text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN SPIRES, Defendant-Appellant.
    First District (3rd Division)
    No. 1—85—3295
    Opinion filed April 12, 1989.

      John Spires, of Menard, appellant pro se.

    Richard M. Daley, State’s Attorney, of Chicago (Thomas V. Gainer, Jr., Rimas F. Cernius, and Jeanne A. Morrow, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RIZZI

delivered the opinion of the court:

Defendant, John Spires, was convicted of the rape of four different victims and of violation of his bail bond. Defendant was found guilty but mentally ill and sentenced to 60 years on each individual rape, consecutively, and six years on the bail bond violation, concurrently. On appeal, defendant argues that (1) the statutes concerning the burden of proof of insanity and guilty but mentally ill were improperly applied in this case, thereby violating the ex post facto clauses of the State and Federal Constitutions (Ill. Const. 1970, art. I, §16, and U.S. Const., art. I, §9, respectively); (2) he was not proven guilty beyond a reasonable doubt to be legally sane; (3) he was denied effective assistance of counsel at trial; and (4) the trial court improperly imposed consecutive sentences on each of the four independent convictions of rape. We affirm.

Defendant was charged by four different indictments for offenses against four different female children. Defendant was charged with rape, aggravated kidnapping, indecent liberties with a child, armed violence and unlawful restraint of S.B.; the rape, aggravated kidnapping, indecent liberties with a child, unlawful restraint and kidnapping of D.R.; the rape, indecent liberties with a child and unlawful restraint of L.R; and the rape, armed violence, unlawful restraint and attempted deviate sexual assault of G.P. Defendant was also charged with burglarizing the home of C.M. and jumping bail on all of the foregoing charges.

At trial, three of the four victims testified. S.B. stated that on December 8, 1980, as she was walking home from school, she encountered defendant. S.B. was 12 years of age at the time. Defendant approached her and told her that he needed her help to rescue a cat that was trapped nearby. S.B. followed defendant as he led her into a basement. Defendant then displayed an object that S.B. thought was a weapon and told her that he would kill her if she did not cooperate. Defendant forced S.B. to remove her pants and underpants, lay on the basement floor and perform an act of sexual intercourse. When defendant departed, S.B. went to a friend’s home for help and informed her friend that she had been raped. S.B. was taken to the hospital by the police. Offered by way of stipulation was evidence that S.B. suffered an abrasion and that there was fresh blood in her vaginal opening. Approximately 3V2 months later, S.B. identified defendant in a lineup as the man who attacked and raped her.

D.R. testified that as she was walking to school on January 9, 1981, defendant drove up to her in a car, jumped out and grabbed her by the throat. D.R. was 14 years of age. Defendant forced her into the car and drove away to a secluded area. When defendant stopped the car, he told D.R. to take off her pants. When she refused, defendant punched her and threatened that she would be hurt if she did not comply. Defendant then proceeded to have sexual intercourse with D.R. Wflien he was done, he released her from the car on the condition that she not say anything to anyone. D.R. ran from the car to a gas station and called her parents. Offered by way of stipulation was evidence that D.R. suffered contusions, scratches, bruises and vaginal discharge. D.R. identified defendant from photographs on March 30, 1981. She further identified defendant in a lineup as the person who attacked her.

L.P. testified that she was selling candy for her grammar school on September 24, 1980. L.P. was 13 years of age. When she approached the home of a neighbor she knew, the door opened and someone told her to come inside. Assuming the voice was that of her neighbor, L.P. entered the home. When she did so, defendant grabbed her by the throat and threatened to kill her if she did not comply. Defendant had forcibly entered the home of this neighbor through a basement window. After defendant took L.P. downstairs and raped L.P., he told her to go back upstairs. L.P. called her mother and ran from the house. On July 31, 1984, L.P. viewed a lineup wherein she identified defendant as her attacker. Offered by way of stipulation was evidence that she had a cut lip, bruises and vaginal bleeding.

Finally it was stipulated that if G.P. were to testify, she would state that on September 5, 1980, she was 12 years of age. On that day as she was walking with two of her friends, defendant drove up and exited his car. Defendant grabbed G.P. and put a screwdriver to her neck. Defendant forced G.P. into his car, drove away and attempted to rape her. G.P. fought defendant so he drove to another location and this time was successful in raping G.P. Defendant also attempted anal intercourse. Finally, defendant released G.P. from the car and drove away. G.P. ran to a nearby home and sought help. It was stipulated that G.P.’s lip was cut and that she sustained bruises and vaginal bleeding. G.P. viewed photographs as well as lineup wherein she identified defendant as the man who attacked her.

When defendant was stopped on a traffic offense and the police officer noticed a resemblance between defendant and a composite sketch at the station, defendant was detained for questioning. When defendant failed to appear for his court date, a bond forfeiture warrant was issued. A warrant was also issued for defendant for the rape of D.R. Defendant was ultimately located and extradited from Memphis, Tennessee.

Dr. Andrew Pundy testified on behalf of defendant. He stated that he examined defendant once in January of 1981 and again in January of 1985. In his opinion, defendant was, in the short term, both able to understand the criminality of his behavior and to conform his conduct to the requirements of the law. However, in the long term, defendant would ultimately act on his behavior. Dr. Pundy believed that defendant was a threat in the present and would continue to be one in the foreseeable future. Defendant had interviews with Dr. Pundy wherein Dr. Pundy concluded that defendant knew the difference between right and wrong and between what is lawful and unlawful. Dr. Pundy further testified that defendant related incidents where he aborted rape attempts because he felt the police were around.

Dr. Gerson Kaplan of the psychiatric institute of the circuit court of Cook County testified in rebuttal for the State. Dr. Kaplan stated that he interviewed defendant and they talked about all four alleged cases of rape. In Dr. Kaplan’s opinion, there was a certain amount of purposeful planned behavior on defendant’s part. He further stated that defendant was able to appreciate the criminality of his conduct during all four alleged rapes and was further able to conform his conduct to the requirements of the law on each occasion. Dr. Kaplan stated that defendant does suffer from a mental disorder. However, that disorder does not impair his thought, mood or behavior to the extent where his judgment would be rendered impaired. Finally, Dr. Kaplan testified that he doubted if any form of treatment would decrease the obvious threat that defendant poses to society.

Following the close of evidence, the court found defendant guilty but mentally ill of the rapes of S.B., L.P., G.P. and D.R. He was also convicted of violation of bail bond. Defendant was sentenced to extended consecutive terms of 60 years for each rape and six years concurrently for violation of bail bond. This appeal followed.

Defendant first argues that the statutes concerning the burden of proof of insanity and guilty but mentally ill were improperly applied in his case. It is defendant’s position that the trial court erroneously applied the amended guilty but mentally ill statute to his case thereby violating the ex post facto clauses of the State and Federal Constitutions. We disagree.

For a law to be applied ex post facto, the statute in question must apply to events occurring before its enactment and it must furthermore disadvantage the defendant affected by it. (People v. DeWit (1984), 123 Ill. App. 3d 723, 733, 463 N.E.2d 742, 749.) For a defendant to be disadvantaged by a statute, it must punish as a crime an act which was previously lawful, increase the penalty for a particular crime or deprive one charged with a crime of a defense that was available under the law at the time the act was committed. People v. Smith (1984), 124 Ill. App. 3d 805, 808-09, 465 N.E.2d 101, 104.

Prior to January 1, 1984, the insanity statute at issue required only that a defendant introduce evidence of insanity. Once a defendant put the insanity defense at issue, the State then was required to prove a defendant’s sanity beyond a reasonable doubt. (Ill. Rev. Stat. 1983, ch. 38, par. 6 — 2(e).) However, the statute was amended and shifted the burden of proof to a defendant to prove by a preponderance of the evidence that he is not guilty by reason of insanity. Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(e).

In the instant case, although defendant’s trial was commenced after amendment of the insanity statute, his crimes were committed prior to the amendment. Contrary to defendant’s arguments, the record does not support a finding that the trial court applied the amended statute to his case and shifted the burden of proof to him, thereby increasing to his detriment his burden of proof with regard to his insanity.

The record evinces that the presentation of evidence with regard to defendant’s sanity proceeded under the old law, with defendant first raising the issue of insanity by the introduction of evidence to overcome the presumption of insanity and the State then presenting rebuttal testimony to prove that defendant was sane beyond a reasonable doubt. At no point in the record does the trial court indicate that it applied the standard of the amended statute and not that of the old statute.

The court found that the State had sustained its burden of proving defendant sane beyond a reasonable doubt as required under the law in effect at the time defendant’s offense were committed. Accordingly, we find that the court properly determined the issue of defendant’s sanity and that no ex post facto violation exists requiring reversal of the trial court’s decision. See People v. Snowden (1986), 147 Ill. App. 3d 763, 498 N.E.2d 612.

Defendant next argues that he was not proven guilty beyond a reasonable doubt to be legally sane. We disagree.

A person is not criminally responsible for his conduct if, at the time of such conduct, that person is incapable, because of a mental disease or defect, of appreciating the criminality of his conduct or is unable to conform his conduct to the requirements of the law. (Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(a).) A person who was not insane, but suffering from a mental illness when committing a criminal offense, is not relieved of criminal responsibility for the conduct. However, this person may be found guilty but mentally ill. Ill. Rev. Stat. 1985, ch. 38, par. 6 — 2(c).

The issue of a defendant’s sanity is a question of fact. Thus, the decision of the trier of fact regarding whether a defendant was sane at the time an offense occurred will not be disturbed on review absent clear evidence that the decision is so palpably erroneous as to suggest a basis of prejudice or passion. People v. Gindorf (1987), 159 Ill. App. 3d 647, 657, 512 N.E.2d 770, 776.

