text:
    JOHN RENDLEMAN, Plaintiff-Appellee, v. A B A BUILDING MAINTENANCE, INC., Defendant and Third-Party Plaintiff-Appellant (National Super Markets, Inc., Third-Party Defendant-Appellee).
    Fifth District
    No. 5—90—0632
    Opinion filed December 18, 1991.

      John L. McMullin and T. Michael Ward, both of Brown & James, P.C., of Belleville and of St. Louis, Missouri, for appellant.
    Harlan A. Harla, of Walker & Williams, P.C., of Belleville, for appellee John Rendleman.
    Patricia A. Manhart, of St. Louis, Missouri, for appellee National Super Markets, Inc.
   JUSTICE CHAPMAN

delivered the opinion of the court:

John Rendleman filed a cause of action against ABA Building Maintenance (A B A) for personal injuries he sustained when he slipped and fell at the National Super Market (National) where he was employed to stock shelves. ABA filed a third-party action against National, and the case proceeded to trial. At the close of all of the evidence, the trial court directed a verdict in favor of National on the third-party claim against it. The jury returned a verdict for Rendleman against A B A in the sum of $97,105.50. Following A B A’a post-trial motion, the judgment was reduced by a remittitur in the sum of $809.79. ABA appeals.

Rendleman alleged that ABA negligently and carelessly: (1) applied wax to the floors; (2) failed to warn National employees that wax had been applied; and (3) failed to provide adequate lighting so that National employees could see that wax had been applied. A B A’s third-party action against National alleged that National contributed to Rendleman’s injuries by negligently and carelessly: (1) failing to warn National employees that wax had been applied to the floors; and (2) failing to provide adequate lighting so that National employees could see that wax had been applied.

Rendleman testified that he was employed at National as a stocker and that his duties required him to put misplaced merchandise in the proper location. Rendleman worked primarily at night and testified that he observed ABA employees working at night as well. ABA employees never used floor warning cones when waxing or mopping the store’s floor, even though such cones were kept with the cleaning supplies and were available to the workers. Rendleman explained that there was no coordination between National employees and ABA employees as to where the latter were working in the store at any given time and that it was his practice to simply avoid areas where ABA employees were working.

Rendleman also testified that every other row of lights was on, which provided enough lighting for him to do his job. The aisles of merchandise at the store run from front to back, and the rows of fluorescent lights run perpendicular to the aisles. Rendleman had no control over the way the- store was lighted while he worked, and he believed that National’s management personnel had responsibility for controlling the lighting. Although he had never previously complained about the lighting, he testified that he could have determined whether the floor was wet or dry had there been adequate lighting.

On the night of the incident Rendleman was stocking shelves when he came across a misplaced jar of pickles. At that time he did not know where the employees from ABA were working. Rendleman heard no noise and saw no warning cones. Rendleman started to enter aisle five to shelve the pickles when he slipped and fell on the wet floor. He testified that he had no prior indication that the floor was wet. When he fell, the jar of pickles broke and he cut his hand. Rendleman stood up and found that he had wax on his pants, shirt and shoes. He was taken to the hospital and as a result of his injuries missed work for 21 weeks.

Pamela Helton testified that she was the bakery manager at the National store where plaintiff worked. She was working on the night of the incident when she heard Rendleman yell, “I cut myself; Call an ambulance.” Helton saw Rendleman walking towards her clutching his right hand with his left hand. She did not notice whether there were warning cones in the area. Helton also testified that she did not remember any differences in the store lighting from the lighting that is normally utilized during the day when she usually works.

Joyce Maher, the owner of A B A, testified that on the night of the incident ABA employees Lamont Vincent, Marcus Humphrey and Ken Sanders were at the National store. Vincent was the supervisor, and it was his job to coordinate A B A’s work with National’s head stock clerk. Vincent was supposed to advise the National employees “where they would be so we could get into the other aisles of the store.” Maher testified that part of A B A’a agreement with National was for A B A to make sure that there were warning cones on either end of the recently waxed areas.

The head stock clerk for National, Gregory Jones, testified that he was not aware of any nightly procedure which required National employees and ABA employees to coordinate their work. The normal routine was for A B A employees to stay out of the aisles where National employees were working. Jones could not remember whether warning cones were used that night. He testified that the lighting in the store is dimmed at night but that this does not cause any problem with a person’s ability to see whether a floor is waxed. No one ever complained to Jones about not being able to see because of the lighting conditions.

Ken Sanders testified that he was working for A B A at the National store on the night of the incident. Sanders and two other ABA employees were waxing floors. There were orange warning cones on each end of the aisles where they were waxing. Sanders testified that a burnisher, used in waxing the floors, was used about 10 minutes prior to the accident in the aisle where Rendleman fell. The burnisher is loud and when in use can be heard throughout the store. Just prior to Rendleman’s fall Sanders told him, “The aisle is still wet, can you wait until it dries?” Rendleman told him, “I can make it.” Sanders testified that Rendleman walked past the cones, slipped and fell. On cross-examination, Sanders testified that Marcus told him there were only two warning cones available for use that night, even though ABA employees were working in various aisles. Sanders did not know where any of the National employees were working when Rendleman fell and was unaware of any rule that ABA employees were to coordinate their work with the National employees.

Rendleman testified in rebuttal that he did not hear the burnisher before his fall. He denied that there were any warning cones at the end of the aisle where he fell, and he further denied that Sanders was anywhere near the area where he was at the time he fell.

The first issue on appeal is whether the trial court erred in directing a verdict for National on A B A’s third-party action.

In determining whether a verdict should be directed, the court must determine that the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 139-40, 554 N.E.2d 223, 226, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 510; see also Darnell v. Impact Industries, Inc. (1984), 105 Ill. 2d 158, 473 N.E.2d 935.) To prevail on its theory that National was negligent, ABA had to prove that National owed a duty, that the duty was breached, that Rendleman suffered damages, and that National’s breach of the duty was a proximate cause of Rendleman’s damages. See Windeguth v. National Super Markets, Inc. (1990), 201 Ill. App. 3d 35, 37, 558 N.E.2d 548, 549.

In the instant case there was evidence that when National is closed only 50% of the lighting is used. Rendleman testified that he believed that the store’s management personnel were responsible for the store’s lighting. Employees of A B A testified that ABA did not have any control over the lighting. From the evidence it can be inferred that National had control over the lighting. Although some witnesses testified that the lighting did not pose a problem, Rendleman testified that had there been adequate lighting he would have been able to see that the floor was freshly waxed, and he would not have fallen.

There may be more than one proximate cause of an injury, and where the defendant owes a duty of due care, it may be liable even if its acts or omissions did not create the source of damage. (Windeguth, 201 Ill. App. 3d at 37, 558 N.E.2d at 549.) Viewed in its aspect most favorable to A B A, the evidence did not so overwhelmingly favor National that a contrary verdict could never stand. There was adequate evidence to support a jury finding that National’s failure to provide adequate lighting was a proximate cause of Rendleman’s injuries. We conclude that the trial court erred in directing a verdict against ABA and in favor of National, and we reverse and remand for a new trial on that issue.

With regard to its appeal as to Rendleman, ABA contends that the trial court erred in submitting Rendleman’s instruction No. 14A:

“The plaintiff claims that he was injured and sustained damage, and that the defendant was negligent in one or more of the following respects:
a. Negligently permitted wax to be applied to the aisles in the National Super Market when the defendant knew, or should have known, that the application of wax to the aisles was unreasonably dangerous;
b. Negligently failed to warn the plaintiff that wax had been applied ***;
c. Negligently failed to place warning cones in the aisles * * *.
i
d. Negligently failed to ensure there was adequate lighting in the National Super Market so that the plaintiff could see that wax had been applied to the aisles in the super market.
* * *
The defendant further claims that one or more of the foregoing was a proximate cause of plaintiff’s injuries ***.” (Emphasis added.)

ABA contends that the court erred in submitting this instruction because there was no evidence to support the findings in subparagraphs (a) and (d). Rendleman argues that there was evidence to support the allegations in subparagraphs (b) and (c), and ABA does not dispute this. Evidence was presented that no warning cones were used to warn of the freshly waxed floor and no one told Rendleman that the floor had been waxed. The jury returned a general verdict in favor of Rendleman.

The return of a general verdict creates a presumption that all issues of fact upon which proof was offered were found in favor of the prevailing party. (Klingler Farms, Inc. v. Effingham Equity, Inc. (1988), 171 Ill. App. 3d 567, 572, 525 N.E.2d 1172, 1175; Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1201.) Klingler Farms involved a breach of contract action, and the issues instruction contained two allegations of a breach of contract. The court held that proof of either allegation would support the verdict for the plaintiff. Because there was proof regarding one of the allegations, this evidence was sufficient to support the jury’s verdict. In the instant case the jury returned a general verdict and there is sufficient evidence to support the allegations in subparagraphs (b) and (c). We do not believe the jury was misled or that ABA was prejudiced by the instruction.

The final issue for review is whether the trial court erred in overruling A B A’s objection to Rendleman’s closing argument. Rendleman’s counsel made the statement during closing argument, “I submit to you [Ken Sanders] was fired, not because of transportation problems, but because he didn’t put this cone down.” ABA objected, arguing, “There is absolutely no evidence, no reasonable inference from the evidence that could be drawn.”

The scope of closing argument is within the sound discretion of the trial court. (Myers v. Williams (1987), 160 Ill. App. 3d 707, 513 N.E.2d 1209.) The trial court in this case, in ruling on A B A’s objection, stated, “The jury heard the testimony and they can make their own inferences.” Rendleman contends that the statement he made in closing argument was a reasonable inference drawn from the evidence.

Ken Sanders testified that he worked for ABA less than three weeks prior to Rendleman’s accident on January 7, 1987. This was the first time Sanders had been in this particular National store. Sanders testified that he was discharged the morning Rendleman was injured because of transportation problems. There is nothing in the record, however, indicating that he had problems in getting to work. Rendleman’s statement in closing argument that Sanders was discharged because he did not úse warning cones is a reasonable inference from the evidence. The ABA employees’ responsibility for seeing that warning cones were used, the timing of Sanders’ termination, and the fact that there is no other evidence that Sanders had transportation problems raise a reasonable inference that he was discharged because of something other than transportation problems. It would not be unreasonable to conclude that Sanders was discharged because he failed to use the warning cones.

