author: JUSTICE NASH

text:
    SHERI L. RAMOS, Mother and Next Friend of Jennifer Lynn Ramos, a Minor, Plaintiff-Appellant, v. WAUKEGAN COMMUNITY UNIT SCHOOL DISTRICT NO. 60 et al., Defendants-Appellees.
    Second District
    No. 2 — 89—0173
    Opinion filed October 2, 1989.
    Bogdan Martinovich and C. Jeffrey Thut, both of Ray & Click, Ltd., of Libertyville, for appellant.

      Karen E. Wilson and Wayne F. Plaza, both of Rooks, Pitts & Poust, of Chicago, for appellees.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, Jennifer Lynn Ramos, by her mother and next friend, Sheri L. Ramos, filed a three-count complaint against defendants, Waukegan Community Unit School District No. 60 (the School District) and Donna Klaetsch, seeking to recover damages for injuries she sustained after tripping on a cracked sidewalk on the School District’s property. The trial court dismissed count I of the complaint, directed against the School District, pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619) on the basis that defendant was immune from liability for ordinary negligence, as alleged therein, under section 24 — 24 of the School Code (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 24) and section 3 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 106). The court also dismissed counts II and III of the amended complaint, finding that the facts alleged did not state a claim for willful and wanton misconduct. Plaintiff appeals, and we affirm.

Count I of the amended complaint alleged that defendant Klaetsch was employed as a teacher by the School District on the date of plaintiff’s alleged injury; that the School District had a duty to exercise ordinary care in the construction and maintenance of its property; and that plaintiff, a 10-year-old elementary school child, was injured as a direct and proximate cause of the School District’s negligence because it:

“a. Constructed a sidewalk on the grounds of the Clearview school which was cracked and uneven and in an unreasonably dangerous condition.
b. Allowed a sidewalk on the grounds of the Clearview school to become cracked and uneven causing an unreasonably dangerous condition.
c. Failed to repair a sidewalk on the grounds of the Clear-view school which was cracked and uneven causing an unreasonably dangerous condition;
d. Failed to place warnings or other markings around the sidewalk which would alert Plaintiff and other children to the unreasonably dangerous condition which existed;
e. Failed to warn Plaintiff that the sidewalk on school grounds was cracked and uneven and in an unreasonably dangerous condition.”

The trial judge dismissed count I on finding that the School District was statutorily immune from liability for ordinary negligence.

Count II of plaintiff’s amended complaint alleged that plaintiff was under the direct supervision and control of Klaetsch, who was employed as a teacher by the School District at the time of plaintiff’s alleged injury; that Klaetsch directed plaintiff to skip rope on a cracked sidewalk maintained by the School District knowing that it was in an unreasonably dangerous condition; that the School District through its employees was guilty of willful and wanton misconduct by requiring and directing plaintiff to skip rope on a cracked and uneven sidewalk knowing that the sidewalk was in an unreasonably dangerous and hazardous condition likely to cause plaintiff injury, and by failing to inspect, repair, or barricade the sidewalk, or warn plaintiff of its dangerous condition knowing that children skipping rope might fall or trip because of the sidewalk’s condition; and that a direct and proximate cause of the School District’s willful and wanton misconduct, plaintiff tripped and caught her foot on the uneven and cracked sidewalk causing her serious and permanent injuries. Count III of the amended complaint alleged that Klaetsch was guilty of willful and wanton misconduct in substantially the same language as in count II. Defendants moved to dismiss “pursuant to section 2 — 619 of the Code of Civil Procedure,” asserting that plaintiff failed to allege facts showing willful and wanton misconduct. Defendants argued that plaintiff did not allege facts showing that the sidewalk was in an unreasonably dangerous condition or that its condition was likely to cause plaintiff injury. The trial court agreed and dismissed, with prejudice, counts II and III of the amended complaint for failure to state a cause of action.

Initially, we note that defendants have erroneously characterized their motion to dismiss counts II and III of plaintiff’s amended complaint as brought pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). The motion should have been brought pursuant to section 2 — 615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) as it was premised upon a failure to state a cause of action.

Plaintiff contends first that the dismissal of count I was erroneous because the School District is not immune from liability for ordinary negligence under either section 24 — 24 of the School Code or section 3 — 106 of the Tort Immunity Act. Section 24 — 24 of the School Code provides:

“Maintenance of discipline. Teachers and other certificated educational employees shall maintain discipline in the schools ***. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils. This relationship shall extend to all activities connected with the school program, including all athletic and extracurricular programs ***.” (Ill. Rev. Stat. 1987, ch. 122, par. 24 — 24.)

As section 24 — 24 of the School Code confers parental status to teachers in matters relating to the discipline in and conduct of the schools and school children, it has been determined that a plaintiff must plead willful and wanton misconduct to maintain an action against a school or its teachers (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 172-73, 347 N.E.2d 705; Prest v. Sparta Community Unit School District No. 140 (1987), 157 Ill. App. 3d 569, 570, 510 N.E.2d 595), and plaintiff did not do so in count I of her amended complaint.

Plaintiff contends, relying on Gerrity v. Beatty (1978), 71 Ill. 2d 47, 373 N.E.2d 1323, that she need only plead and prove that the School District was guilty of ordinary negligence because any negligence on its part did not arise out of a student-teacher relationship but is based upon a theory of landowner’s premise liability. Relying on Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705, the School District argues that section 24 — 24 of the School Code provides immunity to school entities for all activities connected with the school program, including improper supervision and failure to supervise, unless willful and wanton misconduct is shown. The School District further argues that the construction and maintenance of the school sidewalk, and failure to warn plaintiff of its condition, are activities so closely connected with the operation of the school program that the two functions cannot be separated.

In Kobylanski, the court considered consolidated cases in which the plaintiffs were injured while participating in school gym classes. The plaintiffs sought recovery on the basis that the defendant teachers were negligent in failing to provide proper instruction and supervision during the classes. (Kobylanski, 63 Ill. 2d at 168-69.) The court concluded that section 24 — 24 of the School Code was intended to confer on teachers, and other certificated educational employees, the status of in loco parentis in nondisciplinary as well as disciplinary matters and held that the plaintiffs were thus required to prove willful and wanton misconduct. Kobylanski, 63 Ill. 2d at 172-73.

In Gerrity, the plaintiff alleged ordinary negligence on the part of the school district in furnishing him with an ill-fitting and inadequate football helmet. (Gerrity, 71 Ill. 2d at 49.) The court held that allegation to be sufficient and that section 24 — 24 of the School Code did not apply as the plaintiff had not alleged negligence arising out of the teacher-student relationship in matters relating to the supervision and control of the plaintiff. Plaintiff “instead alleged negligence in connection with what we consider to be the separate function of furnishing equipment which was alleged to be inadequate, ill fitting and defective.” Gerrity, 71 Ill. 2d at 52.