The law in effect when defendant’s offenses were committed required the State to prove that defendant was sane beyond a reasonable doubt when he committed the offense. We believe the record supports the trial court’s determination that defendant was in fact sane beyond a reasonable doubt.

Dr. Pundy, the defense’s expert witness, testified that defendant was able to understand the criminality of his behavior and that he was able to, in the immediate sense, conform his conduct to the requirement of the law. Dr. Pundy opined that although defendant was suffering from major depression, he did, in Pundy’s opinion, know the difference between right and wrong and between what is unlawful and lawful.

Dr. Kaplan testified that defendant described his behavior and involvement in each and every one of the four rapes. Kaplan stated that on “all four occasions I felt there was a certain amount of purposeful planned behavior.” Dr. Kaplan further stated that although defendant was suffering from a mental disorder, it was not of the magnitude to impair his thought, mood or behavior to a level where his judgment would be substantially impaired. Kaplan concluded that at the time of the offenses, it was his unequivocal opinion that defendant was able to conform to the requirements of the law and was able to appreciate the criminality of his conduct. Thus, the trial court’s finding is supported by the expert testimony.

Moreover, the trial court’s determination is amply supported by the circumstances surrounding the offenses. The court of events surrounding each case demonstrates a pattern of deliberate and controlled actions belying the defense of insanity. Defendant planned each attack on the four victims and threatened to hurt them or kill them in his attempt to obtain compliance. In fact, defendant told his doctor that he had, on occasions, aborted planned rapes because he felt that the police were near and that he would be discovered. Furthermore, when defendant was due to appear in court on April 22, 1981, he fled the jurisdiction to avoid prosecution. In fact, defendant stated that, “[Ajfter I got arrested on the case and made my bond I left the city.” As this court stated in People v. Snowden:

“[E]vidence of the ability to recall movements and words spoken, and evidence of an attempt to escape are all proper considerations in deciding whether a defendant could conform his conduct to the requirements of the law.” (Snowden, 147 Ill. App. 3d at 771, 498 N.E.2d at 618.)

Accordingly, we find that the evidence supports the trial court’s determination that the State proved beyond a reasonable doubt that defendant was sane.

Defendant next argues that he was denied effective assistance of counsel. It is defendant’s position that trial counsel erroneously allowed the State to stipulate to testimony of the four victims as well as other witnesses. Therefore, according to defendant, he is entitled to a new trial or in the alternative to have his conviction reversed. We disagree.

Representation by counsel is considered constitutionally deficient if the incompetence produced substantial prejudice to the defendant without which the result would probably have been different. (People v. Balfour (1986), 148 Ill. App. 3d 215, 227, 498 N.E.2d 547, 557; see Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Moreover, effective assistance of counsel refers to competent, not perfect, representation. Thus, the focus is on the totality of the circumstances rather than isolated instances during the representation. Balfour, 148 Ill. App. 3d at 227, 498 N.E.2d at 557.

In the instant case, defense counsel, as opposed to having all of the four victims testify in person, stipulated to the testimony of two of them. Following the close of the State’s case, defense counsel moved for a directed finding. When this motion was denied, defense counsel then stipulated to the testimony of other witnesses. Defense counsel thereafter presented Dr. Pundy to the court to introduce evidence of defendant’s defense of insanity. Under these circumstances, we cannot find that defendant was deprived of effective assistance of counsel. It is not our role, as reviewing court, to sit in judgment on the strategy a trial attorney chooses to employ. The record is devoid of any evidence that defendant was prejudiced by the actions of defense counsel or that the results of the trial would have differed if defense counsel had chosen a different strategy. Therefore, we find that defendant was not denied effective assistance of counsel.

Finally, defendant argues that the trial court erred in sentencing him to 240 consecutive years in prison. It is defendant’s position that the sentence violates the maximum aggregate of consecutive sentences authorized by section 5 — 8—4(c)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—4(c)(2)). However, the State argues that because defendant was charged under five separate indictments and convicted of four independent rapes of separate victims on separate occasions with each rape constituting a separate crime, the sentence is not violative of the statute.

The fundamental role of a court in construing a statute is to ascertain the intent of the legislature and effectuate it accordingly. To determine legislative intent, the court will examine the entire statutory provision and attempt to identify the statutory objective. (City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 341, 473 N.E.2d 1313, 1315.) Furthermore, the court must choose a construction which gives the statute a clear and logical meaning rather than a meaning which renders it absurd, illogical, useless or unreasonable. People v. Raseaitis (1984), 126 Ill. App. 3d 600, 604, 467 N.E.2d 1098, 1102.

Section 5 — 8—4 states in part:

“(a) *** The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively. ***
* * *
(c)(2) For sentences imposed under law in effect on or after February 1, 1978, the aggregate of consecutive sentences shall not exceed the sum of the maximum terms authorized under Section 5 — 8—2 for the 2 most serious felonies involved.” Ill. Rev. Stat. 1985, ch. 38, pars. 1005 — 8—4(a), (c)(2).

It is our belief that defendant’s reliance on section 5 — 8— 4(c)(2) is misplaced. Section 5 — 8—4(c)(2) contemplates a situation where a defendant is charged with multiple offenses arising out of the same course of conduct and is sentenced concurrently on each separate offense. We do not believe, as defendant urges, that the legislature intended this section to be applied to instances where a defendant has, as in the case at bar, raped four different young people at four different and distinct points in time. The practical effect of accepting defendant’s position would be to (1) give a defendant free reign to commit as many crimes as he desires with the knowledge that he is only subject to consecutive sentencing on two of those crimes and (2) lessen the protection of the public from persons who have been determined to be a serious threat to society because of their criminal conduct, thereby circumventing the purpose of consecutive sentencing. Such a conclusion is not supported by logic or statutory authority. Therefore, we hold that the trial court did not err in sentencing defendant to consecutive terms for the rapes of the four children.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and WHITE, JJ., concur.

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.


source: Caselaw Access Project

author: PRESIDING JUSTICE FREEMAN

license: Public Domain

text:
    LAKE COUNTY TRUST COMPANY, as Trustee, et al., Plaintiffs-Appellees, v. TWO BAR B, INC., a/k/a Two-Bar-B Ranch, Inc., et al., Defendants-Appellants (Jasper County Farm Bureau Co-op et al., Defendants).
    First District (3rd Division)
    No. 1—87—2590
    Opinion filed April 12, 1989.

      Thomas E. McClure and Paul F. Michel, both of Bourbonnais, for appellants.
    Howard E. Gilbert & Associates, of Chicago (Howard E. Gilbert and Michael D. Richman, of counsel), for appellees.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court:

This is an appeal from an action in interpleader and for declaratory judgment seeking a declaration of the rights and liabilities of the parties regarding proceeds resulting from a crop share lease agreement. Defendants appeal from orders of the trial court which dismissed their amended counterclaim and granted plaintiffs’ motion to strike defendants’ motion for rehearing.

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

On December 2, 1985, plaintiffs, Lake County Trust Company, as trustee under trust No. 3138 dated June 6, 1983 (Lake County Trust), and Holland Farms, Inc. (Holland Farms), _filed a complaint in the nature of an interpleader and for declaratory judgment. The complaint alleges that Lake County Trust is a land trust organized and existing under the laws of the State of Indiana and that Holland Farms is the beneficiary of the trust. On June 13, 1983, Lake County Trust, as the buyer, executed a contract with defendants, Two Bar B, Inc. (Two Bar B), and Maurice L. Blanchette, as sellers, for the sale and purchase of certain farmland located in Jasper County, Indiana. On July 6, 1983, Lake County Trust executed an installment note payable to the order of Two Bar B for the purchase of the land, and the note was secured by a mortgage to defendant City National Bank of Kankakee (Bank). On the same date, Lake County Trust executed an assignment of rents, naming the Bank as payee. On September 28, 1983, Holland Farms and defendants, the Koebcke Brothers, executed a crop share lease agreement pursuant to which Holland Farms agreed to lease the farmland to the Koebcke Brothers on a 50/50 crop share basis.

On September 16, 1985, the Bank notified plaintiffs that the July 6, 1983, installment note, executed by Lake County Trust, was in default. The Bank also advised the recipients of the crop share funds to turn over to the Bank all of the crop share monies from the crop share lease agreement. The complaint alleges that thereafter, defendant Cargill, Inc. (Cargill), and/or defendant Jasper County Farm Bureau Co-op delivered to Holland Farms checks totalling an amount which allegedly comprised the crop share amount due to Holland Farms under the crop share agreement with Koebcke Brothers. Each of the checks designated as payees “Jasper Farms, c/o Lake County Trust Co. & City National Bank of Kankakee.”

On January 14, 1986, several of the named defendants in the instant suit filed a mortgage foreclosure action in the Jasper superior court in the State of Indiana, naming Lake County Trust and Holland Farms as defendants. The Indiana action was based on the same installment note, mortgage instrument, and assignment of rents document as are the subject of the instant suit.

On September 24, 1986, plaintiffs in the instant case presented a motion to compel defendant Cargill to deposit the crop share checks and proceeds with the Cook County registry, pending the adjudication of the interpleader action. Cargill objected, asserting that the same funds were the subject of the Indiana proceeding. The trial court entered an order on October 1, 1986, granting plaintiffs’ motion and ordering Cargill to deposit all of the funds referred to in the complaint, totalling $47,120.45, with the clerk of the circuit court of Cook County. On December 8, 1986, the trial court granted plaintiffs’ motion to deposit to the same account an additional check arising out of the crop share lease proceeds, in the amount of $20,112.17.

