author: JUSTICE McNAMARA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LEONARD ZIOMEK, Defendant-Appellee.
    First District (3rd Division)
    No. 87—504
    Opinion filed February 1, 1989.

      Richard M. Daley, State’s Attorney, of Chicago (Kenneth T. McCurry, James E. Fitzgerald, and Robert McNamara, Assistant State’s Attorneys, of counsel), for the People.
    Paul A. McWilliams and Edwin J. Belz, both of Palatine, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Defendant Leonard Ziomek was charged with unlawful use of weapons, and charged under the Municipal Code of Chicago with failure to register a deadly weapon and unlawful possession of fireworks. Weapons and ammunition were confiscated from defendant’s Chicago home, but the evidence was later suppressed and the arrest quashed on fourth amendment grounds. The trial court then granted defendant’s motion for the return of the illegally seized weapons, but directed that the property be returned outside the borders of the City of Chicago. The State appeals the order returning the weapons to defendant.

On January 13, 1984, defendant was arrested and the following property confiscated:

UZI 9 mm
Smith and Wesson 41 Magnum
Browning 9 mm
Huger 357 Magnum
Huger 22 Caliber
Walther PPKS .380 Caliber
Colt 45 Caliber
Walther PP 7.65 mm
AMT 380 Backup
Derringer 22 Caliber
Remington 35 Caliber
Marlin 22 Cal., Long Rifle
New Haven 20 gauge shotgun
Blank Starter Pistol
Three Flintlock Pistols
Two 22 Caliber Crossman Pellet Pistols
Crossbow
Gerber Knife
13 Arrows
3,000 Rounds of Ammunition
25 Ammunition Cases
Walnut Display Case

On March 1, 1984, following the granting of defendant’s motion to quash the arrest and suppress the evidence, the court ordered the seized weapons confiscated and destroyed. On June 16, 1986, defendant petitioned for the return of the seized property.

On September 23, 1986, a hearing was held to determine if defendant was entitled to the return of the property. The trial court ruled that all of the property except the UZI 9 mm weapon should be returned to defendant. On October 29, 1986, the State argued in a hearing for reconsideration that defendant could not legally possess the unregistered weapons and ammunition in Chicago. On January 14, 1987, the trial court ruled that defendant had a property right in the guns, but that he could not lawfully possess them within Chicago. The court ordered the property be returned to defendant outside the city limits of Chicago.

Forfeiture proceedings are in rem and therefore civil in nature. (People v. Moore (1951), 410 Ill. 241, 102 N.E.2d 146; People v. Hermann (1986), 150 Ill. App. 3d 224, 501 N.E.2d 842.) After a conviction, or the dismissal of criminal charges, fourth amendment issues are not involved because the guilt or innocence of defendant is not at issue. (See generally 4 W. LaFave, Search and Seizure § 11.2(h), at 273 n.255 (2d ed. 1987).) The only issue concerns the contraband nature of the forfeitable property. (In re Twenty-Seven Thousand Four Hundred Forty Dollars (1987), 164 Ill. App. 3d 44, 517 N.E.2d 704.) The State must prove its right to the items by a preponderance of the evidence. (People v. LeShoure (1986), 143 Ill. App. 3d 839, 493 N.E.2d 687.) The trial court decision will be upheld unless contrary to law or contrary to the manifest weight of the evidence. (People v. LeShoure, 143 Ill. App. 3d 839, 493 N.E.2d 687.) Whether the property is contraband and subject to confiscation depends “upon the nature of its use at the time of the seizure.” (Emphasis added.) People v. Moore, 410 Ill. at 252.

The State argues that the trial court improperly ordered the return of the seized property because at the time of the seizure mere possession by defendant constituted a violation of the relevant Chicago ordinances, and thus the property was contraband per se. Defendant counters that a gun alone cannot be contraband per se, and that subsequent to the time of the seizure, the weapons could be moved out of Chicago and therefore no longer qualify as contraband of any kind.

The parties here correctly focus their analysis upon the issue of whether or not the property is contraband per se. A careful review of the qualities of the property reveals the arsenal in the present case is contraband per se.

Contraband per se includes property for which possession alone constitutes a criminal offense, e.g., sawed-off shotguns, narcotics and counterfeit money. (In re Fifty-Three Thousand Two Hundred Sixty Three Dollars (1987), 159 Ill. App. 3d 114, 512 N.E.2d 740; People v. Gant (1986), 150 Ill. App. 3d 180, 501 N.E.2d 355, cert, denied (1987), 484 U.S. 843, 98 L. Ed. 2d 91, 108 S. Ct. 134; People v. Mudd (1977), 54 Ill. App. 3d 603, 370 N.E.2d 37.) Such property need not be returned even if improperly seized. People v. Steskal (1973), 55 Ill. 2d 157, 302 N.E.2d 321; see also United States v. Jeffers (1951), 342 U.S. 48, 96 L. Ed. 59, 72 S. Ct. 93 (narcotics); Trupiano v. United States (1948), 334 U.S. 699, 92 L. Ed. 1663, 68 S. Ct. 1229 (distilling equipment and intoxicating liquor), overruled on other grounds by United States v. Robinowitz (1950), 339 U.S. 56, 94 L. Ed. 653, 70 S. Ct. 430.

“Derivative contraband” consists of property which is innocent in itself but which has been used in the perpetration of an unlawful act, e.g., a vehicle used in a robbery, or cash derived from the sale of illegal drugs. (People v. Steskal, 55 Ill. 2d 157, 302 N.E.2d 321; In re Fifty-Three Thousand Two Hundred Sixty Three Dollars, 159 Ill. App. 3d 114, 512 N.E.2d 740.) The State may retain derivative contraband but it must show a rational relationship between the property and an unlawful purpose before the property is subject to forfeiture. In re Fifty-Three Thousand Two Hundred Sixty Three Dollars, 159 Ill. App. 3d 114, 512 N.E.2d 740.

In choosing the correct category of the seized property, it is vital to look at the purpose of a forfeiture provision. See United States v. Davis (S.D. Ill. 1972), 346 E Supp. 435 (return of contraband per se, such as narcotics or an unregistered still, would clearly have frustrated the express public policy against the possession of such objects), citing United States v. Jeffers, 342 U.S. 48, 96 L. Ed. 59, 72 S. Ct. 93 and Trupiano v. United States, 334 U.S. 699, 92 L. Ed. 1663, 68 S. Ct. 1229. See also People v. Moore, 410 Ill. 241, 102 N.E.2d 146 (court focuses on legislative determination that gambling implements are dangerous to public welfare, and finds such items have ceased to be regarded or treated as property and are liable to seizure and forfeiture); In re Twenty-Seven Thousand Four Hundred Forty Dollars, 164 Ill. App. 3d 44, 517 N.E.2d 704 (purpose of relevant broad-sweeping forfeiture provision is to control illegal trafficking in controlled substances); People ex rel. Stocke v. 11 Slot Machines (1979), 80 Ill. App. 3d 109, 399 N.E.2d 305 (consideration must be given to evil to be remedied by statute prohibiting gambling and possession of gambling devices because of evil consequences which accompany it).

In Sklar v. Byrne (N.D. Ill. 1983), 556 F. Supp. 736, aff’d (7th Cir. 1984), 727 F.2d 633, a Chicago ordinance requiring the registration of handguns was upheld as constitutional. The court noted findings made by the Chicago city council in regard to the registration requirement. The council found that firearms played a major role in the commission of homicide, aggravated assault and armed robbery; that improper storage of firearms and ammunition is a major factor in accidental deaths and injuries in homes; and that it is necessary and desirable to protect the residents of Chicago from the loss of property and the injury or death connected to firearms. (Sklar, 556 F. Supp. at 737-38.) The ordinance’s preamble establishes that it is an attempt to limit the proliferation and convenient availability of firearms, thereby promoting the health and safety of the citizens by reducing firearm-related deaths and injuries. (Sklar, 556 F. Supp. at 739; see also United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (purpose of Gun Control Act includes broad remedial aims concerned with widespread, indiscriminate traffic in firearms and general availability to those whose possession is contrary to the public interest, and includes encouraging local governments to enforce their gun control laws and to adopt stricter laws).) On the basis of these public policies, the City of Chicago banned further registration after the statutory cut-off date. Moreover, the ordinance imposes monetary fines and terms of imprisonment as penalties for convictions resulting from violations of the law.

In addition, the legislature, to protect the health, safety and welfare of the public, prohibits the acquisition or possession of a firearm or ammunition without an Illinois firearm owner’s identification card (Ill. Rev. Stat. 1985, ch. 38, par. 83 — 1 et seq.) and prohibits convicted felons and others from acquiring such a card (Ill. Rev. Stat. 1985, ch. 38, par. 83 — 4). The legislature recognized that local ordinances of municipalities may impose additional registration requirements under similar public policies:

“The provisions of any ordinance enacted by any municipality which requires registration or imposes greater restrictions or limitations on the acquisition, possession and transfer of firearms than are imposed by this Act, are not invalidated or affected by this Act.” Ill. Rev. Stat. 1985, ch. 38, par. 83 — 13.1.