In the present case, as count I of the amended complaint was based on the theory of landowners’ premises liability, which is an entirely different function than the matters involved in the provisions of section 24 — 24 of the School Code (Prest v. Sparta Community Unit School District No. 140 (1987), 157 Ill. App. 3d 569, 571, 510 N.E.2d 595), the parental relationship standard will not apply, and allegations of ordinary negligence would be sufficient to state a cause of action.

We note that in Brock v. Rockridge Community Unit District No. 300 (1989), 183 Ill. App. 3d 447, 539 N.E.2d 445, a different result was reached. In that case, the plaintiff alleged that he was injured during a game of touch football because of the defendant’s negligence in failing to keep the school playing field in a reasonably safe condition; requiring the plaintiff to use an unreasonably dangerous playing field; and failing to warn the plaintiff of the dangerous contours of the field. (Brock, 183 Ill. App. 3d at 448.) There the Appellate Court for the Third District declined to follow Prest, finding that because it was the physical education teacher’s decision to play touch football on the school field, the teacher’s “supervision of classroom activities is not a separate and distinct function from the teacher-student relationship as stated in Gerrity”-, accordingly, the court found Kobylanski controlling. (Brock, 183 Ill. App. 3d at 450.) We decline to follow Brock as there is clearly a distinction between a complaint which alleges negligence by a teacher in the supervision of a student and one which alleges negligence of a property owner in the maintenance of its property. (See Brock, 183 Ill. App. 3d at 452 (Barry, J., specially concurring) (Kobylanski is not controlling where the alleged negligence relates to unsafe premises or equipment); cf. Bowers v. Du Page County Regional Board of School Trustees District No. 4 (1989), 183 Ill. App. 3d 367, 376, 539 N.E.2d 246 (allegations in a complaint of a direct teacher-student relationship involving the exercise of a teacher’s personal supervision of a child performing rope-climbing activities is distinguished from allegations relating to a school district’s negligence in supplying the plaintiff with defective equipment for use in a physical education class).) To hold otherwise would immunize a school from ordinary negligence in the care and maintenance of school property whenever a student is injured while participating in any school program, relief the legislature has not seen fit to offer to a school district.

We find further support for our holding in the established rule that although there may be more than one proximate cause of an injury, one guilty of negligence cannot avoid responsibility merely because another’s negligence also contributed to the same injury. (Sears v. Kois Brothers Equipment, Inc. (1982), 110 Ill. App. 3d 884, 889, 443 N.E.2d 214; cf. Davis v. City of Chicago (1972), 8 Ill. App. 3d 94, 97, 289 N.E.2d 250 (where a slippery condition is combined with a structural defect in a sidewalk, a public entity is liable for injuries which are proximately caused by the defect in the sidewalk).) Thus, even assuming the teacher, Klaetsch, was negligent in her supervision of plaintiff, which was not alleged in count I of the amended complaint, the School District cannot avoid liability under, section 24 — 24 of the School Code for its alleged separate negligence in maintaining its property. The trial court erred in dismissing count I of the complaint on that ground.

Plaintiff next contends as to count I that the trial court erred in finding that the School District was immune from liability for ordinary negligence under section 3 — 106 of the Tort Immunity Act, which provides:

“Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton misconduct proximately causing such injury.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 106.)

We agree with the trial court that section 3 — 106 of the Tort Immunity Act immunizes the School District from liability for ordinary negligence under the facts alleged in this case. Plaintiff was here alleged to have been using public property for a recreational purpose with the permission of her school teacher. She argues, however, that section 3 — 106 of the Tort Immunity Act does not apply because she was injured on the school sidewalk and not in a playground, park, or other area utilized for recreational purposes. We do not agree with the distinction sought to be made as at the time of plaintiff’s alleged injury, the sidewalk was, in fact, being used by her, at the direction of the teacher, for a recreational purpose. We note that the statute specifically states that its application is not limited to injuries occurring in playgrounds and parks.

Plaintiff’s reliance on Larson v. City of Chicago (1986), 142 Ill. App. 3d 81, 491 N.E.2d 165, is misplaced. In that case, the plaintiff was injured while roller-skating on a public sidewalk in a residential neighborhood in Chicago, Illinois. (Larson, 142 Ill. App. 3d at 83.) In finding that section 3 — 106 did not immunize the municipality from liability, the court considered that the purpose of section 3 — 106 of the Tort Immunity Act was “to encourage the development and maintenance of parks, playgrounds *** and similar areas. [Citation.] A public sidewalk in a residential neighborhood is not similar to a park or playground which are open areas designated by a governmental entity as being specifically intended for recreational purposes.”. (Larson, 142 Ill. App. 3d at 86-87.) We think that a distinction must be made where a child is injured on a school sidewalk while engaged in a recreational activity at the direction of a school teacher because of the common use of nonplayground school property to conduct such activities. Furthermore, the reviewing court’s suggestion in Larson that the public property must be specifically intended for recreational purposes is questionable in light of the express language in section 3 — 106 which immunizes a public entity for injuries which occur because of the existence of a condition on any public property intended or permitted to be used for a recreational purpose.

Plaintiff next contends that counts II and III of her amended complaint were improperly dismissed by the trial court because they do sufficiently state a cause of action for willful and wanton misconduct. We do not agree.

“To sufficiently plead wilful and wanton misconduct, a plaintiff must allege facts demonstrating the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. [Citation.] Fact pleading, as opposed to notice pleading, is required in Illinois; accordingly, a plaintiff must allege facts that are sufficient to bring his claim within the scope of the legally recognized cause of action. [Citation.] Only well-pleaded facts are admitted by a motion to dismiss, and the requirement that a complaint set forth facts necessary for recovery under the theory asserted is not satisfied, in the absence of the necessary allegations, by the general policy favoring the liberal construetion of pleadings.” (Tijerina v. Evans (1986), 150 Ill. App. 3d 288, 291, 501 N.E.2d 995.)

Willful and wanton misconduct may also be alleged, to have occurred intentionally or with a reckless disregard for the safety of others. For example, a failure, after knowing of an impending danger, to exercise ordinary care to prevent an injury or a failure to discover the danger because of recklessness or carelessness when the danger could have been discovered through ordinary care is willful and wanton. O’Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 469, 415 N.E.2d 1015.