On October 17, 1986, defendants filed an answer to the complaint, denying that plaintiffs are entitled to the relief sought. Also on that date, defendants filed a counterclaim, asserting their entitlement to all of the funds deposited with the clerk of court. The counterclaim alleges, among other things, that the installment note and assignment of rents executed by Lake County Trust on July 6, 1983, each named Twó Bar B as payee. Attached to the counterclaim is an agency agreement, purportedly indicating that Two Bar B had endorsed the note, payable to the order of the Bank of Kankakee, in consideration for which the Bank agreed to act as the agent of several of the individually named defendants in collecting and disbursing proceeds under the note. The counterclaim alleges that plaintiffs defaulted on the note on July 2, 1985. On September 16, 1985, Lake County Trust was notified of the default and of the exercise of rights under the assignment of rents.

On November 5, 1986, plaintiffs filed a motion to strike and dismiss the counterclaim, asserting that the Bank and its beneficiaries lacked standing to assert rights in and to the note and assignment of rents, since the note attached to the counterclaim was not endorsed by Two Bar B, or payable to the order of the Bank of Kankakee. Defendants then filed a motion to attach, as an additional exhibit, an endorsement of the note by Two Bar B, payable to the order of the Bank as agent for certain individual defendants. Plaintiffs replied that the endorsement was not valid, as it was not made on the note itself or on a separate piece of paper firmly affixed to the note, if there was no longer any space for the endorsement on the back of the note itself. The trial court granted plaintiffs’ motion to strike the counterclaim and allowed defendants 28 days in which to file an amended counterclaim.

On February 19, 1987, defendants filed an amended counterclaim. Attached to the amended counterclaim is a copy of the July 6, 1983, installment note, endorsed on the reverse side by Two Bar B payable to the order of the Bank of Kankakee as agent for the named individual defendants. Also attached is an affidavit of Robert Loitz, an agribusiness officer for the Bank, which states that the attachment to the counterclaim is a true and correct copy of the original note in the possession of the Bank, and that on the reverse side of the original document appears the endorsement language of Two Bar B, payable to the order of the Bank of Kankakee as agent for the named individual defendants.

On March 18, 1987, plaintiffs moved to strike and dismiss the amended counterclaim, asserting several grounds. First, defendants should have been barred under the judicial admissions doctrine from claiming that the installment note was properly endorsed by Two Bar B to the Bank of Kankakee, since defendants had introduced into evidence the same installment note, without the endorsement, in the action pending in Indiana. Second, only Two Bar B has standing to assert any rights under the assignment of rents, and Two Bar B has been disabled by its corporate dissolution from asserting any claims. Third, defendants are precluded from claiming any of the crop share monies, since the installment note and assignment of rents documents each provide for the “exclusive remedy” of foreclosure against the corpus of the land trust. Defendants were pursuing such a remedy in the Indiana proceeding.

On April 10, 1987, the trial court entered an order granting the motion of plaintiffs to dismiss the amended counterclaim with prejudice. The order includes a finding pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) that there is no just reason to delay enforcement or appeal. On May 4, 1987, defendants filed a motion pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203) for rehearing or to vacate the order of dismissal. On July 23, 1987, the trial court entered an order striking the motion for lack of jurisdiction, citing defendants’ failure to file a notice of appeal within 30 days of the April 10, 1987, order. The trial court also included in the order a Rule 304(a) finding that there is no just reason to delay enforcement of or appeal from the order.

Defendants filed a notice of appeal on August 17, 1987. On December 9, 1987, the appellate court granted plaintiffs’ motion to dismiss the appeal on the basis of the decision in Elg v. Whittington (1987) , 119 Ill. 2d 344, 518 N.E.2d 1232. Defendants filed a petition for rehearing, which the court denied on April 25, 1988. However, on May 24, 1988, the appellate court reversed itself by an order which vacated its earlier orders of December 7, 1987, and April 25, 1988. Plaintiffs filed a second motion to dismiss the appeal, on grounds not previously asserted. Plaintiffs’ second motion to dismiss was denied by the appellate court on August 3, 1988.

In the instant appeal, defendants initially assert that the trial court erred in granting plaintiffs’ motion to strike defendants’ motion for rehearing. Defendants contend that the filing of their motion for reconsideration on May 4, 1987, tolled the time for filing a notice of appeal.

Recently, the supreme court in Elg v. Whittington (1987), 119 Ill. 2d 344, 518 N.E.2d 1232, held that the filing of a timely post-trial motion will not toll the running of the 30-day period for filing a notice of appeal based upon a Rule 304(a) finding that there is no just reason to delay enforcement or appeal. That opinion was modified to make the decision prospective and applicable to cases in which the notice of appeal was filed or due to be filed on or after November 16, 1987. In the instant case, the amended counterclaim was dismissed with prejudice and a Rule 304(a) finding made by the trial court on April 10, 1987. Defendants’ motion to vacate was filed on May 4, 1987, within 30 days of entry of the court’s order granting the motion to dismiss. Thereafter, on July 23, 1987, the trial court granted plaintiff’s motion to strike defendants’ motion to vacate for lack of jurisdiction and included the Rule 304(a) language. Defendants’ notice of appeal was filed on August 17, 1987, within 30 days of entry of the granting of the motion to strike. Since Elg cannot be applied to the instant case, we hold that defendants’ notice of appeal was timely. (See Marathon Finance Co. v. Pioneer Bank & Trust Co. (1988), 168 Ill. App. 3d 148, 151, 522 N.E.2d 248; Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 525 N.E.2d 258; Lewis v. Royal Globe Insurance Co. (1988) , 170 Ill. App. 3d 516, 524 N.E.2d 1126; Cain v. Sukkar (1988), 167 Ill. App. 3d 941, 521 N.E.2d 1292.) We decline to follow the third district court’s opinion in Parrish v. Lee (1988), 167 Ill. App. 3d 443, 521 N.E.2d 1188, cited by plaintiffs. Since we have found that the cir-cult court had jurisdiction regarding defendants’ motion for reconsideration, we will address the remaining arguments raised on appeal.

Defendants also contend that the trial court erred in dismissing their amended counterclaim. First, the installment note and assignment of rents documents are ambiguous. The documents must be read together, defendants assert, since they were executed by the parties in the course of the same transaction. Further, both documents contain language which excludes personal liability by the trustee and also purports to limit the remedy of the holder of the note and assignment of rents to foreclosure. Defendants contend that the assignment of rents instrument, however, also contains language which states the intent of the parties that all rents derived from the premises be assigned to defendants. Further, the installment note contains language in a footnote that gives the holder of the note the right to the sum of $30,218.75 quarterly in addition to an assignment of rentals. Defendants contend that the language of each document allowing for an assignment of rents conflicts with the other language contained in each document creating an exclusive remedy in foreclosure.

Parties to a contract may limit their rights, duties, and obligations by express agreement. (Jackson v. First National Bank (1953), 415 Ill. 453, 114 N.E.2d 721; Structural Sales, Inc. v. Vavrus (1985), 132 Ill. App. 3d 718, 477 N.E.2d 745.) Parties may contract for an exclusive remedy which shall be binding upon them. (United States ex rel. Armco Drainage & Metal Products, Inc. v. Vander Heyden (S.D. Ill. 1958), 158 F. Supp. 930, 932.) However, the contract must clearly indicate that the parties intend that the stipulated remedy be the sole or exclusive remedy. Structural Sales, Inc., 132 Ill. App. 3d at 720.

In construing a contract, 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, 464 N.E.2d 292.) Where, however, contractual language is ambiguous or obscure in its meaning so that the contractual intentions of the parties cannot be understood from a mere inspection of the instrument, extrinsic evidence may be introduced to explain the actual meaning of the language used. Harlem-Irving Realty, Inc. v. Alesi (1981), 99 Ill. App. 3d 932, 425 N.E.2d 1354.

In the instant case, we find an ambiguity in the language of the two documents which form the agreement between the parties that cannot be reconciled from a mere reading of the documents themselves. The trial court pointed out the apparent conflict between the “exclusive remedy” language and the language allowing for a remedy under an assignment of rents. While noting the ambiguity, however, the court apparently failed to allow the parties to present extrinsic evidence regarding their intent as to the remedy provisions. The parties should have been allowed to present extrinsic evidence regarding this issue, and therefore, we find that the trial court improperly granted plaintiff’s motion to dismiss defendants’ amended counterclaim on the record before it.

Plaintiffs respond that even if the trial court is found to have erroneously construed the assignment of rents document as having an exclusive remedy clause, the amended counterclaim is barred by the rule that a mortgagor (here, Lake County Trust) is not required to account to the mortgagee (defendants here) for rents and profits while he remains in possession of the premises. Since plaintiffs failed to raise this argument in their motion to dismiss the counterclaim, however, they have waived it on appeal. Ill. Rev. Stat. 1987, ch. 110, par. 2 — 612(c)); Fourfouris v. Standard Oil Realty Corp. (1981), 100 Ill. App. 3d 162, 426 N.E.2d 915.

Defendants also contend that they have standing to assert rights under the installment note and assignment of rights. The right to an assignment of rents provided for in the installment note, defendants assert, became vested in the Bank of Kankakee as agent for certain individual defendants upon transfer of the note by Two Bar B. Defendants assert that the transfer by Two Bar B occurred prior to the time of the corporate dissolution of Two Bar B and therefore is valid.

Plaintiffs respond that only the installment note, and not the assignment of rents, was assigned to the Bank. Further, plaintiffs assert that defendants’ counterclaim was not timely filed. Plaintiffs cite the Missouri corporate survival statute, which sets forth a two-year limitations period within which a dissolved Missouri corporation may bring an action from the date of dissolution. (Mo. Rev. Stat. §351.565.) Plaintiffs assert that Two Bar B filed a certificate of dissolution with the Missouri Secretary of State’s office on November 17, 1983, and filed its original counterclaim on October 17, 1986, more than two years later.