The classification process of contraband as derivative or per se determines the property’s disposition, since once a court labels the property “contraband per se,” it need not be returned. (United States v. Jeffers, 342 U.S. 48, 96 L. Ed. 59, 72 S. Ct. 93.) But if the court labels the property “derivative contraband,” the State must prove by a preponderance of the evidence a nexus between the property and an unlawful purpose. At this point, parties may attempt to “cure” an illegality by manipulating certain pieces of the puzzle. These pieces, or factors which might play a role in a forfeiture decision, include the place and time of seizure; the person from whom the property was seized; any possible cure of the illegality; whether the property was used by defendant and how; whether the property is still needed by authorities; and the policy reasons for the seizure, or the danger or risk to be protected.

Following the property’s seizure, a court might label an unregistered gun “derivative contraband.” Moving the gun’s location to a place without a registration requirement might, on its face, appear to “cure” the illegality of the possession. The court has the luxury of choosing a place and time after the offense of unlawful possession of an unregistered weapon occurred, and after the seizure occurred.

If the court classifies the weapon as derivative contraband, and then directs the weapon’s removal from the city, it thereby alters the place and time of the original possession. Thus, the illegality of possession alone, the most visible quality of contraband per se, disappears. A closer look, however, reveals the error of this method in view of more fundamental, often ignored, elements which distinguish contraband per se from derivative contraband.

With derivative contraband, the law particularly seeks to seize and thereby protect the evidence of the completed crime. The legislature does not seek to remove all weapons from society, but instead seeks the single murder weapon which killed the victim. The legislature does not seek to remove all money from society, but instead seeks the single cash payment which defendant received in exchange for the narcotics. The legislature is not removing all vehicles from society, but instead seeks only the single identifiable vehicle used in the robbery. The danger is not ongoing. The murder victim will not again be killed by that weapon; the drugs’ recipient will not continue buying the same drug lot; and the vehicle will not be used in the identical robbery.

An illegally possessed weapon violating registration requirements does not fit into the derivative contraband mold. Instead, it resembles other contraband per se items such as counterfeit money and illegal narcotics. The focus changes from the manner in which the property was used by some individual, to the very nature of the property itself. The unregistered status of the gun is not a single, completed occurrence. Standing alone, the gun’s lack of registration creates no individual, identifiable victim. Instead, the lack of registration continues as an ongoing condition. The weapon remains unregistered.

Furthermore, the omitted gun registration requires no active conduct by defendant. The unregistered status remains ongoing, and the danger to be avoided by registering the weapons continues until the property is actually seized. The mere existence of the property presents danger. With contraband per se, the legislature or municipality seeks to protect society and potential victims of nonaccidental and accidental deaths and injuries resulting from the easy access to, and improper storage and use of, weapons and ammunition. As long as the unregistered gun is not seized, the danger remains. The law of that jurisdiction seeks to remove all unregistered guns from society, not merely a single unregistered gun.

We conclude that these are crucial distinctions between contraband per se and derivative contraband although they are sometimes unperceived differences, easily masked by improper labeling. The operational purpose of the classifications, therefore, extends beyond the more visible factors of the time and place of seizure. The trial court’s attempt to transform the weapons into legitimately possessed property by moving them outside of Chicago fails for these reasons. Such a holding ignores the contraband per se nature of the property and ignores the relevant public policies supporting the forfeiture provisions.

We concur with the court’s analysis set forth in United States v. Ten Miscellaneous Firearms (D. Neb. 1985), 622 F. Supp. 759. The court noted that defendant’s conviction for possession of unregistered firearms had been reversed due to an unconstitutional search and seizure. The court found the firearms were contraband per se and subject to forfeiture solely because defendant was in possession of the firearms, which were unregistered in violation of the National Firearm Act. The court concluded that as a matter of law the government was entitled to forfeiture.

Similarly, in People v. Jordan (1962), 37 Misc. 2d 33, 234 N.Y.S.2d 323, an illegal search resulted in the seizure of a gun found in defendant’s car. The gun was inadmissible, therefore, at trial on the charge of illegal possession of a firearm. The court refused to return the gun, however, because defendant did not have a valid license. Without the license, possession was unlawful, and under the penal code the gun constituted a nuisance.

In dicta, this court stated that a revolver was contraband where defendant carried it concealed and without the proper State firearm owner’s identification card. People v. Green (1977), 45 Ill. App. 3d 506, 359 N.E.2d 1110. See also United States v. Bowdach (S.D. Fla. 1976), 414 F. Supp. 1346, affd (5th Cir. 1977), 561 F.2d 1160 (in dicta, court states that possession of an automatic weapon is legal only if registration requirement is met, and violation of that requirement would result in gun’s acquiring status of contraband). Cf. City of Chicago v. Pudlo (1983), 123 Ill. App. 3d 337, 344, 462 N.E.2d 494, cert, denied (1985), 471 U.S. 1066, 85 L. Ed. 2d 497, 105 S. Ct. 2140 (court remands for hearing on issue of motion for return of weapons and quotes trial court statement that it would have returned the illegally seized weapons “had you been registered properly with all the authorities”); People v. Gant, 150 Ill. App. 3d 180, 191, 501 N.E.2d 355 (court notes that sawed-off shotgun was contraband and thus subject to forfeiture, and on remand other guns could be returned to defendant only “if that may legally be done”).

The weapons and ammunition confiscated from defendant were suppressed as evidence. If a motion to suppress illegally seized evidence is granted, “the property shall be restored, unless otherwise subject to lawful detention.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 38, par. 114 — 12(b).) The property here was lawfully detained due to its unregistered status as contraband per se. The police confiscated the items, and arrested defendant, at his Chicago home. He was charged with unlawful use of weapons (Ill. Rev. Stat. 1983, ch. 38, pars. 24 — 1(a)(4), (a)(10)); failure to register a deadly weapon (Chicago Municipal Code §11.1 — 7 (1984)); and unlawful possession of fireworks (Chicago Municipal Code §125 — 22 (1984)). A statutory cut-off date barred the possibility of a subsequent registration of the guns. Chicago Municipal Code §§11.1 — 3(b), (c) (1984).

Weapons seized under these provisions are to be destroyed once they are no longer needed as evidence. (Chicago Municipal Code §11.1 — 20(1984).) Following the dismissal of all criminal charges against defendant due to the fourth amendment violations, the weapons were no longer needed as evidence and thus were subject to forfeiture and destruction. (See also Ill. Rev. Stat. 1985, ch. 38, par. 108 — 2 (when no charges are preferred, all things, other than contraband, shall be returned to the person upon his release from custody).) We have found this property to be contraband per se, and thus it was subject to forfeiture.

Under the Illinois Controlled Substances Act (Ill. Rev. Stat. 1985, ch. 561/z, par. 1100 et seq.), a defendant may designate a new owner for the forfeited weapons. (See People v. LeShoure, 143 Ill. App. 3d 839, 493 N.E.2d 687; see also State v. Sutterfield (Minn. App. 1984), 347 N.W.2d 295; LoGiudice v. State (1982), 164 Ga. App. 709, 297 S.E.2d 499, grant of cert, vacated (1983), 251 Ga. 711, 309 S.E.2d 355, cert, denied (1984), 466 U.S. 950, 80 L. Ed. 2d 538, 104 S. Ct. 2152.) The State legislature and City of Chicago, however, have not provided for the sale or use of seized property in the weapons seizure laws at issue here. (Cf. People v. Hermann, 150 Ill. App. 3d 224, 501 N.E.2d 842 (listing statutes regarding disposition of weapons used in crimes; obscenity; gambling devices; air rifles; vehicles used in crimes; and drugs).) Additionally, we note that the ordinance does not permit the handgun owner to even sell or give away the weapons in Chicago. Chicago Municipal Code §11.1 — 2(a) (1984).

We note that this court did not hold guns to be contraband per se in People v. Earl (1984), 121 Ill. App. 3d 254, 459 N.E.2d 342, and People v. Mudd (1977), 54 Ill. App. 3d 603, 370 N.E.2d 37. In both cases, however, the State either did not dispute, or stipulated, that the weapons were not contraband per se. Defendant relies on People v. Wynn (1981), 98 Ill. App. 3d 567, 424 N.E.2d 906, where the court stated that a gun is not contraband per se and that a conviction was required prior to confiscation. Defendant in Wynn had been placed on three months’ supervision for failure to maintain a valid firearm owner’s identification card (Ill. Rev. Stat. 1979, ch. 38, par. 83 — 2(a)). In contrast, in the present factual setting we hold the gun does constitute contraband per se. Moreover, while the confiscation in Wynn was pursuant to section 24 — 6(a) of the Criminal Code of 1961, which expressly requires a conviction, the present confiscation was pursuant to the Municipal Code of Chicago provisions which were not in effect at the time of Wynn and which include no such conviction requirement. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (acquittal on criminal charges does not prevent in rem forfeiture proceedings).

The trial court erred in ordering the return of the weapons outside the City of Chicago. We direct the trial court to order the confiscation of the property and proceed to dispose of the property under the relevant local ordinance.

For these reasons, the judgment of the circuit court of Cook County ordering the return of the weapons outside the City of Chicago is reversed, and the cause is remanded for further proceedings consistent with the holdings contained herein.

Reversed and remanded with directions.

FREEMAN, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    MYRNA STERN, Petitioner-Appellant, v. THOMAS STERN, Respondent-Appellee.
    First District (3rd Division)
    No. 87—1080
    Opinion filed February 1, 1989.