Counts II and III of plaintiff’s amended complaint do not state a cause of action for willful and wanton misconduct as they do not contain sufficient factual allegations upon which such misconduct may be based. These counts state that the sidewalk was in an unreasonably dangerous and hazardous condition, but do not contain allegations of fact showing why it was unreasonably dangerous. While the amended complaint alleged that the sidewalk was cracked and uneven, it does not state facts showing why this cracked and uneven sidewalk was unreasonably dangerous or that defendants knew or should have known of its condition. For instance, the sidewalk may have had a hairline crack, which would not be actionable as slight inequalities or other minor defects in a sidewalk are not actionable. (West v. City of Hoopeston (1986), 146 Ill. App. 3d 538, 542, 497 N.E.2d 170.) If plaintiff’s complaint had alleged, and described, that the sidewalk had a substantial unevenness of its surface, it may have demonstrated that defendants acted intentionally or with a reckless disregard for the safety of others by directing children to play there. Cf. Majewski v. Chicago Park District (1988), 177 Ill. App. 3d 337, 341, 532 N.E.2d 409 (failure to plead facts showing why the defendant knew or should have known about broken glass on a football field required dismissal of the complaint as it contained no facts demonstrating a conscious disregard for the safety of others).

Plaintiff relies on Hadley v. Witt Unit School District 66 (1984), 123 Ill. App. 3d 19, 462 N.E.2d 877, and Scarano v. Town of Ela (1988), 166 Ill. App. 3d 184, 520 N.E.2d 62, which we find distinguishable.' In Hadley, the plaintiff was hammering a piece of scrap metal through a hole in an anvil during an industrial arts class when a metal chip flew into his eye, causing trauma and visual impairment. (Hadley, 123 Ill. App. 3d at 20.) The complaint also alleged, however, that plaintiff’s instructor was present and observed him hammering the metal, but failed to direct him to wear safety goggles, and the reviewing court held that it stated a claim for willful and wanton misconduct. (Hadley, 123 Ill. App. 3d at 23.) Unlike the facts alleged in this case, the dangers of hammering a piece of scrap metal through a hole in an anvil are obvious. Here, plaintiff did not describe the nature or extent of the crack or unevenness in the sidewalk.

In Scarano, the plaintiff alleged that the defendant owned, operated, and maintained a playground containing a slide. The slide was allegedly over six feet high, had no handrail between its parallel steps, had handrails that were worn and smooth, had loose handrails around the platform, had exposed metal and concrete footings, and was situated above a packed dirt and stone surface. The complaint alleged that other children had fallen from the slide on prior occasions due to the defects in it, and that defendant knew of such incidents. (Scarano, 166 Ill. App. 3d at 186.) The reviewing court held that the complaint stated a cause of action for willful and wanton misconduct because it alleged that on prior occasions other children had fallen from the slide because of its defective condition and that defendant knew of those incidents but failed to act to remedy the defects. (Scarano, 166 Ill. App. 3d at 191.) Here, there are no allegations in the amended complaint that others had been injured because of the sidewalk’s allegedly dangerous condition.

Because plaintiff’s complaint contains only conclusory allegations that the sidewalk was unreasonably dangerous and that defendants knew of its condition, the trial court’s dismissal of counts II and III of the amended complaint was not erroneous.

Accordingly, the judgment of the circuit court dismissing plaintiff’s amended complaint is affirmed.

Affirmed.

UNVERZAGT, P.J., and REINHARD, J., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG JUSTICE DUNN,

license: Public Domain

text:
      In re MARRIAGE OF JOHN CAREY, Petitioner, and CAROL CAREY, Respondent-Appellant (Mary Carey, Intervenor-Appellee).
    Second District
    No. 2 — 88—0890
    Opinion filed October 2, 1989.

      DUNN, J., dissenting.

      Botti, Marinaccio, DeSalvo & Tameling, Ltd., of Oak Brook (Eva W. Tameling, of counsel), for appellant.
    Law Offices of William J. Stogsdill, Jr., P.C., of Wheaton (Andrew M. Carter, of counsel), for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Respondent, Carol Carey, the natural mother of the minor child, Brendan Carey, and the former spouse of Brendan’s natural father, the deceased John Carey, appeals from the judgment of the circuit court of Du Page County finding in a modification of custody proceeding pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1987, ch. 40, par. 610) that it is in the best interests of Brendan to place permanent legal custody of Brendan with John Carey’s second wife and widow, Brendan’s stepmother, the intervenor, Mary Carey.

On August 1, 1964, John Carey (John) and Carol Carey (Carol) were married. Their marriage produced four children, Sean, Kathleen, Maureen and Brendan. In January 1980, Carol moved out of the marital residence in Wheaton, Illinois, and into an apartment, also located in Wheaton. The children lived with John in the marital residence. On September 14, 1981, the circuit court of Du Page County entered a judgment of dissolution of marriage which incorporated a settlement agreement entered between John and Carol. At the time of dissolution, Sean was 16 years old, Kathleen was 14, Maureen was 10 and Brendan was 6. The settlement agreement incorporated in the judgment of dissolution of marriage gave the care, custody and control of the children to John, with Carol having rights to reasonable visitation.

In the summer of 1980, John began dating Mary Carey (Mary). Mary spent considerable time with the children of John and Carol while dating John. In December 1981, Mary moved into John and the children’s home, and John and Mary were married on January 15, 1982.

In 1984, John, who like Mary, worked for the Internal Revenue Service, was transferred to Washington, D.C. John petitioned the court to remove the children from Illinois to the Washington, D.C., area. On October 30, 1984, the circuit court of Du Page County entered an order by agreement of John and Carol which provided in relevant part that John would retain “permanent custody” of the minor Brendan, age nine, and be allowed to move Brendan with him to the Washington, D.C., area. The agreed order also transferred the permanent custody of the minor Maureen, age 14, to Carol. The order set a liberal visitation schedule for John and Carol to see Maureen and Brendan. The two other children, Sean and Kathleen, had attained emancipation and were no longer the subject of custody arrangements between John and Carol.

John, his wife Mary, and Brendan moved to a suburb of Washington, D.C., located in Fairfax County, Virginia. A mother-son relationship developed between Brendan and his stepmother, Mary. Carol exercised her rights to visitation with her son Brendan, including 18 overnight visits in 1984. The situation remained this way until 1987.

In the early hours of Saturday, October 24, 1987, John Carey died. John did not leave a last will and testament. That afternoon Mary and Carol talked by phone. Carol, a teacher in the Chicago public school system, expressed her desire to come to Virginia that evening to get Brendan. Mary did not intend to allow Brendan to go with Carol. Carol did not go to Virginia that Saturday.