Defendants reply that the five-year Illinois survival statute (Ill. Rev. Stat. 1987, ch. 32, par. 12.80) applies to the instant case. Even if the Illinois statute does not apply, defendants assert, their cause of action was properly brought since all rights and causes of action of a dissolved corporation pass to the shareholders. Defendants cite Shuts v. Chambers (1986), 142 Ill. App. 3d 948, 492 N.E.2d 528, in which the court held that the shareholders could maintain an action in their own capacities on a note naming the dissolved corporation as payee, even though suit was not initiated within the statutory survival period for actions by or against dissolved corporations. Defendants contend that their counterclaim named as counterplaintiffs not only Two Bar B but also former shareholders of the corporation (e.g., defendants, the Blankenbergs and Blanchettes), and therefore, their claim survives at least regarding the shareholders.

We agree with defendants that Shute governs the instant case. The court in Shute found that the survival statute (Ill. Rev. Stat. 1983, ch. 32, par. 157.94 (subsequently amended and recodified as Ill. Rev. Stat. 1987, ch. 32, par. 12.80)) did not apply to the plaintiffs’ action, which involved, not a suit against a dissolved corporation, but rather a debt incurred by the defendant pursuant to a purchase agreement and installment note. The court stated that as former shareholders, the plaintiffs were entitled to receive, by operation of law, assets resulting from the payment of debts of the dissolved corporation. The court stated that the plaintiffs’ right to sue on the debt incurred by the defendant was “in no way derivative of an injury to the former corporation.” (Shute, 142 Ill. App. 3d at 954.) The court distinguished cases involving actions by shareholders which were derivative in nature. In reaching its conclusion in Shute, the court reasoned that to allow the corporate survival statute to be applied to the type of claim presented by the plaintiffs “would result in barring former shareholders from enforcing rights to corporate assets at the same time they succeeded to ownership of the assets by operation of law.” Shute, 142 Ill. App. 3d at 954.

Further, the court in Shute cited Jenot v. White Mountain Acceptance Corp. (1984), 124 N.H. 701, 474 A.2d 1382, in which a New Hampshire court declined to apply a corporate survival statute to an action by a former shareholder to foreclose a mortgage given to the corporation and enforce a promissory note secured by the mortgage. The court in Jenot noted that the plaintiff, in his individual capacity, sought recovery of an asset he acquired by operation of equity principles. Further, the court noted that an assignment was not necessary to transfer corporate assets to shareholders. Jenot, 474 A.2d 1382.

In the instant case, defendants’ counterclaim seeks to enforce rights resulting from a note and assignment of rents which named Two Bar B as payee. The individual defendants, as shareholders of Two Bar B, may sue, by way of a counterclaim, for recovery on the default of the note and are not barred from so doing by the limitations periods set forth in the Illinois or Missouri corporate survival statutes. See Skute, 142 Ill. App. 3d at 952-54.

In any event, we find plaintiffs’ argument that the Missouri survival statute applies to the defendants’ counterclaim unpersuasive because we hold that the Illinois “borrowing” statute (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 210), which provides for the application of a statute of limitations of a foreign jurisdiction, does not apply to the instant casé. The statute provides:

“When a cause of action has arisen in a state or territory out of this State, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 210.)

However, as stated in Miller v. Lockett (1983), 98 Ill. 2d 478, 457 N.E.2d 14, the borrowing statute was intended to be applied when the parties are nonresidents of Illinois. Where Illinois residents are parties to the action, the borrowing statute has been held not to apply. (Coan v. Cessna Aircraft (1973), 53 Ill. 2d 526, 293 N.E.2d 588; Panchinsin v. Enterprise Cos. (1983), 117 Ill. App. 3d 441, 453 N.E.2d 797.) In the instant case, since the individual defendants/ counterplaintiffs are residents of Illinois, the borrowing statute does not apply to their action.

Further, we find that plaintiffs failed in their motion to dismiss to show that the assignment of rents was not assigned together with the note. Defendants responded that the note, which was assigned to the Bank, referenced the assignment of rents remedy, and therefore, the assignment of rents also was assigned. Defendants cite section 2 — 301 of the Uniform Commercial Code (Ill. Rev. Stat. 1987, ch. 26, par. 2 — 301). We find that plaintiffs’ contention was not sufficiently supported to sustain their motion to dismiss.

Plaintiffs also asserted in their motion to dismiss that the affidavit attached to defendants’ counterclaim was insufficient and that the judicial admissions doctrine barred defendants from introducing the installment note containing the purported endorsement of Two Bar B, since defendants first attached a copy of the note without an endorsement. Defendants respond that their amended counterclaim is sufficiently supported by the attached affidavit of Robert Loitz and copies of the note containing the endorsement of Two Bar B on the reverse side and by the agency agreement. Defendants contend that their initial failure to submit the reverse side of the installment note showing the endorsement of Two Bar B was not a judicial admission, since the initial representation, i.e., their submission of only the front side of the note, was not in clear contradiction to their subsequent representation, Le., attaching both the front and back sides of the note. The endorsement was contained on the reverse side of the note.

We agree with defendants that since the later submission of the reverse side of the installment note containing the endorsement was not in contradiction to the initial submission of only the front side of the document, the initial exhibit did not constitute a binding judicial admission regarding the reverse side of the note. (Russell v. Subbiah (1986), 149 Ill. App. 3d 268, 271-72, 500 N.E.2d 138, 141.) Further, we do not find an insufficiency in the affidavit attached to defendants’ amended counterclaim. See People v. Frieder (1980), 90 Ill. App. 3d 116, 121-22, 413 N.E.2d 432, 436-37.

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

Judgment reversed and cause remanded.

RIZZI and WHITE, JJ., concur.


text:
    WILLIAM LISSNER, Plaintiff-Appellant, v. MICHAEL REESE HOSPITAL AND MEDICAL CENTER, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—0071
    Opinion filed April 12, 1989.

      James P. Chapman & Associates, Ltd., of Chicago (James P. Chapman and Kathleen Hogan Morrison, of counsel), for appellant.
    Lord, Bissell & Brook, of Chicago (William P. Dorr, David C. Hall, and Hugh C. Griffin, of counsel), for appellee.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court;

Plaintiff, William Lissner, appeals from an order of the trial court granting the motion of defendant, Michael Reese Hospital and Medical Center (Michael Reese), to dismiss plaintiff’s first amended complaint as being barred by the four-year statute of repose set forth in section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212). Plaintiff’s action sounds in medical negligence arising out of defendant’s administering irradiation treatments to plaintiff in 1946. The complaint also alleges, among other things, that defendant negligently made false representations and omissions of material fact during a medical recall program of irradiated patients in 1978. As a result of the irradiation treatment, plaintiff developed thyroid cancer and parathyroid disease, which condition was discovered in 1982.

On appeal plaintiff contends that the trial court erred in dismissing the action as untimely as a matter of law, since the amended complaint sufficiently alleged facts to indicate that equitable estoppel should apply to preclude defendant from invoking the statute of repose. Plaintiff contends that the applicability of the equitable estoppel exception to the application of the statute of repose, at a minimum, raised a question of fact for the jury. Further, plaintiff contends that public policy considerations and the decision in Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665, require a trial in the instant matter.

For the reasons stated below, we affirm the judgment of the circuit court.

The record indicates that in July 1946, when plaintiff was three years old, the defendant hospital administered X-radiation treatments to his tonsils, thyroid, and parathyroid glands for treatment of a tonsil ailment. In 1973, the results of a University of Chicago study were published, indicating that “thyroid abnormalities” may develop in patients who had received such x-ray exposure, and that the abnormalities may develop two or more decades after exposure (Degroot & Paloyan, Thyroid Carcinoma & Radiation: A Chicago Endemic, 225 J. Am. Med. A. 487 (1973)). In 1974 Michael Reese began a “recall program” for adult patients who had received the X-ray treatments during the 1940’s and 1950’s.

On June 21, 1974, as part of its recall program, Michael Reese wrote a letter to plaintiff, indicating that he had received irradiation therapy in 1946. The letter states that “it is now well recognized that patients who received x-ray treatment to the head and neck regions during childhood have an increased risk of developing thyroid neoplasms, both benign and malignant.” The letter recommends examination of plaintiff’s thyroid glands. The letter also states that patients with “equivocal abnormalities” should be reexamined every six months, and that patients who “are apparently normal” should be examined “probably every year as they may develop nodules.” In response to the letter, plaintiff underwent a thyroid examination at Michael Reese in 1974. Defendant advised plaintiff that the examination showed plaintiff’s thyroid to be normal.

On March 22, 1978, Michael Reese again wrote to plaintiff, indicating a desire to reexamine him and other patients who previously were examined under the recall program. The letter was written by Dr. Arthur B. Schneider. The letter indicates that a blood sample of plaintiff was obtained in 1974. The letter states that Dr. Schneider and others “recently completed and analyzed *** measurements” of the plasma thyroglobulin level in the blood of patients. The results of the analysis indicated that the thyroglobulin level in plaintiff’s blood “was higher than that of most of the people we saw who had normal thyroid examinations. We also found that the majority of patients who had thyroid nodules also had high thyroglobulin levels.” The letter further states that “[a]t the present time it is not known with certainty how often a thyroid scan is necessary, but, through these examinations, we expect to find out.” Plaintiff underwent the additional examination and was told orally that his thyroid was normal.

Michael Reese sent another letter to plaintiff on June 27, 1978, indicating the results of defendant’s June 22, 1978 examination of plaintiff. The letter, written by Dr. Schneider, indicates that the examination failed to detect “any thyroid or salivary gland nodules or any other abnormalities.” In addition, the letter states, “At this point we are still uncertain as to how often, if ever, thyroid scans should be repeated in all irradiated patients. For patients who have had nodules, however, it is our opinion that periodic scintigraphy is clearly indicated.”