      Arthur Newman, of Chicago, for appellant.
    Joel S. Ostrow, of Chicago, for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

This case involves an appeal from the denial of a motion to vacate a judgment for dissolution of marriage filed by petitioner-appellant, Myrna Stern, against respondent-appellee, Thomas Stern. On appeal, petitioner contends that: (1) the trial court abused its discretion in entering a judgment denying her maintenance; setting child support at $100 per week for the parties’ two children; and failing equitably to divide certain property; (2) the trial court erred in granting respondent’s motion to strike petitioner’s amended petition to vacate the judgment for dissolution of marriage and denying petitioner an evidentiary hearing on the motion; and (3) the trial court abused its discretion in denying petitioner’s motion to continue the trial, considering irrelevant matters regarding the motion, and making prejudicial comments to petitioner’s counsel.

For the reasons stated below, we reverse the judgment of the circuit court and remand this matter for further proceedings.

The record indicates the following. The parties were married on July 19, 1976. On December 17, 1981, petitioner filed a petition for dissolution of the marriage, asserting that as of December 1981, Thomas Stern was employed as an attorney and Myrna Stern was a housewife. Two children were born of the marriage — Richard, born July 17, 1977; and Johnathan, born April 19, 1979. On February 4, 1982, the trial court entered an order requiring respondent to pay-petitioner $448.70 per month as unallocated support and maintenance, based on the court’s finding that respondent’s net monthly income was $1,482. The order granted petitioner leave to file a petition for modification if she was able to show that respondent’s income was greater than that found by the court.

On February 26, 1982, petitioner filed a petition to reconsider and modify the support order. Petitioner alleged that respondent had an annual gross income in 1981 of $193,000 from his professional corporation, and also had a six-figure income in 1980, 1979, 1978, and 1977; that respondent has the use of three automobiles from his professional corporation; and that respondent’s monthly personal expenses far exceeded the monthly sum he was required to pay in unallocated support and maintenance. The petition asserted that respondent was able to pay a substantially greater sum in support and maintenance than he was paying, and that substantially greater sums were required in order to provide for the standard of living enjoyed by petitioner and the children during the marriage. Also on February 26, 1982, petitioner filed an amended petition for dissolution.

Respondent filed a response, asserting that petitioner was confusing respondent’s personal income with income from his professional corporation, and denying the existence of any grounds for modification. On May 18, 1983, after a hearing, the trial court entered an order finding that respondent’s monthly net income was $3,600, and requiring respondent to pay $1,260 (35% of his income) per month as unallocated maintenance and support. The order required respondent to pay the modified amount retroactively to February 26,1982.

Trial of the matter was set for March 10 and 12, 1986. On March 12, 1986, petitioner’s motion to continue the trial date was granted. The trial court later set May 27, 1986, as a hearing date on pending motions. On May 27, 1986, counsel for both parties appeared in addition to respondent. Counsel for petitioner requested a continuance, asserting two grounds. First, petitioner had indicated to her counsel by telephone that morning that she was “paralyzed with fear” and was unable to appear at the hearing. Petitioner’s counsel indicated that he would be at “a tremendous disadvantage” if required to proceed with the hearing in the absence of his client. In addition, petitioner’s counsel asserted that respondent had failed to comply with discovery requests regarding documents pertaining to respondent’s income. Counsel for respondent stated at the hearing that his client would testify that he had complied with all discovery requests and had forwarded the requested documents to petitioner’s former counsel. Counsel for petitioner responded that he wished to call petitioner’s former counsel to testify as to whether they received the requested documents. Counsel for petitioner also stated his awareness, however, that petitioner’s former attorneys were not available to testify on the morning of the hearing.

The trial court denied the motion for continuance. Petitioner’s counsel declined to present evidence on the petition. Respondent testified that his net monthly income was $1,800. He stated that the finding by the trial court in May 1983 that his monthly net income was $3,600 was a reflection of income for his professional corporation and was not an accurate representation of his personal income. Respondent explained that his income tax returns from his professional corporation showed that after business expenses were deducted, his net monthly income from the corporation was $1,800. Respondent also testified regarding petitioner’s education and employment experience; that petitioner was living in a home which she owned prior to the marriage; and that the parties’ two children were in excellent health. Petitioner’s counsel declined to cross-examine respondent.

On June 5, 1986, the court entered judgment for dissolution of marriage and included in the judgment the following findings and rulings. Respondent’s monthly income was $1,800. The court ordered that $50 per week for each of the parties’ two children was a reasonable and proper sum for respondent to pay as child support and was within statutory guidelines. Further, the unallocated maintenance and support previously paid by the respondent stands in lieu of, and in the place of, rehabilitative maintenance. In addition, petitioner’s failure to take any action regarding her own support indicated to the trial court that rehabilitative maintenance “will serve no useful purpose.”

The trial court also found that there was no marital property to be dealt with, in view of the decision in Stern v. Stern (1982), 105 Ill. App. 3d 805, 434 N.E.2d 1164, involving an appeal from an action based upon the petition of Thomas Stern for declaratory judgment against Myrna Stern regarding a post-nuptial property agreement executed by the parties. In addition, the trial court held that respondent was responsible for payment of the children’s medical insurance until they reach majority and for payment of their college educational expenses.

Petitioner filed a motion to vacate the judgment of dissolution within the time allowed for under section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203). On August 29, 1986, petitioner filed an amended petition to vacate. Petitioner asserted that respondent had fraudulently misrepresented his income to the court; that petitioner had not been prepared for trial by her previous counsel; and that petitioner was told by her previous counsel that the trial would not go forward on May 27, 1986. On October 2, 1986, respondent filed a motion to strike the original and amended petitions. The court granted respondent’s motion and granted petitioner leave to file another amended petition to vacate. On November 26, 1986, petitioner filed another amended petition to vacate. Respondent’s motion to strike this second amended petition was granted by the trial court on March 17, 1987, and petitioner appealed.

On appeal, petitioner contends that the trial court abused its discretion in making the child support award, since the court failed accurately to determine respondent’s income or to consider other relevant factors set forth in section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1985, ch. 40, par. 505(a)). Specifically, petitioner asserts that the trial court failed to consider the financial needs and resources of petitioner, the custodial parent; the standard of living the children would have enjoyed had the marriage not been dissolved; and the physical and emotional condition of the children. Petitioner asserts that the evidence indicated that respondent had been paying $1,260 per month for 51 months prior to trial in unallocated maintenance and child support. Further, respondent’s testimony that his net monthly income was only $1,800 should have indicated to the trial court that respondent would thus be left with only $540 per month for his personal expenses, an unrealistic sum. The trial court, petitioner asserts, should have questioned respondent regarding a possible discrepancy regarding his expenses and financial resources. Petitioner contends that the court failed to review income tax returns relative to respondent’s professional corporation, or to inquire regarding shareholders, directors, or officers of the corporation.

Section 505 of the Marriage Act provides that for two children, the minimum amount of child support the supporting parent must pay is 25% of his income. (Ill. Rev. Stat. 1985, ch. 40, par. 505(aXl).) That percentage is to be applied unless the trial court, after considering evidence regarding relevant factors, determines that a different sum be required. Relevant factors include: (a) the financial resources of the child; (b) the financial resources and needs of the custodial parent; (c) the standard of living the child would have enjoyed had the marriage not been dissolved; (d) the physical and emotional condition of the child, and his educational needs; and (e) the financial resources and needs of the noncustodial parent. (Ill. Rev. Stat. 1985, ch. 40, par. 505(a)(2).) The amount of the award lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. In re Marriage of Bundle (1982), 107 Ill. App. 3d 880, 438 N.E.2d 229.

In the instant case we find that the trial court abused its discretion in determining the award of child support. The record indicates a conflict in evidence regarding respondent’s income. The record contains evidence that respondent is the sole shareholder of the corporation, which enjoyed a monthly profit of $3,600. On the other hand, respondent testified that his monthly income was $1,800, and stated that his income tax returns supported his assertion. The record indicates, however, that respondent failed to comply with petitioner’s discovery request to provide documentation regarding his business expenses. The record fails to indicate that respondent ever presented the documentation to support his assertion that his monthly income was $1,800. The trial court therefore did not have before it sufficient evidence regarding respondent’s income, the crucial factor relied upon by the trial court in determining the child support award.

Further, the only evidence the trial court considered regarding the circumstances of petitioner was that given through the testimony of respondent. Respondent testified regarding the employment history of petitioner, but the trial court was unaware of the actual needs of petitioner. Respondent also stated that while petitioner was unemployed at the time of the hearing, her education would allow her to obtain employment so that she could meet her financial needs. Without the testimony of petitioner herself, however, the trial court was unaware of any attempts by petitioner to obtain employment and was not in a position accurately to determine the resources of petitioner in relation to her ongoing expenses. Further, the testimony by respondent regarding the financial resources and needs of the children was very limited. In view of all of the foregoing, we find that the trial court abused its discretion in awarding child support and its order as to child support cannot stand. See In re Marriage of Pitts (1988), 169 Ill. App. 3d 200, 523 N.E.2d 664.

In addition, petitioner contends that the trial court erred in failing to consider the factors set out in section 504 of the Marriage Act (III. Rev. Stat. 1985, ch. 40, par. 504) in denying maintenance to petitioner. For instance, the court did not have evidence regarding petitioner’s recent employment history, her income, or living expenses, or regarding the standard of living enjoyed by the parties before their separation. In addition, the court did not consider what effect the need to care for the children had on petitioner’s employability. Finally, the court did not have evidence regarding the physical or emotional condition of petitioner or the children.