Courts have always considered it within the province of the jury to make reasonable inferences from established facts, and such permissible inferences will not be discarded by a reviewing court because other inferences might have been drawn from such established facts, unless the inferences drawn are unreasonable. (Schwedler v. Galvan (1977), 46 Ill. App. 3d 630, 638, 360 N.E.2d 1324, 1330.) During closing argument counsel is permitted broad latitude to draw reasonable inferences and conclusions from the evidence. (Myers, 160 Ill. App. 3d at 714, 513 N.E.2d at 1213.) We find that under the circumstances the inference Rendleman made in closing argument was reasonable.

We conclude that the trial court did not err in submitting the alleged erroneous jury instruction, nor did the court err in overruling A B A’s objection to Rendleman’s closing argument. However, because of our determination that the trial court erred in directing a verdict for National, the judgment of the circuit court of St. Clair County is reversed and this cause is remanded for a new trial on the third-party action only.

Affirmed in part; reversed and remanded in part.

GOLDENHERSH, P.J., and RARICK, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    CALUMET CONSTRUCTION CORPORATION, Plaintiff-Appellant, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, Defendant-Appellee.
    First District (1st Division)
    No. 1—89—1933
    Opinion filed September 30, 1991.

      O’Brien, O’Rourke, Hogan & McNulty, of Chicago (Donald V. O’Brien and Michael Gilman, of counsel), for appellant.
    Jack L. Shankman and James B. Murray, both of Metropolitan Sanitary District of Greater Chicago, of Chicago, for appellee.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

On September 15, 1983, plaintiff, Calumet Construction Corporation, entered into a contract with defendant, The Metropolitan Sanitary District. In accordance with the contract, plaintiff agreed to construct six sludge digestion tanks, three boilers, a methane gas compressor building and to perform rehabilitation work on 12 existing sludge tanks. Plaintiff agreed to perform these services at a cost to defendant of $22,575,000 and to complete the work within 900 days.

The United States Environmental Protection Agency (hereinafter EPA) funded a major percentage of the expenditures for the project. In accordance with its funding guidelines, the contract contained the standard Federal appendices (appendix B), as well as general condition provisions. The “suspension of work” clause in appendix B provided that an “equitable adjustment” could be made for delay damages except where such an adjustment was provided for or excluded under any other provision of the contract. Article 27 of the general conditions provisions specifically listed what damages were recoverable due to delay by defendant.

Plaintiff did not complete the project within the 900-day period due to problems attributable to defendant. Plaintiff charged that on October 10, 1983, defendant directed it not to proceed on the sludge grinding system and that directions to continue the project were not given until June 28, 1984. Plaintiff further charged that defendant issued a change order without extending the time within which the modification should be completed. Plaintiff asserted that these actions and others by defendant caused delay damages and that it incurred extra work as a direct result of these problems.

Plaintiff filed a complaint against defendant seeking declaratory relief for damages resulting from the delays and interference with its performance. The complaint was filed before the contract was substantially performed and sought “equitable adjustments” in the contract price and performance time totaling $4,300,000.

On January 17, 1989, defendant filed a motion for partial summary judgment. Defendant alleged that plaintiff was precluded from receiving an “equitable adjustment” to the contract under the “suspension of work” clause of the Federal appendix to the contract, and that plaintiff’s delay damages were limited by article 27 of the general conditions provisions.

On January 27, 1989, the trial court granted defendant’s motion for partial summary judgment. The court held that article 27 of the general conditions applied to the suspension of work “equitable adjustment” provision of the contract; therefore, plaintiff’s damages for delay were precluded. The court also held that the exclusionary language of article 27 applied to the provision covering “changes and differing site conditions.” Thereafter, plaintiff filed a motion to reconsider and a motion requesting leave to file an amended complaint. These motions were denied. The parties reached a settlement; however, they reserved the right to appeal the court’s January 27, 1989, ruling. On July 11, 1989, plaintiff filed its appeal.

Plaintiff argues on appeal that the trial court erred in finding that the “no damages for delay” general conditions provisions of the contract barred it from recovering under one of the “equitable adjustment” provisions of the same contract. Defendant does not deny that the delays complained of were attributable to it; however, defendant maintains that any recovery was properly limited by the language of article 27 of the general conditions of the contract and the “suspension of work” clause in the Federal appendix to the contract.

Article 27 of the general conditions of the contract provides in pertinent part:

“Should the contractor be obstructed or delayed in the commencement, prosecution or completion of the work hereunder by any act or delay of the Sanitary District, or by inability, with the exercise of due diligence; to obtain necessary railroad and transportation facilities, *** the times fixed in the Agreement for the completion of said work to the extent specified shall be extended for a period equivalent to the time lost by reason of any of the aforesaid causes mentioned ***.
* * *
The Contractor shall not be entitled to any damages or compensation from the Sanitary District except on account of any delay or delays resulting from any act or delay of the Sanitary District or other parties under contract with the Sanitary District, and such damages shall be limited solely to premiums actually paid by the Contractor on his bond and for wages and salaries of employees and other extra expenses of the Contractor that are necessary only for the proper maintenance of the work and of the plant and equipment of the Contractor during or on account only of a delay or delays caused by the Sanitary District or other contractors for said Sanitary District.”

The “suspension of work” clause provides:

“(b) If the performance of all or any part of the work is suspended, delayed or interrupted for an unreasonable period of time by an act of the recipient in administration of this subagreement, an adjustment shall be made for any increase in the cost of performance of this subagreement (excluding profit) necessarily caused by such unreasonable suspension, delay or interruption and the contract modified in writing. However, no adjustment shall be made under this clause for any suspension, delay or interruption'to the extent ***. *** (2) for which an equitable adjustment is provided for or excluded under any other provision of this subagreement.”

The appendix to the contract defines “subagreement” as:

“A written agreement between an EPA recipient and another party (other than another public agency) and any lower tier agreement for services, supplies, equipment, or construction necessary to completé the project. Subagreement includefs] contracts and subcontracts for personal, and' professional services, agreements with consultants, and purchase orders.”

Plaintiff contends that the clause contained in the suspension of work “equitable adjustment” provision refers solely to the other provisions contained in the appendix, and not to the general conditions of the contract. Plaintiff maintains that there are only three provisions of the contract which refer to “equitable adjustment” and that all three are contained in appendix B. He argues that because article 27 of the general conditions' does not use the term “equitable adjustment,” the “suspension of work” clause cannot be construed to refer to article 27.

It is a well-established principle in the law of contracts that a construction should be adopted which harmonizes all the various parts so that no provision is deemed conflicting with or repugnant to, or neutralizing of any other. (Zannis v. Lake Shore Radiologists, Ltd. (1979), 73 Ill. App. 3d 901, 906, 392 N.E.2d 126.) Clauses in construction contracts limiting damages are in the public interest by protecting public agencies against vexatious litigation based on claims, real or fancied, that the agency has been responsible for unreasonable delays. Anthony P. Miller, Inc. v. Wilmington Housing Authority (1958), 165 F. Supp. 275.

In this case, the contract in dispute involved delays in a construction project. As a recipient of EPA funding for the construction project, plaintiff was bound by the appendix to that contract, specifically, the “suspension of work” clause. The “suspension of work” clause is a federally required provision which is included in all construction contracts that receive EPA funding. That clause clearly states that no “equitable adjustment” for delays will be made if an adjustment is provided for or excluded under any other provision of the subagreement. As stated earlier, a subagreement is defined in the appendix as a written agreement between an EPA recipient and any lower tier agreement for services, supplies, equipment or construction necessary to complete the project.

Plaintiff maintains that this provision should be read to apply only to Federal clauses and not to the entire contract. Plaintiff offers no authority to support this assertion, and we do not feel compelled to construe the language of the “work suspension” clause to impose that restriction. If the “suspension of work” clause was intended only to refer to Federal clauses, it could easily have so stated.

Having determined that the “suspension of work” clause is not limited in its application to only Federal clauses, we discuss whether that clause is applicable to the general conditions of the contract, article 27. Plaintiff maintains that because the term “equitable adjustment” is not used in article 27, this court cannot interpret the “suspension of work” provision to refer to that article. Plaintiff asserts that defendant drafted the contract and could have specified in unambiguous terms that no “equitable adjustment” would be granted for delay.

As we noted earlier, the general conditions of the contract, specifically article 27, limit a contractor’s recovery for delay damage.

“Recovery is limited to premiums actually paid by the contractor on his bond and for wages and salaries of employees and other extra expenses of the contractor that are necessary only for the proper maintenance of the work and of the plant and equipment of the contractor during or because of the defendant’s delay.”

Plaintiff cites C.H. Leavell & Co. v. United States (1976), 530 F.2d 878, for the proposition that the Federal government provides a contractual basis to compensate contractors for government-caused delays by incorporating an “equitable adjustment” provision in its construction contracts. Plaintiff also cites S.N. Nielson Co. v. Public Building Comm’n (1980), 81 Ill. 2d 290, 410 N.E.2d 40, for the proposition that contractual remedies should be broadly construed to achieve their intended goal. However, here the contractual remedy for delay was specifically included in article 27. Therefore, we find no need to broadly construe the contractual remedies.

In Granite Construction v. MSDGC (N.E. Ill. 1982), No. 80 C 5877, plaintiff argued that delay damages should have been calculated pursuant to the Federal “suspension of work” clause instead of article 27 of the contract because the two provisions conflicted with each other. The court held that the clauses did not conflict and that article 27 controlled the measure of delay damages.

Plaintiff’s reliance on C.H. Leavell & Co. is unpersuasive. In that case, the clauses at issue were the “work suspension” clause and the “funds available” clause. The “funds available” clause provided that in the event that there were not sufficient funds to cover the project, the owner was not liable for damage caused by any resulting delay. The court held that the “funds available” clause did not bar the contractor from receiving an “equitable adjustment.” That case is distinguishable from the instant case, In this case, defendant directed plaintiff to discontinue its work on the construction project and also issued a change order further delaying completion of the project. Moreover, the defendant’s contract here specifically stated what damages were recoverable if the project was delayed by defendant.