On June 16, 1982, plaintiff learned that he had a malignant papillary-follicular thyroid tumor and advanced parathyroid disease. Plaintiff learned of the condition in the course of surgery for an apparently unrelated condition at a hospital other than Michael Reese. On June 8, 1984, plaintiff filed the instant suit. In 1986, the supreme court handed down its decision in Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665, which held that the applicable four-year statute of repose (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212) barred that plaintiff’s action based on X-radiation therapy he had received as a child in 1949. In Mega, the plaintiff was notified by the defendant hospital in 1973 that there was a possible link between radiation therapy and thyroid cancer. The plaintiff was examined in 1973 and found to be normal. In 1981, the plaintiff first learned of malignant lumps in his thyroid.

The court in Mega held that the statute of repose required that an action arising out of X-ray therapy treatments must be brought within four years of September 19, 1976, the effective date of the statute, or be forever barred. (Mega, 111 Ill. 2d at 422, 434-35.) Mega also, however, provided for an exception to the application of the statute of repose as a bar to an action where equitable estoppel is shown. (Mega, 111 Ill. 2d at 424-25.) While the court in Mega indicated that such an exception would be available under appropriate circumstances, the court found that the equitable estoppel exception did not apply to the facts before it. Mega, 111 Ill. 2d at 424-25, 428-29.

After the Mega decision was issued, plaintiff in the instant case filed his amended complaint, asserting that equitable estoppel applies to preclude defendant from invoking the statute of repose as a bar to plaintiff’s action. Defendant filed a motion to dismiss the first amended complaint in lieu of an answer, asserting that equitable estoppel did not apply to plaintiff’s case. The trial court granted defendant’s motion. Plaintiff then filed a motion to vacate the dismissal order and for leave to file a second amended complaint, which alleged further facts in an attempt to establish equitable estoppel. The trial court denied plaintiff’s motion, and plaintiff appealed.

The statute of limitations applicable in Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665, is the same statute of limitations pertinent to the instant case. The statute provides in pertinent part:

“No action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death except as provided in Section 13 — 215 of this Act [regarding fraudulent concealment].” Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212.

The court in Mega, in holding that section 13 — 212 barred the plaintiff’s medical malpractice action as untimely filed, stated, “[w]e realize that our holding here means that plaintiff Mega’s action was barred before he learned of his injury. That is the effect of the four-year period of repose [Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212] ***.” Mega, 111 Ill. 2d at 422.

In the instant case, plaintiff contends that the equitable estoppel exception carved out in Mega applies to its action. Plaintiff asserts that the trial court erred in holding, as a matter of law, that since defendant notified plaintiff in 1974 and 1978 of the risks resulting from the X-radiation treatment, the Mega equitable estoppel exception does not apply to plaintiff’s cause of action. Plaintiff contends that Michael Reese created in plaintiff a “false sense of security” based on its oral and written statements, omissions, and conduct following plaintiff’s June 1978 examination. Plaintiff contends that defendant, through Dr. Schneider, told plaintiff orally and in its June 27, 1978, letter, that plaintiff was “completely normal” and that, “in essence,” plaintiff was not at risk of thyroid disease as a result of the irradiation of plaintiff in 1946. Further, plaintiff asserts that defendant’s statements, omissions, and conduct indicated to plaintiff that he need do nothing further as to treatment, follow-up, examination or otherwise.

Plaintiff also contends that policy considerations require the application of equitable estoppel to the instant case. Plaintiff contends that defendant had an ongoing obligation to examine and forewarn former patients of the ongoing risks they may suffer. Plaintiff contends that he would have filed suit immediately if he had been told by defendant that he has an increased risk of thyroid cancer and parathyroid disease as a result of the irradiation treatment. Plaintiff contends that “[b]y 1978 at the latest,” defendant had a duty to make those disclosures to plaintiff and failed to do so.

Both parties cite the decisions of the supreme court in the companion cases of Witherell v. Weimer (1981), 85 Ill. 2d 146, 421 N.E.2d 869 (Witherell I), and Witherell v. Weimer (1987), 118 Ill. 2d 321, 515 N.E.2d 68 (Witherell II), to support their positions. In Witherell, the plaintiff filed a personal injury action against two physicians and the manufacturer of birth control pills for negligence, strict product liability, and breach of warranty. The trial court granted the motions to dismiss of the defendants on the ground that the plaintiff’s action was not brought within the period allowed for under section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), now section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212). In Witherell I, the appellate court reversed and remanded the matter, holding that a question of fact existed regarding when the statutes of limitation began to run. The supreme court affirmed the decision of the appellate court as to the physicians. (Witherell, 85 Ill. 2d at 160.) Later, in Witherell II, the supreme court addressed issues raised on appeal after a trial of the matter in Witherell I.

More fully, the facts of Witherell are as follows. The plaintiff took birth control pills prescribed by Dr. J.I. Weimer, one of the defendant physicians, beginning in 1966. A short time later, the plaintiff began having severe pain and spasms in her leg. In March 1967, the plaintiff consulted Weimer about the condition. Dr. R.K. Taubert, the other defendant physician and an associate of Dr. Weimer, hospitalized the plaintiff and told her he thought she had a blood clot in her leg. Weimer, however, told the plaintiff that she had a muscle condition and would have to learn to live with it. In 1971, the plaintiff again consulted Weimer, indicating that the pain and spasms in her leg persisted and had worsened. Weimer stated that the pain and spasms were caused by a muscle condition, and told the plaintiff to walk, to massage the leg, and to ignore the pain. In July 1972, the plaintiff again was hospitalized. The plaintiff told Weimer that she heard from other women that birth control pills cause blood clots. Weimer told her that the pills did not cause blood clots, they were safe to take and they would not harm her in any way.

The plaintiff stopped taking the pills for one month in 1973 at the urging of her mother, but after Weimer assured the plaintiff that her leg problems were not caused by the pills, she resumed taking them. The plaintiff continued to consult Weimer regarding the problem, and Weimer told her that the blood clot in her leg was gone and that the trouble with her legs was a muscle condition. In May 1976, the plaintiff was hospitalized and Weimer again told her that the problem with her legs was a muscle condition, and he prescribed whirlpool baths and walking. The plaintiff asked Weimer for a veinogram, about which she had just heard. Weimer did not perform a veinogram test.

After being released from the hospital, the plaintiff consulted a physician not named in the lawsuit, who hospitalized her and discovered that she had bilateral thrombosis; occluded veins as a result of blood clots; and that the condition of her legs was serious. Three months later, the plaintiff filed a “letter complaint” against Weimer and Taubert in the circuit court. That complaint was dismissed without prejudice and another complaint forming the basis of the plaintiff’s appeal was filed.

The supreme court has set forth the rule that the statute of limitations begins to run when a person knows or reasonably should know of his injury and also reasonably should know that it was wrongfully caused. (Witherell, 85 Ill. 2d at 156.) In applying this standard to Witherell I, the supreme court stated:

“Had it not been for the alleged constant reassurance by Dr. Weimer that it was a muscle condition and not Ortho-Novum [the birth control pills] which was causing her problems, and had he not persuaded her it was safe to resume taking it after she voluntarily quit, plaintiff’s action would not have been so long delayed.” Witherell, 85 Ill. 2d at 158.

The supreme court found that equitable estoppel applied to prevent the defendant physicians from invoking the statute of limitations as a bar to the plaintiff’s action. (Witherell, 85 Ill. 2d at 160.) The court stated that in determining whether equitable estoppel applies, it is not the intent of the party estopped but the natural effect upon the other party which must be considered. (Witherell, 85 Ill. 2d at 159.) The court further noted that the defendant need not intentionally deceive the plaintiff for equitable estoppel to apply. The only requirement is that the plaintiff reasonably rely on the defendant’s conduct or representations. (Witherell, 85 Ill. 2d at 159, citing Bomba v. W.L. Belvidere, Inc. (7th Cir. 1978), 579 F.2d 1067, 1071.) Under the facts before it, the court in Witherell I stated:

“[W]e believe that considerations of fundamental fairness require that the defendant doctors be held estopped by their conduct from now urging that plaintiff should have sooner complained against them for a condition they repeatedly assured her she did not have. *** She is, in our judgment, entitled to an opportunity to prove the allegations upon which the estoppel and her cause of action are based.” Witherell, 85 Ill. 2d at 160.

Plaintiff in the instant case asserts that an application of the analysis in the Witherell cases to his own case will lead the court to find that equitable estoppel applies to bar defendant from invoking the statute of limitations as a defense. We disagree. The facts of Witherell are distinguishable from the facts of the instant case in a number of ways.

In Witherell, unlike in the instant case, there were constant assurances by the defendant, in response to repeated questions by the plaintiff, that the plaintiff’s medical problems were not serious. Further, the defendant in Witherell informed the plaintiff that her condition was something other than it was — that is, that her leg problem, which in fact was related to blood clots apparently resulting from the birth control pills, was merely a muscle condition. In additiop, the conduct by the defendant in Witherell extended for more than nine years. During that time, the defendant failed to administer a veinogram test, which was specifically requested by the plaintiff, and failed otherwise to consider the plaintiff’s suggestions that her condition might be related to the birth control pills. Further, the plaintiff had ceased taking the pills for a month during that time and resumed the prescription only when the defendant assured her again that the pills were not causing the pain and spasms in her leg.