Within a few days of John’s death, Mary commenced proceedings in a circuit court for the county of Fairfax, Virginia, to obtain an order appointing Mary and Brendan’s paternal grandmother, Ann Carey, guardians of Brendan. Mary’s “Petition for Appointment of a Guardian” stated that Brendan, age 12, who had an estate of $500, had resided with his father, John, and his stepmother nearly six years, and in Fairfax County, Virginia, since 1984 and that John had died. The petition further stated that Carol Carey, a resident of Illinois, by an agreed order entered in the circuit court of Du Page County, Illinois, relinquished full legal custody of Brendan to John. The petition further stated that Brendan, the heir of his father’s estate, wished to continue to reside with Mary in Virginia. The notarized petition was signed by Mary and Ann Carey. On November 13, 1987, the circuit court of Fairfax County, Virginia, finding Brendan without a guardian and in need of a guardian, entered an order appointing Mary and Ann Carey temporary guardians of Brendan and his estate. Carol was not given notice of these proceedings.

On November 8, 1987, in the circuit court of Du Page County, Carol petitioned for an emergency modification of custody pursuant to section 610 of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 610). Mary was given notice of these proceedings and filed responsive pleadings. After the filing by Mary and Carol of various pleadings on January 6, 1988, Mary’s petition forum non conveniens was denied, the circuit court of Du Page County finding it had jurisdiction to make a custody determination under the Dissolution Act and the Uniform Child Custody Jurisdiction Act (the Child Custody Act) incorporated into the Dissolution Act. (See Ill. Rev. Stat. 1987, ch. 40, pars. 601(a), 2104.) The trial court gave leave to Mary to file her petition to intervene and other responsive pleadings. The January 6, 1988, order also provided for Mary, as coguardian, to maintain physical possession of Brendan pending a hearing on temporary custody which was set for February 5, 1988. Carol petitioned for and was granted reasonable visitation with Brendan in Virginia.

Mary filed a petition to intervene and also sought leave to file a counterpetition for permanent custody of Brendan. Carol filed pleadings seeking to dismiss Mary and strike her petition to intervene based upon Mary’s lack of standing under section 601 of the Dissolution Act. (Ill. Rev. Stat. 1987, ch. 40, par. 601.) On February 5, 1988, the court, having communicated with the court in Virginia, reiterated the fact it had jurisdiction under the Dissolution Act and the Child Custody Act and also refused to strike Mary's petition based on a lack of standing. The trial court, based upon Mary’s intention of seeking custody of Brendan, treated Mary’s petition to intervene as a petition for custody to which the standing requirements of section 601(b)(2) of the Dissolution Act applied (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)). The trial court also stated that Mary would bear the burden of showing the best interests of Brendan were to remain with her in Virginia. The trial court gave leave to Mary to file her counterpetition for custody and ordered Carol to respond. The order did not address temporary custody, but Brendan remained with Mary subject to Carol’s rights of visitation.

Discovery schedules were set and eventually a trial date was set for July 27, 1988, on the issue of Brendan’s best interests under section 602 of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 602). The burden to proceed was placed without objection upon Carol, apparently because she filed her petition for custody first. Shortly before trial, Carol filed a motion seeking an evidentiary hearing and reconsideration of whether Mary had standing to seek permanent custody under section 601 of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 601). On July 27, 1987, the day of trial, Judge Hayton, who was not the judge who originally found on February 5, 1988, that Mary had standing to seek custody, refused to reconsider the trial court’s prior finding and denied Carol’s motion.

At trial, Mary, Carol, their respective experts and a court-appointed psychologist testified. The trial court held an in camera interview of Brendan in which the trial court asked Brendan its own questions and in which various questions, submitted by both sides’ counsel and approved by the court, were asked. Neither party’s counsel was allowed to be present although both were given transcripts of the interview. At the close of the evidence, the trial court found that it was in the best interests of Brendan to place permanent custody with Mary subject to Carol’s liberal rights of visitation.

Initially, we must address the confusing and inadequate nature of Carol’s appellate brief. She has failed to comply with numerous requirements of Supreme Court Rule 341(e) (107 Ill. 2d R. 341(e)) governing the contents and substance of an appellant’s brief. Her statement of facts is replete with improper argument and characterizations of the record and is barely sufficient for an understanding of the issues raised on appeal. Additionally, the argument section of her appellant’s brief contains no citation to the record whatsoever in support of the numerous facts and questionable characterizations contained in her legal arguments. Further, her brief makes numerous statements of law with no supporting authority.

Rather than dismiss the appeal for failure to substantially comply with Supreme Court Rule 341(e), we will address the single issue for which Carol has cited legal authority and for which the facts necessary to understand the issue are simple and, for the most part, sufficiently stated in the statement of facts. (See Mead v. Board of Review (1986), 143 Ill. App. 3d 1088, 494 N.E.2d 171.) The other issues sought to be argued by Carol on appeal are waived for failure to comply with Supreme Court Rule 341(e)(7), concerning citation to the record and authority in support of the arguments contained in the appellate brief. Fuller v. Justice (1983), 117 Ill. App. 3d 933, 453 N.E.2d 1133 (a court of review is entitled to have the issues clearly defined and to be cited pertinent authority).

The only issue sufficiently raised and argued on appeal is whether the nonparent, Mary, had standing under section 601(b)(2) of the Dissolution Act to seek custody of Brendan under the best interests standard of the Dissolution Act. (See Ill. Rev. Stat. 1987, ch. 40, pars. 601(b)(2), 602.) Furthermore, we note that Carol does not argue on appeal that the trial court’s finding that the best interests of Brendan dictate custody be placed with Mary was an abuse of discretion or against the manifest weight of the evidence. In re Custody of Piccirilli (1980), 88 Ill. App. 3d 621, 626, 410 N.E.2d 1086, 1090.

Carol contends the trial court erred in finding that Mary had standing under section 601(b)(2) of the Dissolution Act to seek custody of Brendan under the best interests standard of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 601) in light of Carol’s superior right as a natural mother to custody of Brendan. Intervenor, Mary, argues that the trial court properly found that she had standing either under sections 601(b)(2) or 601(c) of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, pars. 601(b)(2), (c)) or under section 4 of the Child Custody Act (Ill. Rev. Stat. 1987, ch. 40, par. 2104).

We agree with Carol that, in order to seek custody of a child under the modification of custody procedures of the Dissolution Act, a nonparent seeking custody must meet the standing requirements of section 601(b)(2). (In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 524 N.E.2d 728.) Further, we do not find any standing requirement relating to a nonparent’s right to seek custody under the Child Custody Act as incorporated under the jurisdictional section of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 601(a)) that would ■lead us to conclude that the standing requirements of section 601(b)(2) were intended by the legislature to be inapplicable to a non-parent seeking custody just because such nonparent happens to reside outside Illinois. See In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 541, 440 N.E.2d 1036, 1040.