Plaintiff’s reliance on Ruffin Woody & Associates, Inc. v. Person County (1988), 92 N.C. App. 129, 374 S.E.2d 165, is also misplaced. The contract there made the architect’s decisions subject to arbitration and mandated arbitration of all claims or disputes unless the parties mutually agreed otherwise. However, the general conditions provision of the contract provided that the architect/engineer’s decision was “final and conclusive, except as herein otherwise expressly provided.” The court determined that there was a conflict between the provisions and that the general conditions controlled.

In this case, we find no conflict between the general conditions of the contract and the Federal appendix or “work suspension” provision. Further, unlike the contract in Ruffin, the Federal “suspension of work” clause in this contract clearly, allowed for an “equitable adjustment” to be provided or excluded by any other provision in the contract. Moreover, Illinois and Federal courts have recognized that the amounts recoverable under an “equitable adjustment” clause can be limited by other provisions of the contract. (Blinderman Construction Co. v. MSDGC (1988), No. 82 CH 1183; Granite Construction v. MSDGC (N.E. Ill. 1982), No. 80 C 5877.) Therefore, we hold that the general conditions provisions of the contract did not conflict with the “suspension of work” provisions and that plaintiff’s recovery for delay damages was properly limited by article 27 of the general conditions provisions.

Plaintiff argues in the alternative that its remedy for delay damages is not precluded by other provisions of the “equitable adjustment” clauses. Plaintiff relies on the “changes and differing site conditions” provisions and contends that its complaint seeks to recover costs created by changes that led to disruption and delay.

We again point out that the Federal “changes” and “changed conditions” clauses of the contract here provide for an “equitable adjustment” where the contractor performs unspecified extra work. However, the damages recoverable in that instance are set forth in articles 7 and 8 of the general conditions and provide that the contractor may recover cost of labor plus 15% markup, the cost of materials plus 10% markup, and the actual cost of equipment. This measure of damages has been held to apply to construction contracts. (Walsh Construction Co. v. MSDGC (1980), No. 79 L 5832.) For the foregoing reasons, we find that plaintiff’s recovery was properly limited by the general conditions provisions of the contract.

Plaintiff next argues that the trial court erred in denying it leave to file an amended complaint. Specifically, plaintiff asserts that by granting partial summary judgment in favor of defendant, the judgment rendered was nonfinal and capable of being amended.

The right of a party to amend its complaint is a matter within the sound discretion of the trial court. (Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 335 N.E.2d 10.) In order that litigants may fully present their causes of action and settle their controversies on the merits, the greatest liberality should be provided in allowing amendments. (Ryan v. Mobil Oil Corp. (1987), 157 Ill. App. 3d 1069, 510 N.E.2d 1162.) The court’s determination will not be disturbed on appeal except where there is a clear or manifest abuse of that discretion. Baker v. Walker (1988), 173 Ill. App. 3d 836, 528 N.E.2d 5.

Here, the plaintiff initially sought a motion for partial summary judgment to determine if the damages recoverable by it would be calculated in accordance with the terms of the contract provisions. The court ruled that the damages were limited by the contract provisions. Plaintiff sought leave to amend its complaint by alleging bad faith. This occurred after discovery was closed and the case was prepared for trial. There is no evidence in the record to support a pleading of bad faith, nor did the evidence that plaintiff produced support this allegation. Every contract implies good faith and fair dealing between the parties to it, and where an instrument is susceptible of two conflicting constructions, one which imputes bad faith to one of the parties and the other does, not, the latter construction should be adopted. Pierce v. MacNeal Memorial Hospital Association (1977), 46 Ill. App. 3d 42, 360 N.E.2d 551.

Because the evidence produced by plaintiff did not support an allegation of bad faith, we cannot say that the trial court abused its discretion in failing to allow plaintiff to amend its complaint.

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

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE WELCH

text:
    FLORA BANK AND TRUST, Plaintiff-Appellant, v. MICHAEL L. CZYZEWSKI et al., Defendants-Appellees (Unknown Owners et al., Defendants).
    Fifth District
    No. 5—90—0763
    Opinion filed December 26,1991.

      John R. Meyer, of Meyer & Meyer, of Flora, for appellant.
    Mark Tungate, of Flora, for appellee Angela K. Czyzewski Wooley.
    No brief filed for appellee Michael Czyzewski.
   JUSTICE WELCH

delivered the opinion of the court:

Flora Bank & Trust appeals from a judgment of the circuit court of Fayette County, entered October 30, 1990, which barred deficiency judgments against Michael L. Czyzewski and Angela K. Czyzewski Wooley (appellees) in the bank’s mortgage foreclosure action against them. The pertinent facts are as follows.

On March 21, 1990, Flora Bank & Trust (hereinafter Bank) filed a complaint for foreclosure against appellees, seeking to foreclose its mortgage lien on a residence owned by appellees. The complaint alleges that the amount of the original indebtedness was $18,000, that appellees were in default under the terms of the mortgage, and that the total amount due was $17,012.55, plus interest and costs. The complaint further alleges that both appellees are personally liable for any deficiency. The complaint prays for a judgment of foreclosure and a personal judgment for any deficiency, as well as authorization for a judicial sale of the property.

On May 11, 1990, a judgment was entered by the circuit court of Fayette County pursuant to a stipulation entered into between Bank and each appellee. The stipulation provides that appellees admit all of the allegations of the complaint for foreclosure, that appellees have agreed to execute and deliver to Bank deeds conveying their respective interests in the property- to Bank and that said deeds shall be made subject to the terms and provisions of the stipulation and judgment to be entered, and that appellees waive all rights of homestead and rights of redemption. Finally, the stipulation provides that the judgment is approved by the appellees and that appellees consent to entry of said judgment. The stipulation is dated May 3, 1990, and is signed by appellee Wooley and her attorney, Mark Tungate, and by appellee Czyzewski, as well as by the attorney for Bank. Appellee Czyzewski was not represented by counsel at the time he executed the stipulation.

The judgment entered upon the stipulation finds that the stipulation was entered into freely and voluntarily and is not unconscionable. The judgment further finds that the stipulation should be approved and that a judgment and order should be entered in accordance with said stipulation and that the court should retain jurisdiction of the cause for the purpose of enforcing all the terms of the judgment. The judgment finds that there was due to Bank from the appellees the sum of $18,861.92. The judgment ordered that appellees be barred .from the right of redemption, that the mortgaged real estate be sold by Bank at public auction, and that said sale shall be to satisfy the amount due the Bank as set forth in the judgment. The terms of the sale were set forth. The manner of the disposition of the proceeds of the sale was set forth and included the provision that any surplus would be remitted to the appellees. Finally, the judgment provides that if the money arising from the sale is insufficient to pay the amount due Bank, the person conducting the sale shall specify the amount of the deficiency in the report of sale and a judgment shall be entered therefor.

On June 13, 1990, a report of sale was filed by the Bank’s attorney indicating that the property had sold at auction for the sum of $4,600. The report indicated that, in the opinion of Bank, the property was worth substantially more than this amount and that the sale should be disapproved and the property be resold with a fixed minimum price. Appellee Wooley also filed an objection to the sale for the reason that the property was worth substantially more than $4,600.

On June 29, 1990, appellee Czyzewski filed a motion to bar entry of deficiency judgment. The motion alleges that appellee had executed and delivered to Bank a deed in lieu of foreclosure, that section 15— 1401 of the Illinois Mortgage Foreclosure Law (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1401) provides that Bank’s acceptance of a deed in lieu of foreclosure relieves all persons from personal liability on the debt except to the extent a person agrees not to be so relieved in an instrument executed contemporaneously, and that appellee did not contemporaneously execute any such instrument. On July 31, 1990, appellee Wooley filed a similar motion to bar entry of deficiency judgment. On August 2, 1990, appellee Wooley filed an amendment to her motion to bar entry of deficiency judgment, alleging that appellee Wooley did, in fact, execute an instrument contemporaneously with her execution of the deed in lieu of foreclosure but that that instrument is vague and ambiguous as to whether appellee could be held liable for a deficiency. Because the instrument was drafted by Bank, any ambiguity should be construed against Bank and in favor of appellee. Therefore, appellee argued, she was not liable for a deficiency.

On August 6, 1990, the court entered an order disapproving the sale and ordering that the property be resold. The court refused to set a minimum price.

On September 26, 1990, a second report of sale was filed by Bank’s attorney indicating that the property had sold at auction for the sum of $7,600 and that a deficiency of $12,469.41 existed. The report prayed that the sale be approved and that a deficiency judgment be entered.

On October 2, 1990, appellee Czyzewski filed a motion to bar entry of deficiency judgment similar to the motion he had previously filed. On October 4, 1990, appellee Wooley also filed a motion to bar entry of deficiency judgment similar to her amended motion previously filed.

Hearing was held on these motions on October 4, 1990. Appellee Czyzewski’s attorney pointed out three paragraphs of the stipulated judgment which bear on the point at issue.

Paragraph 3 of that judgment provides as follows:

“(3) The mortgaged real estate shall be sold by Plaintiff. That Plaintiff may either employ an auctioneer or use either an officer of the bank or the bank’s attorney to conduct the sale. That the sale of said premises shall be for cash with twenty percent of the sale price to be paid on the date of the public sale and the balance of the purchase price to be paid upon delivery of the deed by Plaintiff to purchaser within ten days of the date of the sale. That the abstracts of title covering said premises owned by Michael L. Czyzewski and Angela K. Czyzewski Wooley which are now in the possession of the Plaintiff and the supplemental abstract obtained by Plaintiff in connection with the preparation of the Complaint in this case shall be delivered to the purchaser at said sale. That said sale shall be to satisfy the amount due the Plaintiff as set forth in this judgment together with interest thereon at the statutory judgment rate from the date of this judgment.” (Emphasis added.)