Section 504(a) (Ill. Rev. Stat. 1985, ch. 40, par. 504(a)) provides that the court may grant a maintenance award only if it finds that the spouse seeking maintenance: (1) lacks sufficient property to provide for her reasonable needs; and (2) is unable to support herself “through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home”; or (3) is otherwise without sufficient income. Subsection (b) of section 504 (Ill. Rev. Stat. 1985, ch. 40, par. 504(b)) sets forth factors to be considered in determining an appropriate amount for the award.

We find, as similarly stated in our analysis of petitioner’s argument regarding child support, above, that without the testimony of petitioner or other evidence presented to show specifically the resources and needs of petitioner in addition to the needs of the children, the trial court was unable to make a proper determination regarding whether maintenance should be awarded and what a reasonable award of maintenance would be. We find that the trial court abused its discretion by failing adequately to consider all relevant factors. This matter must be reversed and remanded to allow for a complete consideration of the factors relevant to an award of maintenance.

Petitioner also contends that the trial court abused its discretion in denying her motion for a continuance of the trial. Pursuant to section 2 — 1007 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1007), the trial court has discretion to grant a continuance “for the doing of any act” prior to judgment. Supreme Court Rule 231 provides that no motion for a continuance shall be heard after the cause has been reached for trial, unless a sufficient excuse is shown for the delay. (107 Ill. 2d R. 231.) The moving party must give especially grave reasons for a continuance once the case has reached the trial stage because of the potential inconvenience to the witnesses, the parties, and the court. (Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 511 N.E.2d 690; Teitelbaum v. Reliable Welding Co. (1982), 106 Ill. App. 3d 651, 435 N.E.2d 852.) A decisive factor in determining the propriety of the trial court’s exercise of its discretion in ruling on a motion for continuance is whether the party seeking a continuance has shown a lack of due diligence in proceeding with the cause. Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498, 505 N.E.2d 1213.

We find that in the instant case, petitioner set forth sufficient grounds for the granting of a continuance of the matter. Petitioner’s counsel indicated that petitioner was emotionally unable to attend the trial on May 27, 1986. In addition, petitioner’s counsel indicated at the hearing, in view of respondent’s continued failure to provide requested discovery documents and assertion that such documents already had been provided to petitioner’s former counsel, that it was necessary for him to call petitioner’s former counsel to testify regarding whether the documents in fact had been received. Petitioner’s request for a continuance for a later date when the former counsel would be available was not an unreasonable request. The requested documents pertain to respondent’s income and thus contain information essential to the determination of the matters before the court. Nor do we find that petitioner failed to show due diligence in proceeding with the cause. Under these circumstances, we believe the trial court abused its discretion in denying a continuance.

Since we are reversing this matter on the grounds already determined, we need not address petitioner’s remaining arguments regarding the granting of respondent’s motion to strike the amended petition to vacate and the trial court’s allegedly improper comments at the hearing on the motion.

For the foregoing reasons, we reverse the judgment of the circuit court of Cook County and remand this matter to the trial court for further proceedings.

Judgment reversed and cause remanded.

McNAMARA and RIZZI, JJ., concur.


author: JUSTICE WHITE

text:
    JACKI ATAARA MARI, Plaintiff-Appellant, v. WESTINGHOUSE BROADCASTING COMPANY, INC., d/b/a WIND Radio Station, et al., DefendantsAppellees.
    First District (3rd Division)
    No. 87—3865
    Opinion filed February 1,1989.
    Janet F. Gerske and Richard J. Brzeczek, both of Chicago, for appellant.
    Dennis C. Waldon and Michael J. Allen, both of Keck, Mahin & Cate, of Chicago, for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

The plaintiff, Jacki Ataara Mari (Mari), appeals from an order of the circuit court awarding defendants, Westinghouse Broadcasting Company, Inc., d/b/a WIND radio station, Sue Eggleton, and Ted Lauterbach, $48,313.70 in attorney fees, pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611). She argues that the court abused its discretion in finding that defendants were entitled to fees and, in the alternative, that if the award was not an abuse of discretion, the amount awarded was excessive..

In June 1983, Mari filed suit charging defendants with breach of contract, invasion of privacy, and misrepresentation. Defendants filed a motion for summary judgment stating that no contract was entered into by the parties, that there was no invasion of privacy since Mari consented to the use of her name, and that Mari’s claim of misrepresentation was unsupported by the facts and insufficient as a matter of law. The trial court granted defendants’ motion, finding that there was no basis for Mari’s invasion of privacy and misrepresentation claims and that if a contract existed between Mari and defendants, it was terminable at will. The court also found that defendants’ acts were not the proximate cause of any damage suffered by Mari.

Subsequently, defendants filed a section 2 — 611 motion which alleged that a number of the statements in Mari’s complaint were untrue and made without reasonable cause and requested that Mari be required to pay $72,242.66 in attorney fees and expenses incurred by defendants in defending the action. Under section 2 — 611, allegations and denials made without reasonable cause and found to be untrue shall subject the party pleading them to the payment of attorney fees and reasonable expenses actually incurred by the other party by reason of the untrue pleading. -Following a hearing on defendants’ motion, the trial court held that paragraphs 29 and 41 of the complaint contained untrue statements and therefore plaintiff was liable under section 2 — 611.

Relying on Mari’s deposition testimony that she produced and appeared on a cable television program, wrote a weekly newspaper column, gave lectures, and appeared on radio stations in Geneva, Illinois, and St. Joseph, Michigan, during the period she appeared on WIND, the court found that the allegations in paragraphs 29 and 41 that Mari “devoted all her time and efforts to the development and preparation as a guest on defendant’s talk show” and that she was “prevented from participating on other radio stations as a result of defendant’s appropriation” were untrue. The court stated that Mari could have alleged that she devoted “substantially all” rather than “all of her time and efforts” and concluded that the use of the word “all” indicated that she intentionally made a false statement.

A request for a fee award is addressed to the sound discretion of the trial court, and the court’s determination ordinarily will not be disturbed on review. (Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 466 N.E.2d 945.) Section 2 — 611 should be strictly construed and its application specifically limited to cases falling within its terms. (Third Establishment, Inc. v. 1931 North Park Apartments (1981), 93 Ill. App. 3d 234, 417 N.E.2d 67.) Thus, a party seeking an award under section 2 — 611 has the burden of establishing that he actually incurred fees and expenses by reason of the untrue pleadings. Johnson v. LaGrange State Bank (1978), 73 Ill. 2d 342, 383 N.E.2d 185; Bank of Naperville v. Holz (1980), 86 Ill. App. 3d 533, 407 N.E.2d 1102.

In the present case, Mari argues that the trial court’s award was improper because defendants failed to establish that any of their fees were incurred by reason of the statements contained in paragraphs 29 or 41. Mari also argues that the trial court erred in finding that the allegations in those paragraphs were untrue and made without reasonable cause.

Defendants argue that the claims were essential elements of all three counts of Mari’s complaint. They contend that the allegations formed the basis for the damages claims in all three counts of the complaint and the consideration for the alleged contract. They also contend that proof of the allegations in both paragraphs would have been essential to establishing the misrepresentation claim. In response, Mari claims that the allegations in paragraphs 29 and 41 were not the basis for her claims and that their truth or falsity played no part in the trial court’s disposition of the case. Both parties cite this court’s decision in Dayan v. McDonald’s in support of their arguments.

In Dayan, plaintiff filed suit against McDonald’s seeking to enjoin it from terminating his restaurant franchise. In paragraphs 11 and 14 of his complaint, plaintiff alleged that he had complied with all of defendant’s requests to change and improve the operation of the franchise; that at no time had he been in breach of the master licensing agreement; and that defendant’s termination of the licensing agreement was wrongful. This court found that these allegations were untrue and made without reasonable cause and that they created the central issues upon which the case was tried. The court stated that the false assertions were the cornerstone of the entire action without which there would have been no dispute or need for trial and that all of McDonald’s expenses and fees in defending the unfounded suit were incurred by reason of the untrue pleadings. Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 24.

We do not believe that the false allegations at issue in the present case can be considered the cornerstone of the entire action nor do we believe that there would have been no dispute absent the allegations. The issues raised by the complaint were whether a contract existed and whether defendants were in breach of it, whether defendants appropriated Mari’s name for commercial advantage, and whether defendants were guilty of misrepresentation. The false allegations contained in paragraphs 29 and 41 were not central to the complaint and it does not appear that they played a material part in either defendants’ motion for summary judgment or the court’s decision to grant the motion.

In moving for summary judgment, defendants’ argued that no contract existed, that Mari consented to the use of her name, and that the complaint failed to allege facts sufficient to support the misrepresentation claim. In granting defendants’ motion, the trial court found that any agreement between the parties was terminable at will, that there was no basis for the invasion of privacy claim, that Mari’s misrepresentation claim was insufficient because she failed to allege that she had relied to her detriment on defendants’ misrepresentation, and that no damage suffered by Mari was foreseeable. The allegations in paragraphs 29 and 41 concerned the damages suffered by Mari, and although these allegations might have been relevant had Mari established a contract and breach, they appeared to have had little bearing on the trial court’s decision to grant summary judgment for defendants.

Defendants have failed to meet their burden of establishing that their fees were incurred by reason of the false statements contained in paragraphs 29 and 41. There is nothing in the record before us that supports the defendants’ claim that their expenses would not have been incurred if the false allegations had been omitted from the complaint, nor is there anything that indicates that defendants would have proceeded differently absent the allegations contained in paragraphs 29 and 41. Therefore, we find that defendants are not entitled to recover the expenses they incurred in defending the action and that the trial court erred in granting defendants’ section 2 — 611 motion. Accordingly, the judgment of the circuit court of Cook County is reversed.