The facts of her instant case clearly are not as egregious as the facts in Witherell. In the instant case, defendant initiated a recall program, through which it contacted plaintiff by letter of June 21, 1974, to inform plaintiff of the relation between irradiation treatment and an increased risk of developing benign or malignant thyroid abnormalities. Defendant’s letter of March 22, 1978, informed plaintiff that recent analyses of tests indicated that plaintiff’s blood contained high thyroglobulin levels, and further, that most patients with thyroid nodules also had high thyroglobulin levels. Defendant’s third letter to plaintiff, dated June 27, 1978, indicated that the examination performed by defendant’s personnel failed to detect any abnormalities in plaintiff’s thyroid, and indicated that defendant was uncertain as to how often, if ever, thyroid scan testing should be repeated in irradiated patients. Plaintiff was told by defendant that his thyroid was “normal.” Plaintiff discovered he had thyroid cancer in 1982.

We do not believe that the allegations of plaintiff’s amended complaint are sufficient to establish that the conduct of or representations by defendant were such that plaintiff could reasonably have relied upon them to believe that he was not at some risk of developing thyroid abnormalities. Plaintiff was informed of the increased risk to which he was subjected as a result of the irradiation treatment he had received. That plaintiff’s injury did not manifest itself until more than four years after the alleged negligent conduct is an unfortunate but necessary consequence of enforcing the statute of limitations. See Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665.

We note that similar results were reached in Real v. Kim (1983), 112 Ill. App. 3d 427, 445 N.E.2d 783, and Smith v. Cook County Hospital (1987), 164 Ill. App. 3d 857, 518 N.E.2d 336. Smith involved a medical malpractice action which was dismissed on the basis of being untimely under the statute of limitations. In Real v. Kim (1983), 112 Ill. App. 3d 427, 445 N.E.2d 783, the plaintiff brought an action for wrongful death, alleging medical malpractice for misdiagnosis in 1976 of the plaintiff’s medical condition. In 1979, it was discovered that the plaintiff had brain cancer, a condition which led to his death. An action was filed on behalf of the plaintiff in 1981. The trial court granted the defendant’s motion to dismiss the complaint on the grounds that the plaintiff’s claims were barred by the statute of limitations (Ill. Rev. Stat. 1979, ch. 83, par. 22.1 (now Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212)) and that, as a matter of law, the defendants were not estopped from asserting the statute of limitations as a defense. The appellate court affirmed the trial court, finding that the action was filed outside the time allowed for under the statute of limitations. (Real, 112 Ill. App. 3d at 431.) Further, the appellate court stated that equitable estoppel did not preclude the defendant from in-yoking the statute of limitations as a bar to the action, since the court found that the plaintiff’s complaint failed to state facts which, if proven, would establish estoppel. Real, 112 Ill. App. 3d at 436.

We also address the question of the propriety of the dismissal of plaintiff’s amended complaint under the law regarding motions to dismiss. The parties apparently agree that defendant’s motion to dismiss, while not expressly drawn pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615), is in the nature of a section 2 — 615 motion, rather than a section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) motion. In determining the propriety of the granting of a motion to dismiss under section 2 — 615, a court must accept all properly pleaded facts as true and be concerned only with the question of law presented by the pleadings. (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538.) In the instant case, therefore, we assume that the well-pleaded facts of plaintiff’s amended complaint are true. The question of law raised by plaintiff’s complaint involves application of the statute of limitations.

Ordinarily, the statute of limitations is an affirmative defense which cannot be raised by a motion to strike (a section 2 — 615 motion), unless it appears from the face of the complaint as a matter of law that the cause of action for which recovery is sought is barred by the statute of limitations. (Dana v. Neuchiller (1954), 2 Ill. App. 2d 170, 118 N.E.2d 885 (abstract of opinion); see also Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619.) That plaintiff’s complaint in the instant case was filed outside the statute of limitations (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 212) is clear from the complaint. Plaintiff also alleges in his complaint, however, that equitable estoppel precludes defendant from invoking the statute of limitations as a bar to his action. We find that the resolution of the equitable estoppel issue also can be made by looking to the face of the complaint and the exhibits attached to the complaint. Therefore, we believe that the propriety of the dismissal of plaintiff’s amended complaint is properly determined by the standards relevant to a section 2 — 615 motion.

When determining whether to grant or deny a section 2— 615 motion to dismiss, a court must consider the legal sufficiency of the complaint based only on the allegations of the complaint. (Goldstein v. Lustig (1987), 154 Ill. App. 3d 595, 507 N.E.2d 164.) Exhibits attached to the complaint become a part of the complaint, and factual assertions contained in the exhibits which are inconsistent with the allegations of the complaint negate such allegations. (Goldstein, 154 Ill. App. 3d at 598.) While a motion to dismiss admits all well-pleaded facts and reasonable inferences that can be drawn therefrom (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 426, 430 N.E.2d 976; American International Hospital v. Chicago Tribune Co. (1985), 136 Ill. App. 3d 1019, 483 N.E.2d 965), any allegations of the complaint which conflict with the facts contained in the exhibits attached to the complaint are not deemed to be admitted (Goldstein v. Lustig (1987), 154 Ill. App. 3d 595, 507 N.E.2d 164). A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts could be proved which would entitle the plaintiff to recover. Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 495 N.E.2d 1132.

Defendant asserts that the letters attached to plaintiff’s complaint, which are the letters written by defendant in 1974 and 1978 regarding defendant’s examinations of plaintiff, conflict with the complaint since they indicate that defendant informed plaintiff of the risks of the irradiation therapy. Therefore, defendant asserts, the allegations of the complaint indicating that defendant failed to inform plaintiff cannot be taken as true. Plaintiff responds that there is no inconsistency between the exhibits and the complaint, and asserts that he could have brought suit in 1978 if defendant told him he was at risk at that time.

We find that the exhibits to plaintiff’s complaint clearly indicate that defendant notified plaintiff of the known potential risks of the radiation treatment and that follow-up treatment was recommended. For instance, defendant’s June 21, 1974, letter stated, “it is now well recognized that patients who received x-ray treatment to the head and neck regions during childhood have an increased risk of developing thyroid neoplasms, both benign and malignant.” Defendant’s March 22, 1978, letter stated that plaintiff’s thyroglobulin level was higher than that of most other patients and that most patients with thyroid nodules had high thyroglobulin levels. Although the March 1978 letter states that the hospital was “still uncertain as to how often, if ever, thyroid scans should be repeated in all irradiated patients,” the June 1974 letter indicated that patients who are apparently normal should be examined “properly every year as they may develop nodules.” The exhibits thus clearly indicate that defendant informed plaintiff of risks and the benefit and necessity of follow-up treatment.

In order to rely on the doctrine of equitable estoppel, plaintiff must show that he relied upon an act or representation of fact and had no knowledge or means of knowing the true facts. (Pantle v. Industrial Comm’n (1975), 61 Ill. 2d 365, 371, 335 N.E.2d 491; Den- ton Enterprises, Inc. v. Illinois State Toll Highway Authority (1979), 77 Ill. App. 3d 495, 396 N.E.2d 34.) Since we have found that defendant informed plaintiff of the acts known to defendant regarding the risks and follow-up treatment necessary in connection with the irradiation treatment plaintiff underwent, we hold that the trial court properly dismissed plaintiff’s amended complaint, since it is apparent that no set of facts could be alleged under which plaintiff could state a cause of action. Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 495 N.E.2d 1132; Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 490 N.E.2d 665.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

RIZZI and WHITE, JJ., concur.


author: JUSTICE McNAMARA

text:
      In re MARRIAGE OF ESTELLE WEBER, Petitioner-Appellant, and LOUIS WEBER, Respondent-Appellee.
    First District (3rd Division)
    No. 1—88—0244
    Opinion filed April 12, 1989.

      Schiller, DuCanto & Fleck, Ltd., of Chicago (Sarane C. Siewerth, of counsel), for appellant.
    Howard A. London, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Estelle Weber, filed a petition for dissolution of her marriage from respondent, Louis Weber, and incorporated by reference a three-count declaratory judgment petition. The trial court dismissed counts I and II of the petition for declaratory judgment on the basis that such a judgment would not terminate the controversy or some part thereof as required by section 2 — 701 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701(a)). Petitioner appeals from that dismissal order. On this same date, we are issuing an opinion pertaining to an order of the trial court granting a preliminary injunction to Estelle. In re Marriage of Weber (1989), 182 Ill. App. 3d 212.

On November 23, 1987, petitioner sought dissolution of marriage and other relief. She alleged that the parties were partners in a publication business carried out through their business, Publications International, Ltd. (PIL), and Publications International Subscription Corporation, which businesses were the primary asset owned by the business partnership. Petitioner sought an equitable share of the marital property, including a one-half or greater interest in the business partnership, including 50% or more of the outstanding stock.

Counts I and II of the declaratory judgment petition sought a declaration that the parties were equal partners in the business and that the partnership was the beneficial owner of certain corporation stock held in respondent’s name; the dissolution of the partnership; and an order requiring respondent to transfer 50% of his stock to petitioner. (Count III sought an order of protection, a preliminary injunction and an accounting relative to the corporations. This is considered in our accompanying opinion.)

On December 21, 1987, the trial court granted respondent’s motion to dismiss counts I and II of the petition for declaratory judgment.

The granting or denial of a declaratory judgment is a matter within the trial court’s discretion, and its determination will not be disturbed absent an abuse of that discretion. (Krebs v. Mini (1977), 53 Ill. App. 3d 787, 368 N.E.2d 159.) A trial court does not abuse its discretion in refusing to grant a declaratory judgment which would not terminate any part of the controversy. Krebs v. Mini (1977), 53 Ill. App. 3d 787, 368 N.E.2d 159 (declaratory finding that parties were partners would leave issues of terms or partnership and breach of those terms, and issuance or transfer of the stock, resulting in piecemeal litigation), citing Farmers Insurance Group v. Harris (1972), 4 Ill. App. 3d 372, 279 N.E.2d 789; see also Outboard Marine Corp. v. James Chisholm & Sons, Inc. (1985), 133 Ill. App. 3d 238, 478 N.E.2d 651.