Paragraph 17 provides as follows:

“(17) The proceeds resulting from the sale ordered herein shall be applied in the following order:
(a) The reasonable expenses of sale, including but not limited to abstract costs, any necessary title insurance costs, publication of notices and advertising costs, auctioneer’s costs, insurance on the premises, both prior to and after the filing of the Complaint to the time of the delivery of the deed to the purchaser, and the fees of Plaintiff’s attorney in connection with such sale;
(b) The reasonable expenses of holding, maintaining and preparing the real estate for sale, including premiums on hazard and liability insurance;
(c) Satisfaction of the mortgage indebtedness of Plaintiff including its costs in this proceeding-, and
(d) Remittance of any surplus to the mortgagors.” (Emphasis added.)

Appellee Czyzewski’s counsel argued that the italicized language clearly indicates that the sale of the property is to satisfy in full the amount due from appellee to Bank.

Paragraph 21 provides:

“(21) If the money arising from said sale shall be insufficient to pay the amounts due to Plaintiff with interest and the costs and expenses of sale, the person conducting the sale shall specify the amount of such deficiency in the report of sale and a judgment shall be entered therefore.”

Appellee’s counsel argued that, because his client was unrepresented by counsel at the time he entered into the stipulation, he could not have understood the import of the language of paragraph 21. He argued that the purpose of the new Illinois Mortgage Foreclosure Law was to protect the consumer and that if one who gives a deed in lieu of foreclosure is to also be held personally liable, it should be crystal clear from the instrument executed. The language of paragraph 21 is not crystal clear to a lay person. Finally, Czyzewski’s attorney argued that, if Czyzewski remains personally liable for a deficiency, he received no consideration for execution of the deed in lieu of foreclosure.

Counsel for appellee Wooley argued that the judgment entered on the stipulation is ambiguous in that paragraph 3 provides that the sale of the property shall satisfy the indebtedness while paragraph 21 provides for a deficiency judgment in the event the sale proceeds are insufficient to satisfy the debt.

Attorney for the Bank argued that the deeds executed by appellees were not deeds in lieu of foreclosure. Instead, he argued, the stipulations were entered into in settlement of the foreclosure action and that by signing the stipulations appellees admitted all the allegations of the foreclosure complaint, including that they were liable for any deficiency. Attorney for Bank argued that the Bank proceeded to foreclose on the property, which would not have been necessary had it taken deeds in lieu of foreclosure. The judicial sale was held in order to establish judicially what the amount of the deficiency was and to thereby protect the appellees. That, Bank’s counsel argued, was the consideration received by appellees in return for executing the stipulation and deeds.

On October 30, 1990, an order confirming the sale was entered by the circuit court of Fayette County. This order found that the judgment entered pursuant to stipulation of the parties was ambiguous in its terms as to whether or not a deficiency was to be entered and that this ambiguity must be construed against the party who drafted the document, the Bank, and in favor of appellees. The judgment further found that there would have been no reason for appellees to execute the deeds if they had not presumed that no deficiency judgment would be entered against them. Appellees’ motions to bar entry of deficiency judgments were granted. The sale of the property was approved, and deficiency judgments against appellees were barred.

Bank appeals the order barring any deficiency judgment. The parties repeat on appeal the arguments they made before the trial court. We reverse the judgment of the circuit court because we find that, regardless of whether the quit-claim deeds executed by appellees are viewed as deeds in lieu of foreclosure, the appellees signed a contemporaneous agreement to remain liable for any deficiency and we find no ambiguity in that agreement.

Section 15 — 1401 of the Illinois Mortgage Foreclosure Law provides that acceptance of a deed in lieu of foreclosure shall relieve from personal liability all persons who may owe payment or the performance of other obligations secured by the mortgage except to the extent a person agrees not to be relieved in an instrument executed contemporaneously. (Ill. Rev. Stat. 1989, ch. 110, par. 15 — 1401.) The parties in the instant case take opposing views as to whether the quitclaim deeds executed by appellees conveying their interests in the subject real estate to Bank constitute deeds in lieu of foreclosure. Appellees insist that they are, in fact, deeds in lieu of foreclosure, while Bank insists that they are not. We think the answer to this question is irrelevant for we find that, contemporaneously with their execution of the quit-claim deeds, appellees executed an instrument, the stipulation which incorporated the judgment of May 11, 1990, in which they agreed not to be relieved of personal liability for the debt secured by the mortgage. While the trial court found this instrument to be ambiguous with respect to whether appellees remained personally liable, we disagree.

The judgment entered by the court on May 11, 1990, pursuant to the stipulation of the parties constituted a consent judgment. (See People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 438 N.E.2d 1273.) Such judgments are considered contracts between the parties to the litigation, and accordingly, the law of contracts controls their interpretation. (Citizens Utilities Co. v. Centex-Winston Corp. (1989), 185 Ill. App. 3d 610, 613, 541 N.E.2d 681, 683.) Like any other contract, consent judgments must be construed to give effect to the intention of the parties which, when there is no ambiguity in the terms of the judgment, must be determined from the language of the judgment alone. (Carvallo v. Carvallo (1978), 62 Ill. App. 3d 394, 397-98, 378 N.E.2d 1288, 1291.) Furthermore, ambiguous contractual language is generally construed against the drafter of the language. Duldulao v. St. Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 493, 505 N.E.2d 314, 319.

Appellees argue, and the trial court found, that the conflicting language in paragraph 3 and paragraph 21 creates an ambiguity which must be construed against the drafter of the instrument, the Bank. An instrument is ambiguous only if the language used is reasonably or fairly susceptible to having more than one meaning, but it is not ambiguous if a court can discover its meaning simply through knowledge of those facts which give it meaning as gleaned from the general language of the contract. (Gardner v. Padro (1987), 164 Ill. App. 3d 449, 453, 517 N.E.2d 1131, 1133.) A contract is not rendered ambiguous simply because the parties do not agree on the meaning of its terms. (Gardner, 164 Ill. App. 3d at 453, 517 N.E.2d at 1133.) In determining whether an ambiguity exists, the court must construe the contract as a whole. L.K. Comstock & Co. v. Morse/UBM Joint Venture (1987), 153 Ill. App. 3d 475, 480, 505 N.E.2d 1253, 1257.

We find no conflict between paragraphs 3 and 21 and therefore no ambiguity in the terms of the judgment. Appellees argue that the last sentence of paragraph 3, which states that the judicial sale shall be to satisfy the amount due the Bank, reasonably means that the judicial sale shall satisfy in full the debt owed by appellees to Bank. We do not find this to be a reasonable interpretation of this sentence. We think it is clear, from reading paragraph 3 as a whole and the judgment itself as a whole, that the last sentence of paragraph 3 merely states the purpose of the judicial sale but does not mean that the judicial sale shall satisfy the indebtedness in full regardless of the amount of the proceeds. Paragraph 3 of the judgment begins by ordering that the real property be sold. It then proceeds to set forth the manner of sale and the terms thereof. It concludes by setting forth the purpose of the sale, that is, to satisfy the amount due by appellees to Bank. Paragraph 17 of the judgment provides for the manner of distribution of the proceeds of the judicial sale. After having paid the expenses of the sale and of preparing and maintaining the property for sale, the proceeds are to be applied to satisfaction of the mortgage indebtedness. After satisfaction of the indebtedness, any surplus proceeds are to be remitted to appellees. Finally, paragraph 21 clearly provides for a deficiency judgment against appellees.

Appellees would have us interpret the last sentence of paragraph 3 and subparagraph c of paragraph 17 as meaning that the sale shall be in full satisfaction of the indebtedness. We do not think that this is a fair or reasonable interpretation of this language. A court should not search for an ambiguity where there is none. (TDC Development Corp. v. First Federal Savings & Loan Association (1990), 204 Ill. App. 3d 170, 175, 561 N.E.2d 1142, 1145.) Paragraph 21 of the judgment clearly provides for a deficiency judgment against appellees in the event the sale proceeds are insufficient to satisfy the indebtedness. We find no language in the judgment which conflicts with this paragraph or creates an ambiguity in the terms of the judgment.

Absent ambiguity in the terms of the consent judgment, the intent of the parties must be ascertained solely from the instrument itself and extrinsic evidence will not be admitted. (Manor Healthcare Corp. v. Soiltest, Inc. (1989), 192 Ill. App. 3d 934, 940, 549 N.E.2d 719, 724.) Looking at the language of the consent judgment, it appears that the parties intended that, should the proceeds of the judicial sale be insufficient to satisfy the indebtedness, a deficiency judgment would be entered against the appellees. The trial court’s finding that there would have been no reason for appellees to execute the quit-claim deeds had they not assumed that no deficiency judgment would be entered against them is improper where there is no ambiguity in the terms of the contract, for in such a case, the intent of the parties to the contract must be determined from the language of the instrument alone. The language of the instrument indicates that the intent of the parties was that any surplus proceeds over and above the amount of the indebtedness would be remitted to appellees and the amount of any deficiency would be entered as a judgment against appellees.

Because we find no conflict or ambiguity in the terms of the consent judgment, and because we find that the language of that judgment indicates the parties’ intention that if a deficiency existed a judgment would be entered against appellees, we reverse the judgment of the circuit court of Fayette County.

For the foregoing reasons, the judgment of the circuit court of Fayette County is reversed and this cause is remanded for a determination of the amount of the deficiency and entry of a judgment against appellees and in favor of Bank in that amount.

Reversed and remanded.

HARRISON and LEWIS, JJ., concur.


author: JUSTICE INGLIS JUSTICE GEIGER,

text:
    LEO F. ZIMMER et al., Plaintiffs-Appellants, v. EUGENIO J. MELENDEZ, Defendant-Appellee.
    Second District
    No. 2—91—0443
    Opinion filed December 17, 1991.
    Rehearing denied January 22,1992.

      GEIGER, J., dissenting.
    John Bernard Cashion and Robert H. Hanaford, both of Chicago, for appellants.
    Clifford M. Panek and Keely Truax, both of Parrillo, Weiss & O’Halloran, of Chicago, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, Leo and Lavergne Zimmer, appeal from a jury verdict against defendant, Eugenio J. Melendez, for $2,500. The issues on appeal are (1) whether the trial court erred in refusing to tender plaintiffs’ jury instruction defining “society and companionship” for loss of consortium; (2) whether the trial court erred in barring evidence of future medical treatment and expenses; and (3) whether damages awarded to plaintiffs were inadequate. We affirm in part, reverse in part and remand.