Reversed.

McNAMARA and RIZZI, JJ., concur.


author: JUSTICE COCCIA

text:
    VINCENT DIVITO, INC., Plaintiff-Appellant, v. VOLLMAR CLAY PRODUCTS COMPANY, Defendant-Appellee and Third-Party Plaintiff (Armco, Inc., Third-Party Defendant).
    First District (5th Division)
    No. 87—3286
    Opinion filed February 3, 1989.

      Gerald L. Angst, Richard J. O’Brien, and Gerard D. Kelly, all of Sidley & Austin, of Chicago, for appellant.
    Torshen, Schoenfield & Spreyer, Ltd., of Chicago (Jerome H. Torshen, Abigail K. Spreyer, and James K. Genden, of counsel), for appellee.
   JUSTICE COCCIA

delivered the opinion of the court:

Plaintiff, Vincent DiVito, Inc., appeals from: (1) the denial of its motion for summary judgment on a cause of action seeking promissory estoppel; (2) the granting of defendant Vollmar Clay Products Company’s cross-motion for summary judgment on DiVito’s promissory estoppel cause of action; and (3) the granting of Vollmar’s cross-motion for summary judgment on DiVito’s cause of action for breach of contract.

We affirm the denial of DiVito’s motion seeking summary judgment on its promissory estoppel count; reverse the entry of summary judgment in Vollmar’s favor on DiVito’s promissory estoppel count; and affirm the entry of summary judgment in Vollmar’s favor on DiVito’s breach of contract count. We do so for the following reasons.

In November 1982, the Village of Palatine (Village) solicited bids for a federally funded sewer construction project. DiVito desired to be the general contractor for the Village on this project. Vollmar, a distributor of piping materials, entered into these negotiations -with the hope of becoming DiVito’s subcontractor in the event the latter was awarded the contract. As part of these negotiations, Vollmar quoted prices to DiVito. On February 14, 1983, DiVito submitted a bid to Palatine, which included Vollmar’s prices. DiVito was the low bidder and Palatine announced that it was awarding it the contract. On March 15, 1983, Vollmar sent DiVito a price list, guaranteeing that the quoted prices would be “good until 12-31-85,” the expected completion date of the project. The second low bidder filed a protest on March 21, 1983, contesting the award.

On August 8, 1983, while the bid protest was being litigated, Vollmar was notified by its supplier, Armco, Inc., that piping prices were rising (Vollmar has filed a third-party action against Armco, which is not relevant to this appeal). Vollmar, in turn, notified DiVito that it was withdrawing the March price quotation. On October 6, 1983, the bid protest was resolved in DiVito’s favor by the Federal district court. At DiVito’s request, Vollmar submitted a new price list in November 1983. In December 1983, DiVito and Palatine entered into a contract for the project. DiVito, however, placed its order for piping with a competitor of Vollmar.

On May 29, 1985, DiVito filed a two-count complaint against Vollmar, seeking to recover the difference between the price of the piping ultimately ordered and the price quoted by Vollmar in March 1983. Count I of the complaint avers that Vollmar breached an oral contract with DiVito; count II seeks to estop Vollmar from denying its promise to supply piping at the prices quoted in March 1983, given DiVito’s reliance thereon.

On December 15, 1986, DiVito moved for summary judgment upon count II of its complaint, which sounded in promissory estoppel. On June 10, 1987, following a hearing, the motion was denied. Subsequently, Vollmar filed a cross-motion for summary judgment directed against count II of DiVito’s complaint, as well as count I, which sounded in breach of contract. On September 21, 1987, Vollmar’s cross-motion was heard, along with DiVito’s motion for reconsideration of the court’s denial of its motion for summary judgment seeking promissory estoppel. At this hearing, the circuit court denied DiVito’s motion and granted Vollmar’s cross-motion.

The purpose of summary judgment is to determine the presence or absence of triable issues of fact. (Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 1077, 500 N.E.2d 454, 455.) In determining whether the moving party is entitled to summary judgment, the pleadings, depositions, admissions, and affidavits should be construed strictly against the movant and liberally in favor of the opponent. (Kolakowski v. Voris (1980), 83 Ill. 2d 388, 398, 415 N.E.2d 397, 402.) If the facts allow for more than one conclusion or inference, including one unfavorable to the movant, the motion should be denied. In short, the right of the moving party must be clear and free from doubt. Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 1077, 500N.E.2d 455, 456.

In light of these guiding principles, the entry of summary judgment in Vollmar’s favor on DiVito’s promissory estoppel claim must be reversed. The elements of promissory estoppel are: a promise unambiguous in terms, with reliance thereon by the promisee, with such reliance being expected and foreseeable by the promisor, and with the promisee in fact relying on the promise to his injury. (S.M. Wilson & Co. v. Prepakt Concrete Co. (1974), 23 Ill. App. 3d 137, 139, 318 N.E.2d 722, 724.) The underlying purpose of the doctrine of promissory estoppel is to protect innocent parties. Accordingly, in order to invoke the doctrine, the promisee’s reliance must be reasonable and justifiable. S.N. Nielsen Co. v. National Heat & Power Co. (1975), 32 Ill. App. 3d 941, 944, 337 N.E.2d 387, 389.

As to count II of DiVito’s complaint, we conclude that there is a triable issue of fact concerning whether its reliance upon Vollmar’s price guarantee was reasonable in view of the custom and usage in the construction trade regarding such guarantees. Paragraph 4 of count I of DiVito’s complaint, incorporated by reference into count II, alleged:

“During the week of February 7, 1983, while DiVito was preparing its bid for the Palatine Project, Vollmar contacted DiVito and offered to supply to DiVito various materials for the Palatine Project. In particular, Vollmar agreed that, if DiVito was awarded the Palatine Project, Vollmar would sell to DiVito certain truss pipe, plastic pipe, fittings, and appurtenances at the prices set forth on Exhibit A hereto, and that such prices would be ‘good until 12-31-85.’ (See Exhibit A, p. 7).”

Vollmar answered: “Defendant admits the allegations of paragraph 4. Vollmar’s proposal was in accord with custom and usage in the trade.”

Vollmar argues that this admission is irrelevant, because it was not reasonable for DiVito to rely upon a guarantee unsupported by consideration. Consideration is not an element of promissory estoppel (see Bank of Marion v. Robert “Chick” Fritz, Inc. (1974), 57 Ill. 2d 120, 124, 311 N.E.2d 138, 140), and Vollmar does not contend to the contrary. However, to hold that consideration is decisive in determining whether reasonable reliance is present would, in effect, make consideration an element of promissory estoppel in construction cases. We are unwilling to go so far, absent clearer evidence of construction industry practices. If Vollmar is wrong about custom and usage, our acceptance of its argument could have serious consequences for the industry.

After raising the issue of custom and usage in its answer, Vollmar was bound to show that DiVito’s reliance on the price guarantee was unreasonable, given such custom and usage, if it wished to prevail upon a motion for summary judgment. Yet there is coilflicting testimony in the record on this issue. Armco’s sales representative, Richard Rogers, testified in his deposition that under prevailing custom in the construction industry, a contractor cannot rely on a quoted price after an order has been delayed 60 to 90 days, even if the price was guaranteed. But Joe Schulenburg, Vollmar’s president, testified in his deposition that the guarantee was included because Vollmar wanted to protect the job until it was complete. According to Schulenburg, DiVito did not request the December 31, 1985, date. This fact is confirmed by the deposition testimony of Benedetto DiVito, DiVito’s president. When construed against Vollmar, the testimony of Schulenburg and DiVito gives rise to an inference that it is reasonable to rely upon such guarantees in the construction trade.

Just as this conflicting testimony leads to the conclusion that the circuit court erred by entering summary judgment in Vollmar’s favor on count II (promissory estoppel), of DiVito’s complaint, it also leads to the conclusion that the circuit court did not err by refusing to enter summary judgment in DiVito’s favor on count II.

We conclude that the circuit court correctly granted summary judgment in Vollmar’s favor on count I of DiVito’s complaint, which purported to state a cause of action for breach of contract. To create an enforceable contract, there must be an unequivocal acceptance. (Lee Shell Co. v. Model Food Center, Inc. (1969), 111 Ill. App. 2d 235, 244, 250 N.E.2d 666, 671.) There can be no contract where the offeror cannot reasonably treat the offeree’s response as an acceptance. McCarthy v. Verson Allsteel Press Co. (1980), 89 Ill. App. 3d 498, 510, 411 N.E.2d 936, 944-45.

At his discovery deposition, Benedetto DiVito also testified that he told Vollmar’s dispatcher, Michael Anton, that the prices submitted by Vollmar were the “low numbers” and that DiVito was “going to use your number” in the bid. These statements fall short of an unequivocal acceptance, and it would have been unreasonable for Vollmar to treat them as such. The circuit court rightly observed that Vollmar could not have enforced an oral contract against DiVito on the basis of these statements alone.