Section 2 — 701 provides that the trial “court shall refuse to enter a declaratory judgment or order, if it appears that the judgment or order, would not terminate the controversy or some part thereof, giving rise to the proceeding.” (Ill. Rev. Stat. 1987, ch. 110, par. 2— 701(a).) This requirement is intended to emphasize the fact that the declaratory judgment procedure is not meant to enable parties to secure advisory opinions or legal advice from the court with respect to expected future difficulties. (Ill. Ann. Stat., ch. 110, par. 2 — 701, Historical & Practice Notes, at 11 (Smith-Hurd 1983), citing Exchange National Bank v. County of Cook (1955), 6 Ill. 2d 419, 129 N.E.2d 1; Spalding v. City of Granite City (1953), 415 Ill. 274, 113 N.E.2d 567; Saline Branch Drainage District v. Urbana-Champaign Sanitary District (1948), 399 Ill. 189, 77 N.E.2d 158.) In addition, the phrase “or some part thereof” recognizes that litigation may include many parts and the administration of justice is advanced by avoiding piecemeal litigation. Ill. Ann. Stat., ch. 110, par. 2 — 701, Historical & Practice Notes, at 11-12 (Smith-Hurd 1983).

In the present case, a finding that respondent holds the PIL stock on behalf of the parties’ partnership would not terminate any part of the dissolution action. The court would be left with the task of dividing the business in just proportions under the appropriate statute. (Ill. Rev. Stat. 1987, ch. 40, par. 503(d).) Even if it found petitioner was a 50% owner of PIL, the court need not award that amount to either party. (See In re Marriage of Sang Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) Often the court will avoid a division of a business where it would require the parties to continue a business association and demand a great deal of cooperation as to business and financial matters. See In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.

Thus, whether or not a partnership exists would only be a preliminary question to the dissolution issues. The answer to the preliminary question would not resolve any part of the dissolution proceeding. This is a dissolution of marriage case where the preliminary determination of ownership of partnership shares as part of the marital estate is necessarily followed by the division between the parties under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.), not under Illinois partnership law. A declaration that petitioner owned a partnership interest in PIL would not determine the ultimate disposition of that asset.

We find that the trial court did not abuse its discretion in dismissing counts I and II of the petition for declaratory judgment where the judgment order would not have terminated the controversy, or some part thereof, giving rise to the proceedings. See Wood v. School District No. 65 (1974), 18 Ill. App. 3d 33, 309 N.E.2d 408.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

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

       Judge McNamara participated in this opinion prior to his transfer to the sixth division.


text:
      In re MARRIAGE OF ESTELLE WEBER, Petitioner-Appellee, and LOUIS WEBER, Respondent-Appellant.
    First District (3rd Division)
    No. 1—88—2267
    Opinion filed April 12, 1989.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Howard A. London, of counsel), for appellant.
    Schiller, DuCanto & Fleck, Ltd., of Chicago (David H. Hopkins and Sarane C. Siewerth, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Estelle Weber, filed a petition for dissolution of her marriage from respondent, Louis Weber, and incorporated by reference a three-count declaratory judgment petition. In this appeal we consider the trial court’s grant of a preliminary injunction in favor of petitioner which, among other things, enjoined respondent from terminating petitioner’s interest in a business they founded. Respondent filed this interlocutory appeal, contending that petitioner failed to establish all prerequisite elements of a preliminary injunction. On the same date, we are issuing an opinion affirming an order of the trial court dismissing counts I and II of Estelle’s petition for declaratory judgment. In re Marriage of Weber (1989), 182 Ill. App. 3d 208.

The parties were married on September 26, 1963. In March 1987, respondent requested a divorce. On November 23, 1987, petitioner filed a petition for dissolution of marriage and other relief.

The petition alleged the parties’ primary marital asset was a business partnership in the publications field. The business, Publications International, Ltd. (PIL), was founded by the parties in 1965 and incorporated in 1967. Publications International Subscription Corporation (PISC), a subsidiary of PIL, was formed to conduct subscription operations. Respondent holds title to all stock.

The parties serve as the directors of the two-member board of directors. Respondent, 50 years old, was president and now acts as chief executive officer. Petitioner, 63 years old, is corporate secretary, vice-president, and associate publisher. Both parties work full time for the business. The parties have listed the corporation with a business broker and plan to sell it.

Respondent informed the State of Illinois retail occupation tax authorities that the parties both owned PIL. The company advised Dun & Bradstreet that each party owned 50% of PIL’s capital stock. PIL publications recited that both parties founded the company. The petition sought to establish that the parties were equal partners, with the accompanying fiduciary duties to each other.

The petition alleged further that respondent had sought to usurp control of the business by hiring new officer-level employees; preventing petitioner from attending key meetings; reducing petitioner’s operational and managerial activities; denying her access to full information and corporate records, and full participation in business decisions, including those related to the possible sale of PIL; creating disturbances at work to humiliate petitioner; and authorizing substantial advances from PIL to hiim ">lf without accounting to petitioner.

The petition alleged various examples of respondent’s harassment of petitioner. For example, he stated at work that petitioner was “fired” and would be “thrown out” by the police. He told petitioner she was to have no contact with or receive information from the brokers trying to sell PIL. Respondent stated his employees had been instructed that petitioner was not to see any PIL financial records, as she was a “mere employee.” Respondent barred petitioner from a meeting with the PIL outside accountant and from meetings with customers. Petitioner’s attempts to pursue business matters with PIL employees were often unsuccessful.

Petitioner alleged respondent’s abuse had irreparably injured her; damaged her business reputation; and harmed her ability to effectively negotiate future employment. Petitioner alleged she had no adequate remedy at law, harming her ability to effectively negotiate a consulting agreement between herself and prospective corporate buyers of PIL.

Petitioner sought judgment for dissolution of marriage; maintenance; a 50% or greater interest in the business partnership and outstanding stock; her nonmarital property; compensatory and punitive damages; and attorney fees and costs. Petitioner requested that respondent be ordered to not harass her or deny her the right to full participation in the business and operation of the business; prohibit respondent from terminating petitioner’s status as an officer and director; and prohibit respondent from changing her duties, compensations or benefits, or deplete the value of her interests in PIL and PISC. Petitioner also requested an order of protection under the Illinois Domestic Violence Act (Ill. Rev. Stat. 1987, ch. 40, par. 2311 — 1 et seq.) to prohibit respondent’s harassment or physical abuse. As an alternative to a protective order, petitioner requested a preliminary injunction to enjoin respondent in the same manner. Petitioner also asked that respondent file a full accounting of sums paid to his former secretary.

On December 8, 1987, the trial court entered an agreed temporary restraining order (TRO) and other interim preliminary injunction orders continuing the effect of the TRO until the court ruled on the petition for injunctive relief.

At the preliminary injunction hearing, petitioner testified regarding her involvement in PIL. She serves as a director, executive vice-president and associate publisher. She earns $50,000 per year. Respondent is director, chief operating officer and was president until recently. He earns $100,000 per year.

Petitioner testified that she was involved in editorial, sales, personnel, legal and financial activities in the business. She read and commented on all edited copy, met regularly with editors, handled sales meetings and trade shows, and did some sales promotional work. For example, she made over 20 sales presentations in 1986. She and respondent made these presentations together, each covering different aspects of the presentation. She interviewed job applicants, testified for PIL in a trademark infringement action, attended corporate financial meetings, and signed papers and bank forms as corporate secretary.

Petitioner testified further that respondent always represented she was a 50% owner of the business, despite the fact that he held title to the stock. Her termination would affect her mentally and emotionally. She would lose her ability to oversee the business and was concerned about its deterioration in her absence. She did not know if she was still employable, but assumed it would be hard to find a job if she were fired.

Petitioner testified to numerous instances of disturbances at work and included further examples in an affidavit. For example, when petitioner’s secretary brought her a PIL credit card bill allegedly showing that respondent charged $19,000 worth of goods on his girlfriend, respondent fired petitioner’s secretary. Respondent yelled that petitioner was no longer to talk to him and that she should “walk on eggs and keep my mouth shut or he would call the police to remove me. He threw my coat and scarf out in the foyer so everybody could see.”

James Stoller, a litigation consultant with an accounting firm, testified for petitioner that if petitioner remained in place in her present capacities he would advise a prospective buyer of PIL that her knowledge and experience would be a valuable asset, at least for a period of time. Petitioner would have a certain bargaining position with a buyer and could seek a consulting or other arrangement. If petitioner were no longer functioning within the company, it could adversely' affect the sale, her bargaining position, the viability of her career and monetary advantages. However, a purchaser would probably not employ either party for any significant period of time.

Respondent testified that he would pay petitioner as a consultant at her current salary if she would leave the business. Her presence at work was adversely affecting him and the company. He spends undue time dealing with her “on a personal level,” leaving him inadequate time to deal with the business in an efficient manner. Personal discussions consumed five hours per week. Her interruptions in meetings consumed another five hours.

Respondent testified that during meetings, employees were distracted by the divorce dispute. It resulted in employees being inhibited in meetings. Respondent had trouble working on creating products and ideas because he was “afraid of Estelle walking into a meeting and disturbing the meeting and creating an upheaval.” Respondent testified in an offer of proof that he never told his wife she would be a 50% partner in PIL. Profits had gone down since petitioner’s participation in the company decreased.

John Robert Stanik, the new president of PIL, testified that sales were increasing, but profits were not necessarily increasing commensurate with sales. During his four months at PIL, petitioner had subjected co-workers to “high decibel yelling” and “screaming obscenity.” Thus, petitioner hampered creative thinking by the employees. Stanik did not believe petitioner’s career would suffer if she were fired due to “domestic tribulation.”

