To be reasonable, the officer’s inferences must be based on more substantial facts than would support a mere hunch. In order for the police to justify a temporary detention and frisk for weapons, they must point to specific articulable facts which, when taken together with natural inferences, make the intrusion reasonable. Smithers, 83 Ill. 2d at 435-36, 415 N.E.2d at 331.

Before analyzing the facts in this case, we first point out the two-step analysis set forth in Terry. The question of whether a stop is valid is a'distinct and separate inquiry from whether a frisk is valid. (People v. Galvin (1989), 127 Ill. 2d 153, 163.) The defendant here, however, has not raised the issue either below or in this appeal as to the reasonableness of the officer’s frisking him after the initial stop, but rather, has only addressed the validity of the initial stop. Because the parties have not argued the propriety of the officer’s frisk, we need not reach that question.

Here, the police received a telephone report from a security officer at a McDonald’s restaurant that someone in the restaurant had pointed out an individual and said he was carrying a gun. The security officer then observed the suspect, obtained a description, and ascertained that the suspect was travelling south on Gifford Street on foot, all of which he conveyed directly to the police radio dispatcher. The dispatcher, in turn, dispatched this information to patrol units, one of which was only three blocks from the McDonald’s. In responding, the officer observed someone fitting the description crossing the street near the McDonald’s and stopped him. We believe under these circumstances that the initial stop of defendant was reasonable under the fourth amendment.

The fact that the initial source of the information in this case came from a citizen informant, albeit an unnamed one, does not render the subsequent stop unreasonable. The informant came forward personally to give information to the security officer which was immediately conveyed to the police. We discern no significant distinction between a citizen’s in-person complaint to the police and the citizen’s complaint here to a security officer, a person of apparent police authority. The police, in turn, immediately dispatched the information to a squad car that was only three blocks from the restaurant. As such, the information was verifiable within a matter of minutes in a location close to the scene of the reported activity. (See Adams, 407 U.S. at 146, 32 L. Ed. 2d at 617, 92 S. Ct. at 1923.) Additionally, this information did not come from a completely anonymous telephone source, but, rather, came from an in-person citizen complaint. As such, we need not as rigorously scrutinize the citizen’s reliability to justify the stop as would be the case of an informant’s unverified tip for a narcotics arrest or search warrant. (See Adams, 407 U.S. at 146-47, 32 L. Ed. 2d at 617-18, 92 S. Ct. at 1923-24.) Furthermore, in the analogous situation where police officers receive information from a private citizen or victim, they may rely on that information without independent verification of the citizen’s reliability for the purpose of determining whether probable cause to arrest exists. (People v. Sain (1984), 122 Ill. App. 3d 646, 650-51, 461 N.E.2d 1043; see 1 W. La-Fave & J. Israel, Criminal Procedure §3.3, at 204-05 (1984); see also Chambers v. Maroney (1970), 399 U.S. 42, 46, 26 L. Ed. 2d 419, 425-26, 90 S. Ct. 1975, 1978-79.) Thus, keeping in mind the less intrusive nature of an investigatory stop, we do not believe that police reliance on an in-person citizen complaint of someone with a gun made to a security officer and promptly relayed to the police renders the immediate investigatory stop based thereon unreasonable.

Furthermore, under the additional circumstances present here, we do not find this stop to be unreasonable. The information provided by the security officer as to the suspect’s description was detailed and provided the officer with a limited basis for stopping defendant. The suspect was in the vicinity of the McDonald’s and fit the description provided by the security officer. Additionally, the report was of a person with a gun, which may constitute a criminal offense, and the officer by himself confronted the suspect. Under these circumstances the officer’s action in stopping respondent was a limited detention designed to protect himself and others and was not unreasonable. (See Terry, 392 U.S. at 29, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884.) As the Supreme Court has noted, the fourth amendment does not require a police officer who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. (Adams, 407 U.S. at 145, 32 L. Ed. 2d at 616, 92 S. Ct. at 1923.) And, as further stated by our supreme court, we should evaluate the officer’s actions in the light of one’s reaction had the officer failed to act. (Smithers, 83 Ill. 2d at 439, 415 N.E.2d at 332.) The “man with a gun” report, trader the particular circumstances here, alerted Officer Christ to a potentially dangerous situation justifying his immediate action in stopping the respondent. (See Smithers, 83 Ill. 2d at 439, 415 N.E.2d at 332.) We do not view these facts with analytical hindsight but instead consider them from the perspective of a reasonable officer at the time that the situation confronted him. See People v. Long (1983), 99 Ill. 2d 219, 228-29, 457 N.E.2d 1252.

We further note that defendant’s reliance on People v. Moraca (1984), 124 Ill. App. 3d 561, 464 N.E.2d 312, is misplaced. In that case, the court held that a Terry stop based on an anonymous telephone tip was unreasonable under the fourth amendment. (Moraca, 124 Ill. App. 3d at 564-67, 464 N.E.2d at 315-17; see also Village of Gurnee v. Gross (1988), 174 Ill. App. 3d 66, 69-70, 528 N.E.2d 411 (while reasonable cause to stop an individual may be based on an informant’s tip, some indicia of reliability must be provided to justify a Terry stop).) The Moraca court was careful to distinguish that situation from one where the informant speaks directly to the police, the information is immediately verifiable at the scene, and the information is specific as to the person being presently armed. Moraca, 124 Ill. App. 3d at 565, 464 N.E.2d at 315.

As discussed above, in this case the information came from an in-person citizen complaint reported to a security guard of apparent police authority which identified a specific person as being presently armed which was immediately verifiable at the scene, and as such we find Moraca to be distinguishable from this case. Because we do not find Moraca applicable to the situation presented by this case, we find it unnecessary to address the correctness of the court’s application of Illinois v. Gates (1983), 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, a case addressing the propriety of relying on an anonymous tip as the basis for probable cause for issuance of a search warrant, to the question of whether it is reasonable for a police officer to rely on an informant’s tip to justify a stop under the less stringent standard enunciated in Terry. See Adams, 407 U.S. at 147, 32 L. Ed. 2d at 617, 92 S. Ct. at 1923-24.

Finally, as noted above, defendant has not raised the issue of the reasonableness of the officer’s subsequent frisk following the initial stop. Nevertheless, based on the circumstances presented in the record, it was not unreasonable for the officer, who by himself had stopped a person reported to be armed with a gun, to have immediately frisked that person to establish whether he had a weapon in order for the officer to protect himself. See Adams, 407 U.S. at 148, 32 L. Ed. 2d at 618, 92 S. Ct. at 1924.

The judgment of the circuit court of Kane County is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., and LINDBERG, J., concur.