On February 12, 1989, plaintiffs, residents of Wisconsin, were driving southbound on Skokie Valley Highway in Highland Park, lilinois, on their way to Florida. The vehicle was stopped for a light at the intersection of Skokie Valley Highway and Clavey Road. While stopped, the plaintiffs’ vehicle was hit by the defendant’s vehicle. Defendant’s vehicle sideswiped the right side of plaintiffs’ vehicle after careening off a truck. Defendant had also been traveling southbound.

The police arrived and completed the accident report. Leo did not indicate to the police officer that he hurt his shoulder, but mentioned a sore back. The plaintiffs’ vehicle was towed away. The vehicle was repaired in approximately seven hours, and plaintiffs continued on to Florida. While in Florida, Leo experienced shoulder pain. His daughter, a nurse, put hot packs on his shoulder to help relieve the pain. Leo did not see a doctor during the five-week period he remained in Florida.

After returning to Wisconsin, Leo went to a general practitioner, Dr. Asinas. Dr. Asinas told Leo that he had a sprained shoulder. In April 1989, Dr. Asinas referred Leo to Dr. Shivaram, an orthopedic surgeon. Dr. Shivaram testified that Leo had full range of motion with his right shoulder, but was experiencing pain. Dr. Shivaram’s diagnosis was a rotator cuff tear. Leo saw Dr. Shivaram three more times, the last time in August 1989. The condition of Leo’s shoulder was unchanged. Dr. Shivaram’s prognosis was a 10% permanent partial disability of the right shoulder.

Dr. Shivaram also testified at his evidence deposition that he believed Leo needed to have surgery to repair the torn rotator cuff. He opined that the cost of the surgery would be about $5,000 to $6,000. This evidence was barred by the trial judge and not read to the jury at trial.

Leo sought no additional medical treatment after August 1989. He testified that he had difficulty performing routine tasks and his recreational skills had diminished. Leo also testified that his condition affected his ability to work on his lawn care business.

Plaintiffs filed suit on February 23, 1990, seeking compensation for Leo’s medical expenses, pain and suffering and lost wages. Count II of the complaint sought loss of consortium damages for Lavergne. The trial commenced on January 29, 30 and 31, 1991, solely on the issue of damages. The jury awarded Leo $2,500 for his special and general damages. Lavergne was awarded nothing for loss of consortium. Post-trial motions were denied on March 22, 1991. Plaintiffs filed a timely appeal.

First, the court will address a procedural matter raised by the defendant. Defendant argues in his brief that the plaintiffs’ statement of facts and arguments which cite to the record should be stricken because the record was not properly certified. Defendant was not served with a copy of plaintiffs’ written request for preparation of the report of proceedings. Also, defendant was not notified by the court reporter that the report of proceedings was complete and ready for filing. Defendant argues that plaintiffs’ actions violated Supreme Court Rules 323(a) and (b) (134 Ill. 2d Rules 323(a), (b)). Defendant claims that he was prejudiced by this error in that this court has before it an incomplete and uncertified record.

This argument is essentially the same argument presented in defendant’s motion to strike plaintiffs’ brief or dismiss the appeal. The motion was filed two days after the defendant’s brief was filed. The motion was denied' by this court.

Certification of the report of proceedings is not a jurisdictional requirement to an appeal. (Sakellariadis v. Spanos (1987), 163 Ill. App. 3d 1084, 1088.) A reviewing court may treat the report of proceedings as certified if no prejudice is alleged by the appellee. (Sakellariadis, 163 Ill. App. 3d at 1088.) Defendant has alleged prejudice, but we have reviewed the entire report of proceedings and find it to be complete. No prejudice will result in treating the report of proceedings as properly certified.

The first substantive issue we will address is plaintiffs’ contention that the trial judge erred in refusing to tender a jury instruction defining “society and companionship.” On September 30, 1991, this court granted a motion allowing plaintiffs to supplement the record to include a copy of the tendered and refused jury instruction. As such, the disputed instruction is part of the record.

Plaintiffs argue that the phrase “society and companionship” is not a phrase of common usage. Thus, the jurors needed the phrase defined in an instruction. Plaintiffs cite Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, a wrongful death case in which “society” was defined in an instruction. The Appellate Court, First District, found the definition generally reflected that of “society” in wrongful death actions and allowed the instruction. Singh, 165 Ill. App. 3d at 933.

The trial court has considerable discretion to determine the form in which jury instructions shall be given. (Soderquist v. St. Charles Mall Associates, Ltd. (1988), 177 Ill. App. 3d 207, 222.) The existence of a pattern instruction does not automatically preclude the use of a nonpattern instruction. (Soderquist, 177 Ill. App. 3d at 222.) But, a party has no right to submit an instruction if another instruction has adequately covered the subject. Reed v. Northwestern Publishing Co. (1988), 124 Ill. 2d 495, 520-21.

Here, plaintiffs’ tendered and refused instruction No. 8 was a nonpattern jury instruction:

“When I use the expression ‘society and companionship’ I refer to the broad range of family benefits which one member receives from the other including love, affection, attention, comfort, protection and services.”

Plaintiffs’ instruction No. 7, which was given by the trial court, was a modification of Illinois Pattern Jury Instructions, Civil, No. 32.01 (3d ed. 1991) (hereinafter IPI Civil 3d), which included a claim for loss of consortium:

“The reasonable value of the society and companionship with her husband of which she has been deprived [and] the society and companionship with her husband of which she is reasonably certain to be deprived in the future.”

This phrase is similar to IPI Civil 3d No. 32.04, which defines loss of consortium:

“The reasonable value of the society, companionship and sexual relationship with his wife of which he has been deprived [and the society, companionship and sexual relationship with his wife of which he is reasonably certain to be deprived in the future].”

“Society” in IPI Civil 3d No. 31.11, an instruction in wrongful death cases, is defined to include “companionship.” All other instructions in the wrongful death section of the instructions manual refer only to “loss of society,” necessitating a definition of the term “society” for laymen. In plaintiffs’ instruction No. 7, “loss of consortium” is defined as the value of “society and companionship." (Emphasis added.) The inclusion of the term “companionship” makes the definition of “loss of consortium” understandable to a layman. Thus, we hold that the trial judge did not abuse his discretion in disallowing plaintiffs’ instruction No. 8 defining “society and companionship.”

Plaintiff next contends that the trial court erred in barring evidence of future medical treatment and expenses. In the appendix of his brief, defendant includes copies of defendant’s request for production and plaintiffs’ answers to interrogatories. These are the same items that defendant attempted to make part of the record on appeal in his motion to supplement the record. The motion was denied without prejudice. Defendant was allowed to refile the motion with an affidavit stating that the materials to be added to the record were originally filed with the trial court. This was not done. Attachments to briefs not included in the record are not properly before the reviewing court and cannot be used to supplement the record. (People v. Lutz (1982), 103 Ill. App. 3d 976, 979.) Thus, the court -will not rely on material in the appendix or the references to those materials within defendant’s brief.

The trial judge barred the evidence of future medical treatment and expenses because plaintiffs’ pretrial attorney allegedly unreasonably refused to comply with discovery. Plaintiffs had a different attorney who tried the case. The pretrial attorney allegedly did not produce for defendant’s counsel a letter written by Dr. Shivaram that stated Leo needed surgery and that it would cost $5,000 to $6,000. Plaintiffs’ pretrial counsel sent the letter to representatives of Safeway Insurance Company, defendant’s insurance company, when an earlier settlement was being discussed.

Further, plaintiffs allegedly failed to inform defendant of future medical procedures and expenses in answers to defendant’s interrogatories. Defendant asked plaintiffs to “[sjtate any and all other expenses or losses you claim as a result of said occurrence.” Plaintiffs’ answer included only additional expenses incurred by plaintiffs on their drive to Florida as a result of the accident. Those expenses were additional hotel and meal bills.

In contrast to plaintiffs’ failures above, defendant’s counsel had in his possession a copy of a medical report completed by Dr. Shivaram on June 13, 1990. This was received in response to defendant’s request for production of documents. In it, Dr. Shivaram writes that Leo “shows evidence of rotator cuff tear” and that “rotator cuff repair [is required].”

Supreme Court Rule 219(c) provides that if a party unreasonably refuses to comply with discovery, the court may, among other remedies, bar a witness from testifying about the issue in question. (134 Ill. 2d R. 219(c).) Imposing sanctions is a matter within the trial court’s discretion and should not be disturbed on review unless the court abused its discretion. (Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 196.) The purpose of the sanctions is to effect discovery, not to punish the uncooperative party. (Kubian, 178 Ill. App. 3d at 196.) Factors which may be used to determine the propriety of sanctions include:

“[T]he surprise to the opposing party, the prejudicial effect of the testimony, the diligence of the opposing party in seeking discovery, timely objection to the testimony and the good faith of the party offering the testimony. [Citation.] No one factor is determinative.” Hawkins v. Wiggins (1980), 92 Ill. App. 3d 278, 283.

Using the above-described factors, we find that the trial court abused its discretion in barring evidence of future medical treatment and expenses. Defendant’s counsel could not have been very surprised when Dr. Shivaram testified at his evidence deposition that Leo needed shoulder surgery. Defendant’s counsel had in his possession a medical report completed by Dr. Shivaram stating that “rotator cuff repair” was required. This was produced by plaintiffs’ counsel on December 14, 1990, over one month before Dr. Shivaram’s evidence deposition.

Also, the prejudicial effect of Dr. Shivaram’s testimony is minimal because the need for rotator cuff repair was already disclosed. Defendant was not aware that future shoulder repair would cost $5,000 to $6,000. But with the knowledge that surgery was needed, defendant could have discovered the cost of surgery. He could have propounded a supplemental interrogatory or deposed Dr. Shivaram for discovery purposes before taking his evidence deposition on January 17, 1991.

Defendant argues that he asked for the cost of surgery in one of his interrogatories. The interrogatory in question asked plaintiffs to “[sjtate any and all other expenses or losses as a result of said occurrence.” Plaintiffs interpreted the interrogatory as asking what consequential damages were suffered as a result of the accident, such as additional hotel and meal expenses. This interpretation of the interrogatory is not unreasonable based on the open-endedness of the question. Rule 219(c) allows sanctions for “unreasonably” refusing to comply with discovery. We find that the answer to this interrogatory was not a conscious refusal to comply with discovery.