The superior rights of a natural parent to the care, custody and control of his or her child are well recognized in Illinois and embodied in our statutory law. (In re Custody of Peterson (1986), 112 Ill. 2d 48, 51, 491 N.E.2d 1150, 1152.) Under the Juvenile Court Act (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 1 et seq.) and the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501 et seq.), unless a natural parent consents or is judged “unfit,” a child may not be placed in the custody of a nonparent. (In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150.) However, under the Dissolution Act, a non-parent may obtain custody of a child if the best interests of the child so dictate without a showing that the natural parent is unfit. Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.) In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150.

Before a nonparent may proceed under the best interests standard of the Dissolution Act (see Ill. Rev. Stat. 1987, ch. 40, par. 602), the nonparent seeking custody must first show that he or she meets the standing requirements of section 601(b)(2) of the Dissolution Act. (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2); In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150; In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 524 N.E.2d 728 (nonparent seeking to intervene in proceedings pursuant to section 601(c) of the Dissolution Act must meet section 601(b)(2) standing requirement where intervenor nonparent seeks custody); see In re Person & Es tate of Newsome (1988), 173 Ill. App. 3d 376, 527 N.E.2d 524 (applied section 601(b)(2) standing requirement in probate proceedings to maternal grandparents who sought custody of child who had lived with and was in physical possession of man who lived with mother at time of mother’s death and claimed to be father).) The superior right of a natural parent to legal custody of his or her child is recognized and protected in the Dissolution Act by requiring a nonparent seeking custody to first meet the standing requirements of section 601(b)(2) of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)), before being considered for custody under the best interests standard without the necessity of first establishing the unfitness of the parent. (In re Custody of Peterson (1986), 112 Ill. 2d 48, 53, 491 N.E.2d 1150, 1152; In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 175, 524 N.E.2d 728, 731; In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 541, 440 N.E.2d 1036, 1040.) The superior right of a natural parent to custody of his or her child is not absolute but only one of several factors looked to in determining best interests of the child. In re Custody of Peterson (1986), 112 Ill. 2d 48, 51-52, 491 N.E.2d 1150, 1151.

Section 601(b)(2) of the Dissolution Act provides in relevant part:

“A child custody proceeding is commenced in the court
* * *
(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2).

A determination of when a child is “not in the physical custody of one of his parents” so as to create standing in a nonparent seeking custody under the Dissolution Act is not subject to any clear litmus test or dependent upon any single fact such as who is in actual physical possession of the child at the time the petition for custody modification is filed. (See In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 527 N.E.2d 131.) In Santa Cruz, this court extensively reviewed the only Illinois Supreme Court decision, Peterson, to have addressed the standing issue as well as In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 440 N.E.2d 1036, and In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 453 N.E.2d 835, which were the two cases favorably cited and relied upon by the court in Peterson. Additionally, in Santa Cruz, we discussed the facts of the three other recent decisions that have applied the rationale of Peterson. (See Montgomery v. Roudez (1987), 156 Ill. App. 3d 262, 509 N.E.2d 499; In re Custody of McCarthy (1987), 157 Ill. App. 3d 377, 510 N.E.2d 555; In re Custody of O’Rourke (1987), 160 Ill. App. 3d 584, 514 N.E.2d 6.) From these cases, we concluded that a determination of whether a child was “not in the physical custody” of one of his parents under the language of section 601(b)(2) so as to confer standing on a nonparent to seek custody depended upon a consideration of various factors, including who was in physical possession of the child, how that person got possession as well as the duration and nature of the physical possession. In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 783, 527 N.E.2d 131, 136.

Although relevant factors for a determination of standing include the manner, nature and duration of physical possession, such factors must be applied within the statutory scheme of the Dissolution Act and the Child Custody Act incorporated therein, which evince twin policies favoring the superior rights of parents to the custody of their children and the fostering of greater stability in the home environment by deterring abductions and other unilateral removals of children. (See In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 398, 453 N.E.2d 835, 838; Ill. Rev. Stat. 1987, ch. 40, pars. 601, 2102(a)(4), (a)(5).) As the Illinois Supreme Court stated in Peterson, “the standing requirement under section 601(b)(2) should not turn on who is in physical possession, so to speak, of the child at the moment of filing the petition for custody. To hold differently would be to encourage abductions of minors in order to satisfy the literal terms of the standing requirement and would, in reality, defeat the statutory intendment.” In re Custody of Peterson (1986), 112 Ill. 2d 48, 53-54, 491 N.E.2d 1150, 1152-53.

Similar to our holding in Santa Cruz is the holding of the Appellate Court, Third District, in In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 178, 524 N.E.2d 728, 733, which, after reviewing Peterson, Barokas and Menconi, stated “physical custody, as defined by section 601(b)(2), requires a determination of who was providing for the care, custody and welfare of the child prior to the initiation of custody proceedings.” (In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 178, 524 N.E.2d 728, 733.) Since no one factor is controlling in the determination of whether a child is not in the physical custody of one of his parents under section 601(b)(2), such a determination in a given case will depend heavily on the particular facts of the individual case.

It has been held that the overnight visit by a child to a third party and that party’s refusal to return the child to its custodial parent did not deprive that parent of “physical custody” as that term is used in section 601(b)(2) so as to create standing of the nonparent, third party, to seek custody of the child under the Dissolution Act. (In re Custody of McCuan (1988), 176 Ill. App. 3d 421, 531 N.E.2d 102.) The forcible removal of a child from his grandparents by a parent who had not cared for the child in the 6V2 years since he left the child at age two months with the grandparents did not deprive the grandparents of standing under section 601(b)(2) to seek custody under the best interest standard of the Dissolution Act. (In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 453 N.E.2d 835.) In some cases, the courts relied on the facts surrounding the voluntary relinquishment of the physical and/or legal custody of the child as well as the parents’ intentions and expectations when relinquishing the child to the care of another. See In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150; Montgomery v. Roudez (1987), 156 Ill. App. 3d 262, 509 N.E.2d 499 (mother upon voluntarily relinquishing custody of newborn to great aunt signed papers equivalent to adoption consent forms); In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 527 N.E.2d 131; In re Marriage of Gustafson (1989), 181 Ill. App. 3d 472, 536 N.E.2d 1359.