DiVito relies upon the cases of Illinois Valley Asphalt, Inc. v. J.F. Edwards Construction Co. (1980), 90 Ill. App. 3d 768, 413 N.E.2d 209, and A.J. Davinroy Plumbing & Heating v. Finis P. Ernest, Inc. (1980), 87 Ill. App. 3d 1047, 409 N.E.2d 372, to support its contention that the circuit court erred in granting Vollmar’s motion for summary judgment on count I (although it is noteworthy that DiVito did not press this claim in its reply brief or at oral argument). But these cases are distinguishable. In Illinois Valley, the plaintiff proceeded upon a theory of promissory estoppel, not a contract theory. And, the testimony in that case (words to the effect that if the plaintiff got the job, then the defendant would get the job) was less equivocal than the testimony in this case. In Davinroy, the testimony which led the trial court to conclude that an oral contract had been entered into is not set forth in the opinion.

In conclusion, we remand this case to the circuit court for trial on DiVito’s promissory estoppel claim, as set forth in count II of its complaint, and the issue of whether it was reasonable for DiVito to rely upon Vollmar’s price guarantee, given the custom and usage in the construction trade. The judgment of the circuit court is affirmed in all other respects.

Affirmed in part; reversed in part and remanded.

MURRAY, P.J., and PINCHAM, J., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDA MONTGOMERY, Defendant-Appellant.
    First District (2nd Division)
    No. 86—2007
    Opinion filed February 7, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (Julie A. Hull and Donald Honchell, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Kenneth T. McCurry, Kim Novi, and Jerry D. Bischoff, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Following a bench trial, defendant was convicted of mob action and sentenced to one year’s conditional discharge, $100 fine and $30 in court costs. She appeals, arguing that her conduct is not punishable by the mob action statute.

At trial, the State presented two witnesses. Chicago police officer Dennis Palasz testified that on April 27, 1986, as he and his partner were driving an unmarked car west on Armitage Avenue, they were flagged down by a man standing at the corner of Armitage and Milwaukee Avenues near a White Castle restaurant. The man, Mr. Toledo, informed Officer Palasz and his partner that he had been in a fight with Daniel Pacheco. As another patrol car arrived, Toledo began hyperventilating and the recently arrived officers went to his assistance, while Palasz placed Pacheco under arrest, handcuffed him and placed him in the patrol car. Meanwhile, approximately 20 to 25 people had gathered, prompting Palasz to call for an assistance car. He radioed the dispatcher and reported “there is nothing wrong,” although he heard a woman screaming “fucking police, you fucking assholes, you’re a bunch of drunks, what the fuck are you doing, you fucking junkies.” At trial, Palasz identified defendant as the person shouting these epithets. As Palasz turned toward the restaurant he saw Lieutenant Kijowski and defendant screaming at each other, after which defendant struck Kijowski on the chest with her hand. Palasz went to assist Kijowski, who directed him to place defendant under arrest. He testified that he did not see defendant’s companion, Gail Scanlon, do anything, nor did he hear her say anything. On cross-examination, Palasz stated that the crowd was merely watching what was going on and that “nobody walked toward us.” He also acknowledged that he did not include in his police report the fact that defendant had struck Kijowski.

Kijowski testified that as he approached Toledo in order to calm him down, defendant and Scanlon ran out of the White Castle shouting “in essence *** that all policemen are junkies, drunks and all policemen are no fucking good and they beat up people, and don’t let him/them take that man away.” Approximately 15 to 20 people exited the restaurant and joined defendant in shouting at the police. Kijowski testified that he approached defendant and said “[G]o back in the restaurant, you don’t know what’s happening.” Defendant refused to leave, and when Toledo’s mother began screaming in Spanish, Kijowski told defendant “to cease *** making statements” to Ms. Toledo. Defendant responded “[F]uck you, I ain’t doing nothing, I have freedom of speech, I can do what I want.” When Kijowski threatened to arrest defendant “if she didn’t shut up,” defendant “smacked” him in the chest. Defendant was thereupon arrested. Kijowski claimed that defendant interfered with his investigation and arrests, as well as his efforts to clear a back up of approximately 50 to 60 cars on the street.

The trial court denied defendant’s motion to dismiss, made at the close of the State’s case, in support of which she argued that the State had not proved that she interfered with an arrest or that she had the requisite intent for the offense of mob action. In ruling, the trial court stated that “arrest means manual capture and transportation.” Defendant then testified as follows: while waiting for their food in the White Castle, Gail Scanlon saw the police beating a man. Defendant told Scanlon that this was police business and not to get involved. After getting their food, defendant and Scanlon walked to their car and, defendant testified, she was not watching the police nor did she observe a crowd. When defendant got out of the car to throw away her trash, she saw the police forcing Toledo’s head down “on the car” and she heard a woman, later identified as Toledo’s mother, screaming in Spanish. At this point defendant said, in a louder than normal speaking voice, “[T]he police were wrong, that's police brutality.” As she turned to return to her car, Kijowski ran up behind her, grabbed her hair, pulled her backwards and called her “a fucking nigger bitch.” She was then arrested and brought to the police station. While there she accused Kijowski of being drunk and she told Palasz that Kijowski “must be having family problems because he’s drunk,” to which Palasz responded “[Y]es, he is.”

Gail Scanlon also testified that she made the observation to defendant that the police should not beat Toledo, and that defendant answered “that she didn’t care if they beat him up or nothing because she didn’t particularly care for Mexicans and she liked policemen.”

Defendant was charged as follows:

“[Defendant] committed the offense of mob action in that she did interfere with the arrest of another by shouting accusations and threats at Police Officers, and did actively encourage others near her to participate in this interference, causing a large group of persons to assemble around the Officers and hinder their lawful efforts. Ms. Montgomery did also refuse to withdraw from this action upon the lawful command of the complainant, a Lieutenant of the Chicago Police Department.”

In finding defendant guilty the trial court stated:

“[I]t all comes down to basically whether or not I believe the police officers] or whether or not I don’t believe the police officers; and whether or not I believe the defendant and her witness, and I don’t.
The record will reflect the fact that the Court is quite satisfied with the testimony of the police officers. There will be a finding of guilty and a judgment on the finding. I do not believe *** the defendant and her witness.”

Opinion

The mob action statute provides in part as follows:

“Mob action consists of *** (2) [t]he assembly of 2 or more persons to do an unlawful act.” Ill. Rev. Stat. 1985, ch. 38, par. 25 — 1(a)(2).

At trial, defendant argued that the complaint brought against her was deficient because there was no allegation that she had the requisite mental state for the offense of mob action. She also argued that the State failed to prove that she acted with the necessary mental state. On appeal, she abandoned her argument regarding the complaint, but contended that in order to convict her under the statute, the State had to demonstrate beyond a reasonable doubt that she assembled with another in front of the restaurant to knowingly, intentionally or recklessly interfere with an arrest and that she encouraged others to do so as well, and that it failed to do so.

A person cannot be guilty “ ‘of the conduct proscribed by the Mob Action statute unless he intentionally, knowingly, or recklessly engages in such conduct.’ ” (People v. Leach (1972), 3 Ill. App. 3d 389, 393, 279 N.E.2d 450, quoting Landry v. Daley (N.D. Ill. 1968), 280 E Supp. 938, 957, rev’d on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758.) Defendant’s mental state can be inferred from competent circumstantial evidence. People v. Warship (1974), 59 Ill. 2d 125, 319 N.E.2d 507; People v. Zahner (1979), 77 Ill. App. 3d 706, 396 N.E.2d 593.

As the State correctly contends, the judge, who was the trier of fact in this case, could reasonably have concluded that a crowd formed in response to defendant’s shouting and joined her in yelling, “[DJon’t let him/them take that man away.” He could further have inferred that defendant intended, or at least knew that her exhortation to the crowd was likely to result in the interference of an arrest.

Defendant argues that both Pacheco and Toledo were already arrested at the time she allegedly began shouting, and therefore she could not have interfered with their arrest. An arrest involves three elements: (1) authority to arrest; (2) assertion of that authority with intent to effect an arrest; and (3) restraint of the person to be arrested. (People v. Howlett (1971), 1 Ill. App. 3d 906, 909-10, 274 N.E.2d 885.) In determining whether an arrest has taken place, the test is whether a reasonable man, under the same circumstances, would have thought he was arrested. (Howlett, 1 Ill. App. 3d at 910.) Here, although Officer Palasz said that both Toledo and Pacheco were under arrest before defendant began screaming, Lieutenant Kijowski testified that the police were attempting to aid Toledo when defendant began shouting and that she interfered with their investigation and arrests, because they had to keep their eye on her and the crowd as well as the traffic jam in the street. Kijowski acknowledged that Toledo was eventually transported to the police station, where he was given first aid by the fire department.

Defendant was not charged with preventing an arrest, merely interfering with one; therefore, the fact that both Pacheco and Toledo were ultimately arrested does not vitiate a necessary element of defendant’s crime. The trial judge heard testimony describing the circumstances surrounding the incident, and could reasonably have found that the police had not yet arrested Toledo when defendant began shouting, and that the disturbance she caused did result in interference with this arrest.

Defendant also argues that the trial judge incorrectly interpreted the mob action statute to apply to speech, rather than conduct, and thus unconstitutionally infringed upon her first amendment right to speech. Defendant does not contend that the mob action statute is unconstitutionally overbroad, as was held in Landry v. Daley (N.D. Ill. 1968), 280 F. Supp. 938, rev’d on other grounds sub nom. Boyle v. Landry (1971), 401 U.S. 77, 27 L. Ed. 2d 696, 91 S. Ct. 758, only that it is unconstitutional as applied in her case. Here, defendant shouted, “[Djon’t let him/them take that man away,” thus exhorting the crowd to immediate action. She was not punished for her criticism of the police, but for her unlawful incitement of the crowd to do an unlawful act.