A main point of dispute between the parties is the letter written by Dr. Shivaram to plaintiffs’ pretrial counsel, which was sent to the Safeway Insurance Company. Plaintiffs argue that defendant’s counsel is “house counsel” for Safeway, so counsel must have obtained a copy of the letter. Although there is no evidence to support that claim, the mere fact that the letter was sent to Safeway shows that plaintiffs were not hiding the letter. We do not condone the conduct of plaintiffs’ pretrial counsel in failing to produce the letter directly to defendant’s counsel. But, this error does not constitute bad faith on plaintiffs’ part or an unreasonable refusal to comply with discovery. Thus, we hold that the trial court abused its discretion in barring evidence of future medical treatment and expenses.

Plaintiffs’ final contention is that the damages awarded to them were inadequate. In light of our resolution of the issues discussed above, we need not reach this issue.

The ruling of the trial court on plaintiffs’ instruction No. 8 is affirmed. The trial court’s ruling barring evidence of future medical treatment and expenses is reversed. The judgment of $2,500 for plaintiffs is vacated. The cause is remanded for further proceedings.

BOWMAN, J., concurs.

JUSTICE GEIGER,

dissenting:

I respectfully dissent. If our system of judicial dispute resolution is to function effectively, it is crucial that the parties availing themselves of that system deal with each other in good faith. The rules that govern pretrial discovery were conceived to provide each side with full disclosure of the underlying facts in a case so that both sides can realistically evaluate the case. The days of trial by ambush should be long past, and complete disclosure should be the norm.

In the present case, there is no doubt that the plaintiffs failed to set out the claimed future medical treatment or its anticipated cost in answers to the defendant’s interrogatories. The trial court evaluated that omission at the hearing on a properly made motion to bar and determined that the plaintiffs’ conduct required the sanction of barring the testimony.

It is the trial judge who has the responsibility of managing the trial call. (Amoco Oil Co. v. Segall (1983), 118 Ill. App. 3d 1002, 1012.) It is the trial judge who has day-to-day familiarity with the parties’ conduct in the case and who can best decide if the discovery rules’ spirit is being respected. This court should intervene only if the trial court has clearly abused its discretion either in evaluating compliance with discovery (see Webb v. Angell (1987), 155 Ill. App. 3d 848, 860), or in setting proper sanctions when it has determined that there are discovery violations (Kubian v. Labinsky (1988), 178 Ill. App. 3d 191, 196).

Here, the majority would find that the trial judge abused his discretion. With that finding it may, in fact, be ruling that, as a matter of law, production of a medical report to the defendant’s insurance company prior both to filing of litigation and to the defendant’s retention of counsel satisfies subsequent discovery related to all items so produced. I believe that that ruling is well beyond the scope of the existing rules.

I am aware of no authority that an insured should be charged with knowledge of information in the hands of his insurance carrier. I also am unaware of authority that considers an insurance company to be an agent for its insured. Further, the supreme court rules do not provide for a party in litigation to answer interrogatories by sending copies to an insurance company which is not itself a party to the litigation. This court should not create a rule of law that the transfer of information to a defendant’s insurer satisfies the requirements of discovery and renders a trial court’s decision to the contrary an abuse of discretion.

If the majority does not intend to create a new rule of law, I believe that it is then reevaluating the facts in the case and concluding that the trial court was wrong in its determination of the good faith of the plaintiff. In that case, I believe that the court ignores the applicable standard of review. I would find that there is sufficient evidence to support the lower court’s determination that there was a lack of good faith and would affirm the court’s discovery sanction.


author: JUSTICE CAMPBELL

text:
    LEONARD CHAVIN, Plaintiff-Appellee, v. GENERAL EMPLOYMENT ENTERPRISES, INC., et al., Defendants-Appellants. — HARRY LEWIS, Plaintiff-Appellee, v. GENERAL EMPLOYMENT ENTERPRISES, INC., et al., Defendants-Appellants.
    First District (1st Division)
    Nos. 1—90—3430, 1—90—3483, 1—90—3694 cons.
    Opinion filed September 16, 1991.
    Modified on denial of rehearing January 13, 1992.

      Schiff, Hardin & Waite, of Chicago (Walter C. Greenough and Robert D. Campbell, of counsel), for appellants.
    Katten, Muchin & Zavis, of Chicago, and Wechsler, Skirnick, Harwood, Halebian & Feffer, of New York, New York (Donald E. Egan, Bonita L. Stone, Stuart D. Wechsler, and Andrew D. Friedman, of counsel), for appellee Harry Lewis.
    Hopkins & Sutter, of Chicago (Peter B. Freeman, Michael A. Ficaro, Christopher W. Zibart, and Russell E. Marsh, of counsel), for appellee Leonard Chavin.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This is a consolidated appeal. Defendants, General Employment Enterprises, Inc. (GEE); and Herbert E Imhoff, Herbert F. Imhoff, Jr., Walter T. Kerwin, Jr., Philip A. Piety, Anthony F. Spadaro and Howard S. Wilcox, as directors of GEE, appeal from orders entered by the trial court on November 28, 1990, and on December 6, 1990, both of which granted a preliminary injunction to plaintiffs, Leonard Chavin and Harry Lewis, enjoining defendants from implementing GEE’s “Share Purchase Rights Plan” (the Plan) and from an order entered on December 20, 1990, permanently enjoining defendants from implementing the Plan.

On appeal, defendants contend that: (1) the trial court erred in holding that the Plan violated the constitutional guarantee of cumulative voting provided in the Illinois Constitution of 1870 (the 1870 Constitution) and in section 8 of the transition schedule of the Illinois Constitution of 1970 (the 1970 Constitution); and (2) the parties should be returned to the status quo that existed before the preliminary injunction was entered. While the appeal was pending, plaintiffs filed a motion with this court to dismiss defendants’ consolidated appeal from the preliminary injunction on the ground that the permanent injunction rendered the appeal moot. The motion was taken with this appeal. For the following reasons, plaintiffs’ motion to dismiss defendants’ consolidated appeal from the preliminary injunction is denied, the judgment of the trial court is reversed, and the cause is remanded for further proceedings.

The record sets forth the following facts relevant to this appeal. GEE is a publicly traded Illinois corporation, engaged in the business of providing personnel services through a network of employment agencies in major cities in the United States and Canada. Plaintiffs Leonard Chavin and Harry Lewis are shareholders of GEE. At the time the complaints were filed, Chavin was the second largest shareholder of GEE, owning approximately 9.4% of GEE’s issued and outstanding common shares.

Prior to February 12, 1990, GEE’s articles of incorporation authorized the issuance of five million common shares and 100,000 preferred shares. Pursuant to article XI, section 3, of the 1870 Constitution, in effect when GEE was incorporated, GEE’s articles of incorporation and bylaws provide for the election of the six-member board of directors by cumulative votes.

Between January 19 and February 6, 1990, Chavin, together with other individuals (the Chavin Group), purchased 85,000 common shares of GEE, representing approximately 5% of the outstanding voting power of GEE. The members of the Chavin Group orally agreed to vote their common shares as Chavin requested. On February 17, 1990, Chavin filed a schedule 13D with the United States Securities and Exchange Commission, on behalf of the Chavin Group. The schedule 13D filing indicated the Chavin Group’s acquisition of the common shares for investment purposes and indicated their intent to acquire an undetermined amount of additional GEE shares. Schedule 13D further stated that the Chavin Group, along with other investors, were considering whether to seek control of GEE. Between February 8, 1990, and June 22, 1990, Chavin purchased additional GEE common shares, including some owned by other members of the Chavin Group.

On February 7, 1990, defendants received a copy of the Chavin Group’s schedule 13D, which disclosed that the Chavin Group had acquired 5% of GEE’s outstanding common shares, intended to increase their investment and were considering whether to seek control of GEE. On February 12, 1990, the GEE board of directors unanimously adopted a “poison pill” plan, designated the “Share Purchase Rights Plan” (the Plan), which included the creation of series A junior participating preferred shares (the Preferred Shares), having voting rights of 100 votes per share. Pursuant to the Plan, the board of directors authorized the issuance of and declared a dividend distribution of one preferred share purchase right (the Right) for each common share outstanding as of February 22, 1990, including the shares owned by the Chavin Group. Each Right represented a right to purchase one Vioo of a preferred share and a right to purchase additional common shares of GEE stock at 50% of the current market price per common share upon terms and conditions set forth in the Rights agreement.

Plaintiffs described the operation of the Plan as follows:

“20.1 The Rights are attached to all common share certificates without distribution of any separate rights certificate and are exercisable only under specified conditions.
20.2 The Rights are exercisable only after a shareholder who had acquired 5% or more of GEE’s voting power after December 31, 1989 has increased ownership to 10% or more of the voting power.
20.3 If any person acquires 5% or more of the voting power of GEE after December 31, 1989, and thereafter becomes the beneficial owner of 10 %• or more of the voting power, all other shareholders have the right to acquire the number of newly issued common shares of GEE having a market value equal twice the exercise price of the right, which is $12.
20.4 At any time after the Rights become exercisable for common shares, the Board of Directors may exchange each unexercised Right, other than the Rights beneficially owned by the person acquiring 10% or more of the voting power, for a newly-issued common share.
20.5 The Rights of any shareholder who acquired 5% or more of the stock after December 31, 1989, and thereafter increased ownership of voting power to 10% or more automatically become null and void. As a result, such shareholder forfeits all rights to acquire additional common shares or to exchange his Rights for common shares on the same terms and conditions accorded by the Plan to every other shareholder.
20.6 GEE may redeem the Rights at a price of one cent per Right.
21. The purpose of the Plan is to prevent and penalize the acquisition of over 10% of the common shares of GEE by any individual or group desiring to make an investment in GEE sufficient to elect one or more members of the Board of Directors. The natural and necessary effect of the Plan is to entrench the Directors in their positions by erecting a substantial barrier to the acquisition of more than 10% of GEE’s common shares.
21.1 The Plan accomplishes its purposes and effects by automatically working a forfeiture of shareholder Rights, which drastically reduces the voting power and economic value of common shares of any minority shareholder who acquires 10% or more of GEE’s voting power.
21.2 The Plan automatically reduces the investment of a minority shareholder regardless of whether the shareholder (a) has acquired sufficient shares to elect a single director, or (b) has either the intent or ability to acquire sufficient voting power to control GEE.”