In the instant case Carol, by the settlement agreement incorporated into the judgment of dissolution, gave permanent legal custody of Brendan, then age four, to John in 1981. Between 1982, after John’s marriage to Mary, and 1984, prior to John, Mary and Brendan’s move to Virginia, Brendan lived with John and Mary. Although Carol exercised visitation rights, Mary, as John’s wife, undertook with John to provide for the care and welfare of Brendan. In 1984, Carol by an agreed order allowed John to retain permanent custody of Brendan and to move Brendan to Virginia, where Brendan’s care, custody and welfare were provided by John and Mary. In 1987, when John died, a mother-son relationship existed between Mary and Brendan. Carol, although exercising her visitation rights, had not provided for the care, custody and welfare of Brendan in such a manner that, when John died, the trial court was required to find that physical custody as used in section 601(b)(2) was in Carol, who had voluntarily relinquished permanent legal custody in 1981. See In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 453 N.E.2d 835 (where father voluntarily placed two-month-old daughter with his parents and in the next 6V2 years the grandparents provided for the care and custody of the child and a mother-daughter relationship developed between the grandmother and child, the father’s taking of the child from the grandparents four days prior to the grandparents’ petition for custody did not defeat the grandparents’ standing under section 601(b)(2)); cf. In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150 (father, who lived on same block as ex-spouse granted custody of child, and who exercised regular visitation, had physical custody of child upon ex-spouse’s death for purposes of defeating maternal grandparents’ standing under section 601(b)(2) even though ex-spouse lived with child’s maternal grandparents and they helped with the child, where the ex-spouse never gave custody of child to grandparents); In re Marriage of Gustafson (1989), 181 Ill. App. 3d 472, 536 N.E.2d 1359.

The dissent filed in this case takes the position that because the facts in this case so closely parallel those in In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150, Peterson requires us to find that Mary had no standing to seek custody of Brendan because it would not have occurred to Carol that Mary had physical custody of Brendan and was developing a position of standing.

We disagree. In Peterson the custody arrangement was determined by the court rather than by agreement of the parties; here, Carol had previously agreed to Brendan’s permanent custody with John at a time when John was dating Mary. After John and Mary were married, Carol agreed to allow Brendan to move with John and Mary to Washington, D.C., where they continued to reside until John’s death some five years later. During this time, Mary, as John’s wife, was an integral part of the family unit in which Brendan lived. It is apparent from the evidence that for five years, Brendan enjoyed a mother/son relationship. Although the grandparents in Peterson provided a home and helped their ailing daughter care for the child, there was no indication that the grandparents had established any parental relationship with the child.

Moreover, the facts in Peterson indicate that the custodial mother was residing with her parents because of her health. Although the mother and child did remain there until the mother’s death, it appears that the arrangement was not initially intended to be a permanent one. In the case before us, however, the parties in agreeing to Brendan’s residence out of State -with his father and stepmother established a permanent arrangement which would no doubt have continued but for John’s death. Given the distinguishing facts in this case, Peterson does not require us to find that Mary had no standing to seek custody of Brendan.

In the instant case, we do not find that the trial court’s implicit finding that Brendan was not in the physical custody of one of his parents to be against the manifest weight of the evidence or that the trial court erred in ruling that Mary had standing to petition for custody of Brendan under the best-interests standard provided for in modification of custody proceedings under the Dissolution Act. In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150.

As Carol’s brief repeatedly emphasizes, we are aware that the record indicated Mary took affirmative steps, such as staying with friends immediately after John’s death, to prevent Carol from attempting to take possession of Brendan after John’s death. Additionally, Mary may have possibly failed to fully inform the Virginia court during the guardianship proceedings of Carol’s desire to obtain possession and control of Brendan, not to mention the fact that Carol retained liberal rights of visitation under the Illinois circuit court’s order entered in 1984. However, Carol did not have the right to unilaterally retake physical custody of Brendan since the legal custody of Brendan upon John’s death did not automatically revert to Carol. In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 178, 524 N.E.2d 728, 733; Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 416 N.E.2d 1140 (death of the custodial parent after a final judgment of dissolution of marriage has been entered does not automatically revert custody to the surviving noncustodial parent, but the court has jurisdiction to determine further custody transfers in that the legal custody of the child after the custodial parent’s death is not immediately in anyone).

The proper procedure, as followed by Carol, was to petition the court for a modification of custody pursuant to section 610 of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 610). In this way, the twin policies of the Dissolution Act and the Child Custody Act, of avoiding child abductions and other unilateral removals of children and of fostering a stable home environment, were achieved to a great extent in that Brendan remained with Mary, with whom he had lived for the past six years, until the courts became involved and exercised their power to address the best interests of Brendan. (See In re Custody of Menconi (1983), 117 Ill. App. 3d 394, 398, 453 N.E.2d 835, 838.) We do not condone or excuse the actions of Mary which denied Carol her rights to visitation with Brendan after John’s death. Nor, do we condone Carol’s threat to remove Brendan from the household literally within days after the death of his father. However, the same rationale which controls the determination of standing under section 601(b)(2) dictates that Mary’s actions would not result in her loss of standing under section 601(b)(2) where Mary as a non-parent otherwise properly had standing to seek custody under section 601(b)(2). In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150 (physical custody and related issue of standing do not turn on who is in actual physical possession at time proceedings are commenced).

The judgment of the circuit court is affirmed.

Affirmed.

WOODWARD, J., concurs.

JUSTICE DUNN,

dissenting:

I respectfully dissent because the holding of the majority cannot be reconciled with our supreme court’s decision in In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150.

The majority recognizes that Mary only had standing to petition for custody of Brendan under the Act if he was “not in the physical custody of one of his parents” (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)). In Peterson, the child resided with her mother and maternal grandparents following the dissolution of her parents’ marriage. The father, who lived on the same block, regularly exercised his visitation rights. After the mother’s death, the grandparents petitioned for custody under the Act. Our supreme court noted that the grandparents had assisted in caring for the child but went on to state as follows:

“Considering, however, that the mother continued to live with the child, it would not reasonably occur to the father that the maternal grandparents had physical custody of his child and were developing a position of standing, so that upon the death of his wife he could be deprived of his right to custody of his child. The father regularly exercised his visitation rights with Lynette at the Jadrychs, where Lynette and her mother lived. Within the meaning of section 601(b)(2) Lynette must be considered to have been, upon her mother’s death, in the physical custody of her father.” (Emphasis added.) Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1153.

As Justice Green observed in his special concurrence in In re Marriage of Gustafson (1989), 181 Ill. App. 3d 472, Peterson provides that if the noncustodial parent continually shows interest in a child and seeks custody upon the death of the custodial parent, a constructive physical custody will be implied in favor of the noncustodial parent. (Gustafson, 181 Ill. App. 3d at 481, 536 N.E.2d at 1364 (Green, J., specially concurring).) This serves to protect the right of natural parents as against third parties to the care, custody, and control of their children (181 Ill. App. 3d at 481, 536 N.E.2d at 1364 (Green, J., specially concurring)), a right that was mentioned in Peterson (112 Ill. 2d at 51, 491 N.E.2d at 1151). Here, as in Peterson, the noncustodial parent continually showed an interest in the child by regularly exercising visitation rights. The noncustodial parent also sought custody in both instances and immediately challenged custody petitions filed by third parties who had resided with the child and the custodial parent.