Howard Bauman, the production print manager, testified he heard shouting between the parties at least three times. Frank Filer, a vice-president and publisher, testified he saw two arguments between the parties.

Wayne Giampietro, an attorney for PIL, testified he had never been told that petitioner had an ownership interest in the business.

C.E. Dickerson, a management consultant, testified for respondent that petitioner’s reputation and employability would not be harmed if she were fired because of a “domestic situation.” She probably would be able to find a job in about six months and could very well get an executive vice-president level position. Her age would be a factor, but her experience and productivity should outweigh that factor.

The trial court entered a preliminary injunction which restrained each party from threatening, harassing or interfering with the personal liberty of the other party and from transferring, encumbering, concealing, damaging or otherwise disposing of any of the property of the other party or their joint property; prohibited respondent from interfering with petitioner in the performance of the normal duties as director, officer and employee of PIL and PISC, and from terminating her as a director, officer and employee; prohibited respondent from taking any action to diminish petitioner’s partnership, shareholder or marital property interests, if any, in PIL and PISC, and from taking any action to reduce her compensation or other benefits from the business; and prohibited petitioner from issuing directives to employees or require reporting from them without first obtaining respondent’s approval as president and CEO, provided that normal business communication would not be restrained.

The trial court also directed that respondent was to continue as CEO free from any interference by petitioner in the area of management and in carrying out his duties. Both parties were enjoined from making any extraordinary expenditures from PIL or PISC or other marital assets without 14 days’ notice to the other party. The sale of the business could not be finalized by respondent without 30 days’ notice to petitioner. Issues as to other requested relief were reserved.

The issuance of a preliminary injunction is solely within the discretion of the trial court. (Jefco Laboratories, Inc. v. Carroo (1985), 136 Ill. App. 3d 793, 483 N.E.2d 999.) At the evidentiary hearing, a petitioner bears the burden of proving she is entitled to injunctive relief. (Baal v. McDonald’s Corp. (1981), 97 Ill. App. 3d 495, 422 N.E.2d 1166.) A reviewing court must restrict itself to a determination of whether the trial court correctly exercised its broad discretionary powers. (Baal v. McDonald’s Corp., 97 Ill. App. 3d 495, 422 N.E.2d 1166.) The reviewing court looks to the sufficiency of the evidence only for the limited purpose of ascertaining whether that discretion has been abused. (Baal v. McDonald’s Corp., 97 111. App. 3d 495, 422 N.E.2d 1166.) The test to determine an abuse of discretion is whether the court’s decision is against the manifest weight of the evidence. Jefco Laboratories, Inc. v. Carroo, 136 111. App. 3d 793, 483 N.E.2d 999.

A party must show the need to preserve the status quo in that he would otherwise suffer irreparable harm. (Baal v. McDonald’s Corp., 97 Ill. App. 3d 495, 422 N.E.2d 1166.) The status quo is the last, actual, peaceable, uncontested status which preceded the controversy. (Baal v. McDonald’s Corp., 97 Ill. App. 3d 495, 422 N.E.2d 1166.) Here, the status quo of the parties encompassed their normal routine manner of operating the business which they founded and built together over a period of almost a quarter century. Petitioner seeks to preserve the status quo, i.e., her right to continue participating in the operating of the business pending the final determination of the marital property controversy on the merits. Furthermore, petitioner seeks to prevent dissipation or destruction of the property in question. (See Gannett Outdoor v. Baise (1987), 163 Ill. App. 3d 717, 516 N.E.2d 915.) This necessarily includes PIL’s right to continue to benefit from petitioner’s contributions and petitioner’s right to enjoy the benefits represented by her status in the business. This extends beyond any mere ownership in title to stock. (See IMM Acceptance Corp. v. First National Bank & Trust Co. (1986), 148 Ill. App. 3d 949, 499 N.E.2d 1012.) Petitioner sufficiently proved the propriety of preserving the status quo.

The issue of whether the trial court properly entered the preliminary injunction requires the examination of the possibility of irreparable harm to petitioner’s legal rights pending the outcome of trial if the preliminary injunction does not issue; the potential irreparable harm to defendant’s rights if it does issue; and petitioner’s likelihood of success on the merits. (Kanter & Eisenberg v. Madison Associates (1987), 116 Ill. 2d 506, 508 N.E.2d 1053.) Thus, by a preponderance of the evidence, a petitioner must establish she possesses a certain and clearly ascertained right which needs protection; she will suffer irreparable injury without the injunctive protection; there is no adequate remedy at law for the injury; and she is likely to be successful on the merits. Baal v. McDonald’s Corp., 97 Ill. App. 3d 495, 422 N.E.2d 1166.

Respondent maintains that petitioner failed to establish a clearly ascertained right which needs protection. Petitioner need only raise a fair question as to the existence of the right claimed. (Baal v. McDonald’s Corp., 97 Ill. App. 3d 495, 422 N.E.2d 1166.) We believe petitioner has shown a legal right needing protection. The right to acquire property by labor or by conducting a lawful business is equally as entitled to protection as the right to guard property already acquired. (Baal v. McDonald’s Corp., 97 Ill. App. 3d 495, 422 N.E.2d 1166.) A legitimate, threatened business interest is a right which may receive injunctive protection. Morrison Metalweld Process Corp. v. Valent (1981), 97 Ill. App. 3d 373, 422 N.E.2d 1034.

Petitioner showed that she and respondent were the sole founders of PIL; that they worked together at trade shows, and in soliciting and selling publication services to clients; that they shared major operational decision making; that they have both devoted full time to the business; and that they both invested their funds in the business. While one party dealt with department heads in certain areas, the other party managed other areas of the business. Both parties served on the two-member board of directors.

In addition, respondent admitted to a management consultant petitioner’s participation in the total operating functions of the business. Furthermore, respondent named both parties as owners of PIL on State tax forms. Respondent also informed Dun & Bradstreet that each party owned one-half of PIL’s capital stock. Petitioner presented sufficient evidence to establish her possession of an ascertainable property right entitled to protection. The trial court was entitled to find that petitioner has a protectable property interest as “founder and owner, officer, director, employee and insider of PIL,” and that the chief marital asset could not be duplicated outside of the company.

Respondent next maintains petitioner failed to establish that she would be susceptible to irreparable damage if the injunction did not issue and if she was forced to wait for a decision on the merits. The court properly found that without the protection of the injunction, her termination may waste the principal asset by depriving it of her continued service and expertise; that it would preclude her from negotiating payments in exchange for a covenant not to compete or a consulting contract if the company were sold. The threat of loss of sales is sufficient proof of irreparable harm. (Gannett Outdoor v. Baise, 163 Ill. App. 3d 717, 516 N.E.2d 915.) A party seeking an injunction need not wait until an injury occurs. (Office Electronics, Inc. v. Grafic Forms, Inc. (1978), 56 Ill. App. 3d 395, 372 N.E.2d 125.) Moreover, the threat of dissipation of the marital asset may. be considered. (See In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 464 N.E.2d 795.) The evidence here shows a legitimate threat to petitioner’s business interests and that irreparable harm may result absent the protection offered by a preliminary injunction.

If an adequate legal or equitable remedy will make the petitioner whole after trial, a preliminary injunction should not issue. (Kanter & Eisenberg v. Madison Associates, 116 Ill. 2d 506, 508 N.E.2d 1053.) Here, however, petitioner’s termination would result in damages not clearly ascertainable in money with a reasonable degree of certainty Petitioner seeks more than mere compensation of salary.

We must also weigh the harm to petitioner against the harm to respondent and the parties’ respective prospects for success on the merits. (Kanter & Eisenberg v. Madison Associates, 116 Ill. 2d 506, 508 N.E.2d 1053.) The business has been run with petitioner’s active participation for 24 years, with both parties participating in daily management decision making. Because of her extensive involvement in the business, she may be awarded a substantial part of PIL at the conclusion of the dissolution of marriage action.

In contrast, the only harm suffered by respondent is the personal conflicts which both parties have created in the workplace. The trial court has restrained both parties from further disrupting the workplace. We perceive no significant injury to respondent in waiting for a final adjudication on the merits. Without the injunction, petitioner suffers the severance of her property rights. With the injunction, neither party loses presently held property rights. Thus, the injury suffered by petitioner without the injunction is greater than that which respondent would suffer if the injunction is issued.

Moreover, under an exception to the necessity of establishing probable success on the merits, if the subject of the injunction is property rights which may be destroyed, petitioner may seek only to maintain the status quo, even where there may be serious doubt as to the ultimate success on the merits. (See Alexander v. Standard Oil Co. (1977), 53 Ill. App. 3d 690, 368 N.E.2d 1010.) We agree with the general proposition cited in In re Marriage of Schwartz (1985), 131 Ill. App. 3d 351, 475 N.E.2d 1077, that the issue of whether petitioner is likely to succeed on the merits is not fruitful in a case such as this, where the dissolution proceeding is a “no win” situation.

Respondent relies heavily upon the aforementioned In re Marriage of Schwartz, where this court held the trial court erred in granting injunctive relief. Unlike the present case, in Schwartz, the last actual, peaceable, uncontested status was where respondent alone held title to the Florida condominium which she permitted petitioner to use. The trial court changed that status by taking away respondent’s right to exclude anyone she wished from the property. The petitioner held no interest in the property. In contrast, the trial court here made findings, supported by the evidence, that petitioner holds certain property interests in the asset.

We conclude that the trial court’s findings are supported by the evidence. It did not abuse its discretion in issuing the preliminary injunction.

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

Judgment affirmed.

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

       Justice McNamara participated in this opinion prior to his assignment to the sixth division.