On June 15, 1990, Chavin filed a two-count verified complaint, seeking declaratory and injunctive relief. Count I alleged that the Plan violated Chavin’s constitutional guarantee of cumulative voting and sought a declaration that the Plan was invalid, injunctive relief, attorney fees and costs. Count II alleged a breach of fiduciary duty by the directors. On June 25, 1990, Lewis filed a two-count class action suit against defendants, alleging breach of fiduciary duty (count I) and violation of the constitutional guarantee of cumulative voting (count II). Lewis sought declaratory relief, injunctive relief, compensatory damages, attorney fees and costs. Subsequently, defendants moved to dismiss both complaints on the ground that they could only be brought derivatively. The trial court granted the motions to dismiss with leave for plaintiffs to file amended complaints.

Plaintiffs then filed amended complaints which included derivative action allegations. Defendants again moved to dismiss the amended complaints. However, the trial court denied the motions. Subsequently, Chavin moved for a preliminary injunction to prevent implementation of the Plan. In an order entered on November 28, 1990, the trial court granted the preliminary injunction, denied defendants’ requests to stay the preliminary injunction pending appeal and to require Chavin to sell any GEE shares over 10% in the event the preliminary injunction is reversed or vacated, and consolidated Chavin’s action and Lewis’ action. On the same day that the order was entered, defendants filed their notice of appeal. Thereafter, on December 5, 1990, plaintiffs presented an oral motion to the trial court requesting that the November 28, 1990, order be amended to conform to the specificity requirements of section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 11 — 101). In addition, plaintiffs sought leave to file instanter their motion for judgment on the pleadings as to the count alleging that the Plan was unconstitutional and sought a permanent injunction to prevent implementation of the Plan. The trial court granted plaintiffs leave to file the motion for judgment on the pleadings instanter and gave defendants 14 days to respond. On December 6, 1990, the trial court entered the second order granting a preliminary injunction to prevent implementation of the Plan, adding the statutorily required specificity that had not been included in the November 28, 1990, order. Defendants then filed- a notice of appeal from the December 6, 1990, order and moved to consolidate the appeals.

In an order dated December 20,. 1990, the trial court entered judgment in favor of Chavin (count I) and Lewis (count II), concluding that the Plan was void, invalid, unconstitutional and ultra vires and permanently enjoining implementation of the Plan. Defendants filed their notice of appeal from the December 20, 1990, order and moved to consolidate the appeals. Consolidation was granted.

Preliminarily, we shall address the issue of whether the trial court had jurisdiction to enter the December 6, 1990, order after defendants had filed their notice of appeal from the November 28, 1990, order. This issue is raised sua sponte by this court. Ordinarily, the filing of a notice of appeal divests the trial court of jurisdiction to enter further orders of substance in a cause. (Dwyer v. Graham (1982), 110 Ill. App. 3d 316, 319, 442 N.E.2d 298.) However, where the trial court’s subsequent order is merely explanatory and does not change the substance of the earlier order so as to present a new case to the appellate court, the subsequent order is a valid exercise of the trial court’s jurisdiction. (City of Chicago v. Scandia Books, Inc. (1981), 102 Ill. App. 3d 292, 430 N.E.2d 14.) In City of Chicago, on August 20, 1980, the trial court entered an order permanently enjoining defendants from using their premises as an adult bookstore. Subsequently, on December 10, 1980, plaintiff filed a petition for rule to show cause, claiming that defendants were in violation of the court’s order. At the hearing on the rule to show cause, the parties presented arguments as to the definition of an adult bookstore. Following the hearing, the trial court entered its order, dated January 23, 1981, explaining the order of August 20, 1980. Defendants then appealed from both orders. On appeal, one of the issues raised was whether the trial court’s order of January 23, 1981, which amended its order of August 20, 1980, was void on the ground that it was an invalid exercise of judicial authority. Based on its conclusion that a trial court’s post-appeal jurisdiction is not completely abrogated by the filing of a notice of appeal in all circumstances, the reviewing court held that the January 23, 1981, order was a valid order in that it merely explained the earlier order and did not present a new case to the reviewing court. 102 Ill. App. 3d at 298.

Similarly, in the present case, on November 28, 1990, the trial court entered an order granting plaintiffs’ motion for a preliminary injunction as to implementation of the Plan. The order stated:

“This cause coming to be heard on Plaintiff’s motion for a preliminary judgment, the Court having considered the briefs and arguments of the parties,
IT IS HEREBY ORDERED that Plaintiffs’ motion is granted.
IT IS FURTHER ORDERED that Defendants’ request that Chavin be required to sell any shares of GEE over 10% in the event the granting of the preliminary injunction is reversed or vacated is denied.
IT IS FURTHER ORDERED that this matter be consolidated with the case of Lewis v. GEE, 90 CH 6209 to which the preliminary injunction also applies as does the remainder of their order.”

On December 5, 1990, recognizing that the order did not conform to the specificity requirements of section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 11 — 101), counsel for plaintiffs requested that the court enter a more specific order. The next day, December 6, 1990, the trial court entered its second preliminary injunction order, which included the requisite specificity. As in City of Chicago, the December 6, 1990, order did not change the substance of the earlier order so as to present a new case. Instead, it explained the earlier order and set forth the specifics of the injunction. Accordingly, under these circumstances, we find that the trial court had jurisdiction to enter the December 6, 1990, order.

Next, we shall address plaintiffs’ motion to dismiss defendants’ appeal from the preliminary injunction. On December 20, 1990, two weeks after the second preliminary injunction order was entered, the trial court entered an order permanently enjoining implementation of the Plan. By that date, defendants had already filed a notice of appeal from the two earlier orders and had filed their brief with this court on the preliminary injunction issue. Plaintiffs then filed a motion with this court to dismiss defendants’ consolidated appeal from the preliminary injunction order on the ground that the permanent injunction rendered the appeal moot. This court ruled that the motion would be taken with the appeal. Defendants urge this court to deny the motion on the grounds that the issues raised in the appeal from the preliminary injunction are identical to those raised in the appeal from the order of permanent injunction. For reasons other than those argued by defendants, the motion to dismiss the appeal from the preliminary injunction orders is denied.

A moot case is one which: (1) seeks to determine an abstract question which does not rest on existing facts or rights; (2) seeks a judgment on a pretended controversy; (3) seeks a decision in advance regarding a right that has not yet been asserted and contested; or (4) seeks a judgment upon some matter, which, when rendered, has no practical legal effect on an existing controversy. If a substantial issue or question remains in the case, the cause is not moot. City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 380 N.E.2d 1106.

In the present case, although the preliminary injunction was terminated by entry of the permanent injunction, this act did not remove all matters in controversy. (In re Marriage of Grauer (1985), 133 Ill. App. 3d 1019, 479 N.E.2d 982.) Regardless of the propriety of the permanent injunction, if the preliminary injunction should be found to have been improperly granted, defendants would be able to seek damages for injuries accrued during the period in which the preliminary injunction was in effect. Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 483 N.E.2d 1271; Knapp v. Palos Community Hospital (1988), 176 Ill. App. 3d 1012, 531 N.E.2d 989; In re Marriage of Grauer (1985), 133 Ill. App. 3d 1019, 479 N.E.2d 982; Ill. Rev. Stat. 1989, ch. 110, par. 11 — 101.

Plaintiffs’ reliance on City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App. 3d 417, 380 N.E.2d 1106, as support for their position that the issue as to the preliminary injunction is moot is misplaced. In Airline Canteen, the trial court entered a temporary restraining order (TRO). The trial court then denied defendants’ motion to dissolve the TRO and granted the City’s motion for a preliminary injunction which provided essentially the same relief previously provided by the TRO. Defendants appealed the denial of their motion to dissolve the TRO. The reviewing court held that the issue regarding the trial court’s refusal to dissolve the TRO was rendered moot by expiration of that order. The court’s determination was predicated on the fact that defendants had “failed to suggest even the remote possibility of damages flowing from the grant of the TRO, *** [and] the record [did not] indicate the possibility of any damages.” (64 Ill. App. 3d at 431.) Because no damages had been alleged, the Airline Canteen court concluded that a reversal by the reviewing court would have no practical effect on the controversy. By contrast, in the present case, defendants have alleged damages incurred during the period following entry of the preliminary injunction and preceding entry of the permanent injunction. Specifically, Chavin had purchased GEE shares in excess of the Plan’s 10% maximum during that period. Therefore, if the preliminary injunction is found to have been wrongfully entered, the issue of damages remains a matter in controversy.

Next, defendants contend that the trial court erred in holding that the Plan violated the constitutional guarantee of cumulative voting provided in the 1870 Constitution and in section 8 of the transition schedule of the 1970 Constitution. Defendants argue that the Plan does not contravene the constitutional requirement that directors be elected by cumulative voting because all GEE shareholders continue to have the right to vote their shares on a cumulative basis under the Plan. In response, plaintiffs argue that the Plan was specifically designed “to take away voting power from certain shareholders” by preventing “a minority shareholder from acquiring and voting enough shares to elect even a single member of the GEE board of directors.” Plaintiffs’ argument is predicated on two erroneous constructions of the 1870 Constitution and the transition schedule. First, contrary to plaintiffs’ argument, the constitutional guarantee of cumulative voting does not guarantee a particular voting strength; and, second, every minority shareholder is not guaranteed the right to elect one director.

GEE was incorporated in 1962. At that time, the 1870 Constitution was in effect. Article XI, section 3, of the 1870 Constitution addressed the election of directors of corporations and provided:

“The general assembly shall provide, by law, that in all elections for directors or managers of incorporated companies, every stockholder shall have the right to vote, in person or by proxy, for the number of shares of stock owned by him, for as many persons as there are directors or managers to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares of stock shall equal, or to distribute them on the same principle among as many candidates as he shall think fit; and such directors or managers shall not be elected in any other manner.” (Ill. Const. 1870, art. XI, §3.)