The only major factual difference between this case and Peterson is that the noncustodial parent contested custody of the child during the dissolution proceedings in Peterson while Carol Carey agreed in the case at bar that her husband, John, would receive custody of Brendan. Such an agreement, however, is not tantamount to an abandonment of a child or a loss of interest in him. A holding to the contrary would only serve to discourage amicable settlement of custody matters in dissolution proceedings by forcing the parties to litigate custody matters in order to fully protect their parental rights in the event of the other parent’s death.

In the case at bar as in Peterson, the noncustodial parent regularly exercised visitation rights and maintained an interest in the child. It would not have occurred to Carol that the presence of Mary in John’s household could cause Mary to attain standing to seek custody of Brendan in the event of John’s death, just as it would not have occurred to the father in Peterson that the presence of the mother in the grandparents’ household would give the grandparents standing to seek custody upon the mother’s death (112 Ill. 2d at 54, 491 N.E.2d at 1153). Under Peterson and section 601(b)(2) of the Act, Mary lacked standing to seek custody of Brendan pursuant to the Act because Carol had physical custody of Brendan upon John’s death.

In addition to protecting the rights of noncustodial parents, the Peterson holding also serves the interests of children. This is somewhat ironic because the standard for custody determinations under the Act is the best interests of the child, and Peterson takes a restrictive view of standing under the Act. By doing so, however, our supreme court has discouraged custody litigation upon the death of custodial parents, thus preventing many children who have undergone the trauma of a parent’s death from then undergoing the trauma of being the subject of a custody battle. In cases where the noncustodial parent is an unfit custodian, custody may still be challenged under the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501 et seq.) as our supreme court noted in Peterson (112 Ill. 2d at 55, 491 N.E.2d at 1153). Since I believe that Peterson compels.the conclusion that Mary did not have standing under section 601(b)(2) of the Act to seek custody of Brendan, I respectfully dissent.


author: PRESIDING JUSTICE CAMPBELL

text:
    NEWPORT CONDOMINIUM ASSOCIATION, Plaintiff-Appellee, v. TALMAN HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO et al., Defendants-Appellants.
    First District (1st Division)
    No. 1 — 87—2197
    Opinion filed June 13, 1988.
    Rehearing denied October 25, 1989.

      Jaros, Tittle & O’Toole, of Chicago (Mary F. Murray, of counsel), for appellants.
    Marshall N. Dickler, Ltd., of Arlington Heights (Marshall N. Dickler, Dawn M. Danger, and Nancy R. Cass, of counsel), for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendants, Taiman Home Federal Savings and Loan Association of Chicago and unknown owners (Taiman), appeal from a judgment of foreclosure and sale entered on June 12, 1987, in favor of plaintiff, Newport Condominium Association, decreeing that Taiman owed Newport $40,085.31 in past-due condominium assessments for condominium unit No. 306 — S, located at 4800 S. Chicago Beach Drive, Chicago. Taiman, record owner of unit 306 — S at the time judgment of foreclosure was entered, does not dispute Newport’s right as a lien-holder to foreclose the property. Rather, Taiman disputes the period of time for which assessments were found due and owing Newport from Taiman. On appeal, Taiman contends that the trial court erred in finding that a certificate of purchase issued to Taiman at a sheriff’s sale conveyed constructive title to unit 306 — S, thereby imposing liability on Taiman for assessments commencing with receipt of the certificate of purchase on July 25, 1983. For the following reasons, we reverse the judgment of the trial court and remand the cause with directions.

The record and briefs indicate the following events which led to Newport’s judgment of foreclosure. Troy Thompson held a mortgage with Taiman, secured by unit 306 — S. On March 12, 1982, Taiman filed a complaint to foreclose the first mortgage on unit 306 — S for default in mortgage payments, naming Newport as an additional party defendant. At the time, Newport also had a lien on unit 306 — S for past-due monthly assessments.

On October 7, 1982, judgment of foreclosure was entered in favor of Taiman. Subsequently, on November 9, 1982, an amended judgment of foreclosure was entered, which acknowledged that Newport had a subordinate lien on the premises for past-due condominium assessments in the amount of $3,985.19. On January 25, 1983, a sheriff's sale was held at which Taiman was the successful bidder and received a certificate of purchase. Pursuant to the judgment, the statutory six-month period of redemption commenced to run on that date and expired on July 25, 1983.

Meanwhile, on March 3, 1983, Troy Thompson, mortgagor, filed a voluntary bankruptcy petition under chapter 11 of the United States Bankruptcy Code which was later converted to a chapter 7 proceeding. On February 20, 1985, the bankruptcy court entered an order abandoning unit 306 — S as property of Thompson’s estate. Taiman contends that it did not receive formal notification of the order of abandonment until May 7, 1985. Thereafter, on May 29, 1985, Taiman exchanged its certificate of purchase for the sheriff’s deed to unit ' 306 — S.

On June 25, 1985, Newport filed a complaint against Taiman to foreclose its lien on unit 306 — S for past-due assessments, claiming an amount due of $10,150.96 for monthly assessments from July 25, 1983, to June 18, 1985, plus costs and additional attorney fees. Taiman moved to dismiss the complaint on the grounds that the 1982 judgment of foreclosure barred Newport from foreclosing the lien of unpaid condominium assessments that had attached and accrued on unit 306 — S from the date of judgment to the date Taiman had exchanged its certificate of purchase for the sheriff’s deed. Taiman further stated that it had not been entitled to a deed to unit 306 — S until resolution of the bankruptcy proceedings and modification of the stay. The trial court denied Talman’s motion to dismiss, holding that when the six-month statutory redemption period terminated on July 25, 1983, Talman’s right to take the deed occurred automatically without need for leave of court and without any violation of the Bankruptcy Code’s automatic stay provision.

Thereafter, on February 27, 1986, Newport moved for summary judgment on the foreclosure complaint. The trial court entered partial summary judgment on July 28, 1986, granting Newport leave to file an affidavit in support of its claim for assessments and common expenses. Subsequently, on June 12, 1987, judgment of foreclosure and sale was entered which decreed that Taiman owed Newport the sum of $40,085.31, resulting from default in payment of assessments from July 25, 1983, to June 12, 1987. In entering this judgment, the trial court found, inter alia, that: (1) Taiman had held constructive title to unit 306 — S from July 25, 1983, to June 12, 1987; (2) Taiman was obligated for all assessments for common expenses and other charges lawfully assessed by Newport; and (3) Taiman had defaulted in payment. Taiman appeals from this order.