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

Affirmed.

EGAN, P.J., and HARTMAN, J., concur.


text:
    HERITAGE HOUSE OF GLAMOUR, INC., Plaintiff-Appellant, v. THE ATTORNEY GENERAL OF THE STATE OF ILLINOIS, Defendant-Appellee.
    First District (2nd Division)
    No. 88—824
    Opinion filed February 7, 1989.
    Cohen, Weisenburger & Challos, of Chicago (Martin J. Weisenburger, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Respicio F. Vazquez, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff brought this action seeking declaratory and injunctive relief from an administrative subpoena duces tecum issued by the defendant. The trial court granted summary judgment in favor of defendant and dismissed plaintiffs complaint with prejudice. Plaintiff appeals, raising the following issues: (1) whether the subpoena duces tecum is overly broad; and (2) whether the trial court erred in granting summary judgment in favor of defendant.

On September 30, 1987, defendant issued an administrative subpoena, pursuant to section 3 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1987, ch. 121V2, par. 263) to Lakeview Trust and Savings Bank (Lakeview) for its records concerning home improvement loans wherein Premier Heating and Air Conditioning, Inc., was the contractor, and any agreements between the bank and Premier regarding home improvement loans. In response, the bank informed defendant that it had no association with Premier but that it was in possession of loans purchased from plaintiff. (There is no explanation in the record as to why Lakeview responded to a subpoena for records on Premier with information on plaintiff.) Meanwhile, plaintiff filed a complaint for declaratory judgment as well as a motion to quash the subpoena. After hearing the motion to quash, the trial court gave leave to defendant to file an administrative subpoena seeking the “records” of plaintiff and plaintiff was given leave to file a motion to quash when that subpoena was issued.

On December 15, 1987, defendant issued an administrative subpoena duces tecum to Lakeview commanding production of the following:

“All documents and papers concerning Home Improvement Loans purchased by Lake[v]iew Trust and Savings Bank from Heritage House of Glamour, Inc. from January 1, 1983 to present.”

On December 30, 1987, the trial court denied plaintiff’s amended motion to quash the subpoena and granted it leave to file an amended complaint. Pursuant to this order, plaintiff filed its amended complaint for declaratory and injunctive relief, requesting that the subpoena be declared null and void and that defendant be enjoined from enforcing the subpoena and from issuing any further subpoenas without leave of court. On February 2, 1988, this court denied plaintiff’s application for leave to appeal the December 30 order pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308).

On March 1, 1988, the trial court granted defendant’s motion for summary judgment and dismissed plaintiff’s complaint with prejudice. Plaintiff appeals from that order.

Opinion

Plaintiff argues that the subpoena is overly broad, as it fails to give a “reasonably informative description” of the items sought. (People ex rel. Legislative Commission on Low Income Housing v. Keefe (1967), 36 Ill. 2d 460, 465, 223 N.E.2d 144.) It maintains that defendant should specify by name what records it wants.

In Keefe, the Illinois Attorney General issued a subpoena requesting “various documents relating to described and undescribed properties which ‘have public aid recipients’ therein.” (36 Ill. 2d at 465.) The court held that the subpoena was “so lacking in specificity and so unreasonably broad as to violate constitutional standards,” stating:

“The phrase ‘public aid recipient’ is, of itself, susceptible of numerous interpretations. It might be, as suggested by the State, limited to aid supplied by the State of Illinois, but it could include Federally-sponsored assistance or that supplied by a governmental agency smaller than the State. The demand is not limited to those properties in which defendants know public aid recipients to be present, and it is not apparent whether properties having therein public aid recipients other than lessees are included. Nor is the demand restricted to properties located within this State, and it is entirely possible that among the properties owned, managed or controlled by defendants there may be some in other States.” (36 111. 2d at 465-66.)

Plaintiff contends that there is nothing in the subpoena which forms the subject matter of this action which limits the inquiry to home improvement loans to Illinois residents and that therefore the subpoena is unclear, vague and overbroad.

Defendant responds that the purpose of its investigation is to uncover matters previously unknown to it which may or may not provide grounds for further action, and that since it cannot not know in advance what its investigation may produce, it can be required to provide only a “reasonably informative description” of what is required. (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 298, 430 N.E.2d 1012.) Defendant further contends that its subpoena did provide such a description.

In Scott, the Association challenged sections 3 and 4 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 121V2, pars. 263, 264), which authorize the Attorney General to investigate upon his belief that it is in the public interest to do so and to issue subpoenas, arguing that they violate the fourth amendment’s prohibition on unreasonable searches and seizures. In upholding both sections the court stated:

“In testing the validity of an administrative subpoena, the appropriate considerations are: (1) the constitutionality of the statute, (2) whether the contemplated agency proceedings are included within the statutory authority, (3) the reasonableness of the demand, and (4) the relevance of the information sought. ***
The permissible scope of an administrative subpoena, and of any administrative demand for information or the production of documents, is measured by the relevance of the information sought to the problem under investigation.” Scott, 88 111. 2d at 296-97.

Here, the subject matter requested is limited to home improvement loans between two specific parties for a definite period of time and the information sought is reasonably related to the determination of whether plaintiff is engaged in unfair or deceptive acts or practices. The trial court properly held that the subpoena is not overbroad.

Plaintiff also argues that the subpoena constitutes an impermissible constructive search. An administrative subpoena “may be so unreasonable in its demands, or so indefinite and general in its terms, as to go beyond the statutory purpose for which the inquiry was authorized and amount to a ‘constructive search’ ” (Scott, 88 111. 2d at 296); however, as discussed previously, the subpoena was not over-broad and therefore it does not amount to a constructive search.

Plaintiff next contends that the trial court erred in granting summary judgment in favor of defendant, arguing that there is a question of fact as to whether the officers of Lakeview understood what items were sought by the subpoena. It emphasizes that defendant’s motion was unverified and unsupported by an affidavit. In granting defendant’s summary judgment motion, the trial court stated that the issue of the validity of the subpoena had already been decided and there was nothing more to resolve in a trial.

Defendant correctly argues that summary judgment is proper when the issue “is determinable solely as a matter of law” (Smith v. Rengel (1981), 97 Ill. App. 3d 204, 205, 442 N.E.2d 1146) and that no supporting affidavits are required. (Smith v. Ashley (1975), 29 Ill. App. 3d 932, 332 N.E.2d 32.) Here, the only issue to be decided was one of law: the validity of the subpoena. There was no factual issue to be resolved at trial, and therefore the trial judge properly granted summary judgment in favor of defendant.

We note that defendant did not raise, either in the trial court or on appeal, the issue of plaintiff’s standing to challenge a subpoena issued to the bank; therefore, there is no need to address this issue.

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

Affirmed.

HARTMAN and BILANDIC, JJ., concur.


text:
    RONALD ZIELINSKI, Plaintiff-Appellant, v. A. EPSTEIN & SONS INTERNATIONAL, INC., et al., Defendants-Appellees.
    First District (2nd Division)
    No. 88—1159
    Opinion filed February 7, 1989.

      Andrew D. Werth, of Susan E. Loggans & Associates, of Chicago, for appellant.
    Clinton J. Feil, of Kiesler & Berman, of Chicago, for appellee Chell and Anderson, Inc.
    Mark C. Friedlander, of Neal, Gerber, Eisenberg & Lurie, of Chicago, for appellee A. Epstein & Sons International, Inc.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff seeks recovery of damages for injuries sustained when he fell through an access door in the suspended ceiling of a room at a manufacturing plant owned by his employer, the Jewel Food Company (Jewel). Defendants on appeal are A. Epstein & Sons International, Inc. (Epstein), and Chell and Anderson, Inc. (Chell), the architect and the general contractor, respectively, of the structure in which plaintiff was working. The trial court granted the defendants’ motion for summary judgment on the ground that plaintiff’s action was time barred by the applicable statute of limitations (Ill. Rev. Stat. 1983, ch. 110, par. 13—214(b)), inasmuch as the ceiling and access doors were installed more than 12 years prior to plaintiff’s accident. The issue here is whether summary judgment lies where a dispute exists between the parties as to when the statute of repose begins to run.

On December 5, 1983, plaintiff was severely injured as he worked on Jewel’s refrigeration systems at its Hillfarm Dairy plant in Melrose Park, Illinois, where he was working as a refrigeration maintenance specialist. Plaintiff had entered the ceiling above the refrigeration units through an access panel located immediately above a permanent ladder attached to the wall. After he had repaired a valve located above the refrigeration units, he walked back to the access panel from which he had entered the ceiling. As he made his way back to that panel, he stepped on a second one, which swung open, causing plaintiff to fall approximately 20 feet to the floor below.

All work on the project was completed during the week ending June 11, 1971, and the building inspector of Franklin Park granted Jewel an occupancy permit on August 9, 1971. According to Epstein’s records, as of December 1971 the only item not completed on the project was entitled “Approve final payout, job closed.”

On November 8, 1984, plaintiff filed his complaint against Epstein and Chell, and on May 1, 1987, Epstein filed a motion for summary judgment, in which Chell joined. With its motion Epstein submitted the deposition testimony of Edward A. Whalen of the subcontracting firm of Dewey and Whalen, in which he stated that all work performed by his firm was completed by December 5, 1971; Jewel’s answers to interrogatories, and its response to Epstein’s request to admit, including a letter regarding the occupancy permit issued to Jewel by the Village of Franklin Park on August 9, 1971. The trial judge granted the defendants summary judgment and later denied the plaintiff’s motion for reconsideration, from which he now appeals.