Thereafter, the 1970 Constitution was adopted, which eliminated the requirement that corporations provide for cumulative voting. In conjunction with the 1970 Constitution, a transition schedule was also adopted to ease the transition from the 1870 Constitution to the 1970 Constitution. Pursuant to section 8 of the transition schedule, shareholders of corporations organized under the 1870 Constitution shall retain their right to vote cumulatively for directors unless they elect to do otherwise.

Although the cumulative voting section affords a minority shareholder protection in proportion to its voting strength, it does not insure a voting strength which is precisely proportionate to stock ownership. (Wolfson v. Avery (1955), 6 Ill. 2d 78, 87, 94, 126 N.E.2d 701.) In Wolfson, plaintiff shareholder filed a complaint seeking a declaratory judgment that section 35 of the Illinois Business Corporation Act (IBCA) (Ill. Rev. Stat. 1953, ch. 32, par. 157.35), which purported to authorize the classification of directors into more than three classes and the election of one class annually, was unconstitutional and void; and that defendant company’s bylaws, adopted pursuant to section 35, were unlawful. Plaintiff contended that the classification of directors and their election for staggered terms permitted by section 35 violated article XI, section 3, of the 1870 Constitution, which guaranteed shareholders the right to cumulate their votes in the election of directors. The trial court granted plaintiffs’ motion for judgment on the pleadings, and defendants appealed directly to the supreme court on the grounds that a construction of the constitution and the validity of a statute were involved.

In affirming the judgment of the trial court, the supreme court recognized that the actual operation of the constitutional guarantee to cumulative voting in a particular situation will depend upon three variables: “the total number of shares, the number held by the stockholder, and the number of directors.” (Wolfson, 6 Ill. 2d at 87-88.) The court further stated that while these variables were inherent in the constitutional guarantee, a variable regarding the classification of directors by terms was not. Instead, the plain language of section 35 contemplated a right to vote cumulatively for the total number of directors at one time. Accordingly, the Wolfson court held that section 35 of the IBCA conflicted not only with the purpose of affording proportional representation, but also with the natural effect of the constitutional language. 6 Ill. 2d at 94-95.

Unlike the staggered term provision at issue in Wolfson, the Plan in the present case does not introduce a new variable factor to the constitutional guarantee of cumulative voting. Instead, the Plan affects only those variables inherent in the 1870 Constitution: the total number of shares and the number of shares held by the shareholders. Accordingly, under the Wolfson analysis, the Plan does not conflict with the right to cumulative voting guaranteed by the 1870 Constitution.

Moreover, the Plan’s impact on the inherent variables is similar to the impact other corporate activities authorized by the IBCA have on those variables: limitation or elimination of cumulative voting rights (section 7.40(c)); elimination of shareholders’ preemptive rights (section 6.50); and increase or decrease in number of directors (section 8.10). Similar to implementation of the Plan, each of these activities directly impacts on a shareholder’s voting strength, but does not preclude the right to cumulative voting.

Further, the parameters of Wolfson were narrowly drawn by the supreme court in Roanoke Agency, Inc. v. Edgar (1984), 101 Ill. 2d 315, 461 N.E.2d 1365. In Roanoke, plaintiff corporation amended its articles of incorporation to provide for the issuance of nonvoting shares of corporate stock and forwarded its amended articles to defendant, the Secretary of State, for filing. Defendant refused to file and approve the amendments on the ground that the amendments would contravene the constitutional guarantee to cumulative voting provided in section 8 of the transition schedule to the 1970 Constitution. Plaintiff sought leave of the supreme court to file a petition for an original writ of mandamus against defendant to compel approval and filing, and simultaneously filed a complaint for judicial review in the circuit court. The supreme court denied leave to file a petition for an original writ, but ordered the circuit court to expedite the administrative review proceeding. The circuit court entered judgment for plaintiff and ordered defendant to file the amended articles as submitted. Defendant appealed directly to the supreme court.

The Roanoke court examined the history of cumulative voting in Illinois from the constitutional guarantee set forth in the 1870 Constitution to the elimination of the mandate in the 1970 Constitution, including the proviso set forth in section 8 of the transition schedule to the 1970 Constitution which provided that shareholders of corporations organized under the mandate of the 1870 Constitution shall retain their right to elect directors by cumulative voting. The Roanoke court then held that: (1) section 8 of the transition schedule applied to all shareholders of all Illinois corporations organized prior to July 1, 1971, regardless of when the shares were acquired, and (2) such rights may be waived upon the unanimous approval of all shareholders entitled to vote at the election of directors. 101 Ill. 2d at 328-29.

In reaching its decision, the Roanoke court took special note of the shift of public policy away from cumulative voting:

“We believe that the public policy of this State regarding cumulative voting by corporate shareholders underwent a dramatic change with the adoption of the 1970 Constitution. The cumulative voting guarantees have been deleted from the Constitution, which left the matter to the legislature, and it has amended the applicable statutes to eliminate prospectively all cumulative voting rights. Clearly, in our judgment, public policy no longer requires cumulative voting in the election of corporate directors or prohibits direct or indirect limitations thereon. Thus, the underpinnings of this court’s previous decisions have been substantially eroded, if not completely eliminated.” (101 Ill. 2d 327-28.)

Roanoke lends further support to the conclusion that the Plan in the present case is not rendered unconstitutional by any impact it may have on plaintiffs’ voting strength. The Roanoke court specifically states that public policy no longer prohibits any “direct or indirect” limitations on the right to cumulative voting. Certainly, the Plan does not directly impact on cumulative voting because that right still exists with the Plan in place. The only viable concern is the indirect impact in the nature of voting strength, for which there has never been a constitutional guarantee. Accordingly, we conclude that the Plan is not an unconstitutional infringement on the right to cumulative voting.

Furthermore, the trial court’s finding that the Plan is unconstitutional would put the constitutionality of section 6.05 of the IBCA into question. Section 6.05 authorizes poison pill plans such as the one at issue in the present case and provides, in pertinent part:

“Notwithstanding anything contained in Sections 6.10 and 7.40 of this Act, except as otherwise provided in the articles of incorporation, a corporation may create and issue, whether or not in connection with the issue and sale of its shares or bonds, rights or options entitling the holders thereof to purchase from the corporation, upon such consideration, terms and conditions as may be fixed by the board, shares of any class or series, whether authorized but unissued shares, previously existing treasury shares or shares to be purchased or acquired, notes of the corporation or assets of the corporation. The terms and conditions of such rights or options may include, without limitation, restrictions or conditions that preclude or limit the exercise, transfer or receipt of such rights or options by any person or persons owning or offering to acquire a specified number or percentage of the outstanding common shares or other securities of the corporation, or any transferee or transferees of any such person or persons, or that invalidate or void such rights or options held by any such person or persons or any such transferee or transferees. Any such rights or options heretofore created or issued prior to the effective date of this amendatory Act of 1989 which are in conformity with this Section 6.05 and are not otherwise in conflict with other provisions of this Act, are hereby ratified. Nothing in this Section 6.05 shall affect the rights and fiduciary obligations of the board of directors or a corporation in the creation and issuance of such rights or options, or in the taking or failing to take any action with respect to such rights or options.” (Ill. Rev. Stat. 1989, ch. 32, par. 6.05.)

Because there is a presumption in favor of the constitutionality of legislative enactments (Sayles v. Thompson (1983), 99 Ill. 2d 122, 457 N.E.2d 440), any indirect attack on the constitutionality of section 6.05 should be closely scrutinized.

Accordingly, based upon the application of Wolfson v. Avery (1955), 6 Ill. 2d 78, 126 N.E.2d 701, and Roanoke Agency, Inc. v. Ed gar (1984), 101 Ill. 2d 315, 461 N.E.2d 1365, to the facts at bar, the plain language of section 6.05 of the IBCA, and the change in public policy regarding cumulative voting, we conclude that the Plan is neither unconstitutional nor ultra vires. Therefore, the trial court abused its discretion in granting plaintiffs’ motion for judgment on the pleadings and in enjoining implementation of the Plan.

We further find that the trial court abused its discretion in the manner in which the permanent injunction was entered. At the December 5, 1990, hearing on plaintiffs’ oral motion to modify the November 28, 1990, preliminary injunction order, plaintiffs also sought leave to file instanter their motion for judgment on the pleadings, predicated on the trial court’s finding that the Plan was unconstitutional. Thus, before the November 28, 1990, preliminary injunction order was even modified to include the required specificity, plaintiffs sought a permanent injunction based on the specific findings. The trial court granted plaintiffs leave to file the motion instanter and gave defendants 14 days to respond. In light of the fact that the November 28, 1990, order lacked the requisite specificity, a fact admitted to by the trial court as well as by counsel for plaintiffs, and the fact that there was no evidence of an emergency situation requiring an expedited permanent injunction, we find that the trial court abused its discretion in entering a permanent injunction approximately two weeks after the first preliminary injunction order was clarified.

Finally, defendants contend that the parties should be returned to the status quo that existed before the preliminary injunction was entered. As soon as the improper November 28, 1990, preliminary injunction order was entered, Chavin purchased GEE stock, increasing his holding beyond the 10% trigger of the Plan. Defendants request that this court require Chavin to divest himself of the amount of GEE stock he owns in excess of the 10% threshold and enjoin the voting of such stock. However, defendants offer no legal authority to support this request. Accordingly, this issue is waived for review on this appeal. 134 Ill. 2d R 341(e).

For the aforementioned reasons, plaintiffs’ motion to dismiss defendants’ consolidated appeal from the preliminary injunction is denied, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

BUCKLEY, P.J., and O’CONNOR, J., concur.

      GEE is both a named plaintiff and a named defendant in the underlying action. It is a named plaintiff to the extent that plaintiffs Leonard Chavin and Harry Lewis, GEE shareholders, filed the underlying action as a shareholders’ derivative suit. GEE is a named defendant to the extent that Chavin’s cause of action is brought by him individually against GEE and its directors and to the extent that Lewis’ class action is brought on behalf of others similarly situated against GEE and its directors.