The applicable statute of limitations is contained in section 13 — 214(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 214(b)), the relevant portion of which provides:

“(b) No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement of real property after 12 years have elapsed from the time of such act or omission.”

Both plaintiff and defendants agree that the plaintiff’s accident occurred on December 5, 1983; thus, the critical date insofar as the statute of repose is concerned is December 5, 1971, 12 years prior to the date of the accident.

Plaintiff advances the thesis that the very last act associated with the construction of the ceiling was the final exchange of paperwork, which occurred on June 5, 1972, and that, therefore, the applicable statute of limitations would not commence to run until that date. Plaintiff adds that the statute of limitations does not begin to run when a contract is executed, but when it terminates, citing Hanover Shoe v. United Shoe Machinery Corp. (1968), 392 U.S. 481, 20 L. Ed. 2d 1231, 88 S. Ct. 2224; consequently, the contract for the construction project at the Hillfarm Dairy plant did not terminate until June 5, 1972. Plaintiff further adds that according to Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 176 N.E.2d 761, a tort action accrues when the last act creating liability occurs, which in the instant case would be the final closing of the contract, i.e., June 5,1972.

Plaintiff maintains that since defendants’ motion for summary judgment is not supported by affidavit, deposition, or other testimony as to when their duties under the contract were completed, summary judgment should have been denied. (Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239.) He also points out that the defendants admitted that they conducted activities after December 5, 1971, but sought to explain them as a mere exchange of paper work; thus, he asserts, these facts go to prove that the general contractor had a presence on the jobsite and maintained control over the project until its completion, which was after December 5, 1971; therefore, he is entitled to judgment. Finally, plaintiff posits that “[t]he continuation of a special relationship offering the possibility of correction of the injury may postpone [the critical] date further” (Cooper v. United States (7th Cir. 1971), 442 F.2d 908, 912); accordingly, since defendants were under a duty to correct any problems until the closing date, June 5, 1972, that should be the critical date.

Epstein argues that in its deposition, the subcontractor stated that the design and construction of the suspended ceiling was completed by May 10, 1971, well before the critical date of December 5, 1971. Therefore, Epstein reasons, any design or construction defect related to the suspended ceiling must have occurred earlier; hence, any claim regarding such a defect would be barred by the statute of repose. Epstein also refers to the occupancy permit issued for the building by the Village of Franklin Park on August 9, 1971, contending that this proves that the construction of the entire facility, including the suspended ceiling and the area around it, was completed prior to December 5, 1971.

In addition, it claims that certain documents contained in its file relied upon by plaintiff in his opposition to its motion for summary judgment fail to establish that the design or construction of the suspended ceiling occurred after December 5, 1971; on the contrary, it asserts, those documents clearly establish that the construction of the entire building had been completed by December 1971. For example, in one of the documents, the following note appears: “Only No. 86 left since December 1971.” Item No. 86 is the only item without a check mark beside it to indicate that it had been completed; rather, it reads: “Approve final payout — job closed.” Furthermore, Epstein avers, at the bottom of page 3 of the documents is a list of every date on which it visited the construction site, the last of which is November 11, 1971. Epstein admits that pages 4 and 5 of the documents indicate that some activity occurred through April of 1972; however, the descriptions of these items clearly show that they involved paperwork only, and not actual construction. Every item after December 5, 1971, refers either to “closing out the job” or to obtaining guarantees from the appropriate contractors or material suppliers. Epstein argues that both of these items are clerical.

Lastly, Epstein urges that the statute of repose begins to toll when the allegedly wrongful act is committed, not when unrelated construction is finally completed, and that the statute does not make any reference to the “project” in its entirety. Rather, Epstein maintains, the statute focuses on the precise act or omission which gives rise to liability. Epstein contends that to adopt the plaintiffs position would strip the statute of all vitality by creating a never-ending liability, since presumably, plaintiff would claim that a party has an unremitting duty to rectify past negligent acts.

Chell argues that when the statute of repose is applied to the facts in this case, the trial court must be held to have decided correctly that the “act or omission” referred to therein was the work completed by the subcontractor who left the job more than 12 years before plaintiffs accident. Chell maintains that it is a basic rule of statutory construction that the language of a statute must be given its plain and ordinary meaning, and that courts should first look to the statutory language itself for such an interpretation. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 485 N.E.2d 1076.) Chell adds that once the construction of the improvement has been terminated, the 12-year statute of repose begins to run; that there is nothing in the act to suggest that other dates, unrelated to the actual building of the structure, should be considered; and that since there is no genuine issue as to the completion of that installation more than 12 years before plaintiffs injury, the trial court properly granted summary judgment.

Chell cites the well-established principle that statutes are construed to determine and give effect to the intent of the legislature, and that courts do not seek an interpretation which would render any portion of an act meaningless or void. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374.) It contends that plaintiff’s interpretation fails to give effect to the intent of the statute that claims be barred if they arise more than 12 years after the “act or omission” referred to therein; moreover, under plaintiff’s interpretation of the act, the 12 years would be difficult to determine at best, and impossible to determine at worst.

Chell poses several hypothetical cases to illustrate the error it alleges to be inherent in plaintiff’s argument. For instance, Chell notes that the time of completion of construction of a particularly large project involving several buildings would be arbitrarily extended until the last payment for the last building was made, even if construction at the locus of plaintiff’s injury had been completed many years earlier. Or, if an owner failed to make payment because of his personal financial situation, this, too, would arbitrarily extend the time of commencement of the 12-year statutory period and create liability in perpetuity. Such a contract, it charges, would never be final or completely closed.

We hold that the trial court properly granted the defendants’ motion for summary judgment. Plaintiff’s entreaty that the statute of limitations did not begin to run until the last act associated with the construction of the ceiling was completed is unconvincing, and his citing of Hanover Shoe v. United Shoe Machinery Corp. (1979), 392 U.S. 481, 502 n.15, 20 L. Ed. 2d 1231, 1246 n.15, 88 S. Ct. 2224, 2236 n.15, for the proposition that the statute of limitations begins to run when a contract terminates is incongruent with a reading of that case. First, Hanover was an antitrust case and is distinguishable on its facts alone. Second, plaintiff’s understanding that footnote 15 of Hanover holds that a statute of limitations does not begin to run until a contract is terminated is also palpably in error. Footnote 15 states:

“We are not dealing with a violation which, if it occurs at all, must occur within some specific and limited time span. [Citation.] Rather, we are dealing with conduct which constituted a continuing violation of the Sherman Act and which inflicted continuing and accumulating harm on Hanover. Hanover, 392 U.S. at 502 n.15, 20 L. Ed. 2d at 1246 n.15, 88 S. Ct. at 2236 n.15.

In addition, plaintiff mistakenly relies on Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill. 2d 432, 176 N.E.2d 761, as authority for his argument that a tort action accrues when the last act creating liability occurs. The Gray court’s decision involved determination of whether a tortious act was committed in a particular State for the purpose of deciding whether the tortfeasor was subject to that State’s jurisdiction. The court held, Thus, since Gray is clearly unrelated to the time of commencement of a statute of limitations, it cannot be relied upon by the plaintiff for any purpose in the instant case.

“[T]he place of a wrong is where the last event takes place which is necessary to render the actor liable.” (Gray, 22 Ill. 2d at 435.)

For his contention that the defendants’ motion for summary judgment was not substantively documented, as indicated above, plaintiff cites Cato v. Thompson (1980), 83 Ill. App. 3d 321, 403 N.E.2d 1239. But Cato holds that the motion for summary judgment there was not adequately supported because it relied on unsworn and unsigned statements. The defendants in the case at bar, however, relied on deposition testimony, as well as answers to interrogatories, evidence which is hardly unsworn and unsigned. Nor can it be successfully contended that such supporting documents were lacking in substance.

The plaintiff argues that he proved that the general contractor had a presence on the jobsite and maintained control over the project until its closing date, June 5, 1972; hence, he was entitled to judgment. On the contrary, the only thing that plaintiff succeeded in proving was that the project was not closed out before December 5, 1971. Plaintiff puts forth no evidence whatsoever showing that the general contractor or the subcontractor was not finished with construction by December 5, 1971. Indeed, the defendants conclusively establish that construction was complete by the critical date and that only paper work remained after that date.

Plaintiff’s final argument is that the defendants were under a duty to correct any problems up to the closing date, and that this postponed the critical date further, citing Cooper v. United States (7th Cir. 1971), 442 F.2d 908. However, the Cooper court was discussing a Federal statute, 28 U.S.C. 2401(b) and said, “But the existence of even a continuing relationship does not insure that a cause of action should be deemed continuous for purposes of computing the limitations period.” 442 F.2d at 912.

We find that the defendants’ arguments are completely tenable. It is indisputable that work had ended on the ceiling before the critical date of December 5, 1971, and since no genuine issue of material fact exists in this case, the defendants were entitled as a matter of law to summary judgment.

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

Affirmed.

HARTMAN and BILANDIC, JJ., concur.

       Although plaintiff’s complaint gives the Village of Melrose Park as the site of the Jewel plant, the occupancy permit appears to have been issued by the Village of Franklin Park.