Preliminarily, we note that the parties agree that Taiman, as record owner of unit 306 — S, is liable for all monthly assessments due and owing after it exchanged its certificate of purchase for a sheriff’s deed on May 29, 1985. The time period in dispute is from July 25, 1983, to May 29, 1985, i.e., from the date the six-month statutory redemption period ended to the date Taiman actually secured the sheriff’s deed. Talman’s position is that it held no title during this period, and, thus, was not liable for monthly assessments that accrued during that time. The trial court held that the certificate of purchase gaveTaiman constructive title and imposed liability for the assessments.

On appeal, Taiman first contends that the determination in an earlier forcible entry and detainer action was res judicata as to the question of when Taiman became liable to Newport for condominium assessments. As indicated, in June 1985 Newport filed its complaint against Taiman for foreclosure. Approximately two months later Newport also filed a forcible entry and detainer action in the municipal court, seeking to recover $13,655.94 in condominium assessments for the period from January 25, 1983, through July 1, 1985. A ruling was entered in the forcible action on January 16, 1986, in favor of Taiman. According to Taiman, the order determined that Taiman was liable only for condominium assessments that had accrued since the issuance of the sheriff’s deed on May 29, 1985. Thus, Taiman contends that because the forcible action already litigated and resolved the issue as to the period of time for which Taiman was liable for payment of condominium assessments to Newport, the issue is barred by res judicata in the foreclosure action.

In response, Newport argues that the only matter determined by the forcible court was possession. By contrast, the issue before the trial court on the foreclosure complaint is a determination of title for the disputed period. Further, Newport contends that the doctrine of res judicata requires that the court have had competent jurisdiction over the matter. A forcible entry and detainer court has special and limited jurisdiction reserved only for questions of possession.

It is well established that an action for forcible entry and detainer is purely possessory and the immediate right to possession is all that is involved. A court entertaining such an action has limited and special jurisdiction without equitable powers. (Clark Oil & Refining Corp. v. Banks (1975), 34 Ill. App. 3d 67, 339 N.E.2d 283; Pipitone v. Mandala (1962), 33 Ill. App. 2d 461, 180 N.E.2d 33.) Although title documents which establish the right to possession may be submitted as evidence in a forcible proceeding (Clark Oil & Refining Corp., 34 Ill. App. 3d 67, 339 N.E.2d 283), the issue of title cannot be resolved in such a proceeding (Pipitone, 33 Ill. App. 2d 461, 180 N.E.2d 33). Accordingly, because the forcible entry and detainer court lacked jurisdiction to resolve disputes as to title, we conclude that the judgment entered by that court is not res judicata of the foreclosure action which raises title as an issue.

Next, Taiman contends that the trial court erred in its determination that Taiman held constructive title to unit 306 — S during the period from July 25, 1983, expiration date of the redemption period to May 29, 1985, the date Taiman exchanged its certificate of purchase for a sheriff’s deed. Taiman commences its argument on this issue by defending its two-year delay in exchanging the certificate of purchase for a sheriff’s deed on the grounds that: (1) it believed that the automatic stay provision of the Bankruptcy Code prevented it from securing a deed; and (2) even if it could have secured the deed at the end of the six-month redemption period, pursuant to section 12 — 145 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 12— 145) it had no legal obligation to do so. Section 12 — 145 provides:

“[T]he legal holder of the certificate is entitled to a deed *** at any time within 5 years from the expiration of the time of redemption.” Ill. Rev. Stat. 1985, ch. 110, par. 12 — 145.

In response, Newport devotes a large portion of its argument to ' whether the automatic stay provision of the Bankruptcy Code barred Taiman from securing a deed to unit 306 — S at the end of the redemption period. This argument, however, is irrelevant to the issue at bar-in light of the fact that Taiman was under no legal obligation to exchange the certificate for a deed. Section 12 — 145 merely entitles Taiman to that right. It does not mandate that it act on that right. When Taiman elected to exchange the certificate of purchase for the deed during the five-year statutory period of section 12 — 145, title to unit 306 — S passed to Taiman. (See Mutual Life Insurance Co. v. Chambers (1980), 88 Ill. App. 3d 952, 410 N.E.2d 962.) However, if Taiman had failed to secure the deed during the five-year period, the certificate would have become null and void and the mortgagor would be the sole owner of the premises, not by any new title, but by the title which he formerly had. (Allison v. White (1918), 285 Ill. 311, 120 N.E. 809.) Thus, although it would not be prudent for Taiman to purchase the property at a foreclosure sale and not secure the deed during the five-year period following the redemption period, it is not legally obligated to do so, and the law provides for the event when a sheriff’s deed is not secured.

The next question to be addressed is whether the certificate of purchase imposed constructive title upon Taiman during the period in question. Illinois law has consistently held that title to land sold under a mortgage foreclosure remains in the mortgagor until the expiration of the redemption period and conveyance of the deed to the purchaser of the sale, (Kling v. Ghilarducci (1954), 3 Ill. 2d 454, 121 N.E.2d 752; Hruby v. Steinman (1940), 374 Ill. 465, 30 N.E.2d 7; Hack v. Snow (1929), 338 Ill. 28, 169 N.E. 819; Mutual Life Insurance Co. v. Chambers (1980), 88 Ill. App. 3d 952, 410 N.E.2d 962; Dunlap v. Peirce (1931), 260 Ill. App. 149.) Contrary to Newport’s suggestion, both expiration of the redemption period and conveyance of the deed are necessary to pass title. Expiration of the redemption period is not enough. A certificate of purchase does not confer title, legal or equitable. It is merely evidence of the right to obtain title once the redemption period has expired. Kling v. Ghilarducci, 3 Ill. 2d 454, 121 N.E.2d 752; Allison v. White, 285 Ill. 311, 120 N.E. 809; Mutual Life Insurance Co. v. Chambers, 88 Ill. App. 3d 952, 410 N.E.2d 962.

Accordingly, based upon long-standing Illinois law, until Taiman took the sheriff’s deed to unit 306 — S on May 29, 1985, it had no title, legal or equitable, in Unit 306 — S. Therefore, because the obligation to pay condominium assessments is a covenant that runs with the land and is binding only upon title holders (Streams Sports Club, Ltd. v. Richmond (1982), 109 Ill. App. 3d 689, 440 N.E.2d 1264), we conclude that Taiman is not liable for the assessments which accrued during the period from July 25, 1983 (expiration of the redemption period), to May 29, 1985 (date Taiman exchanged the certificate for the deed). Instead, Talman’s liability for the assessments commenced on May 29, 1985.

For the aforementioned reasons, the judgment of the trial court is reversed and the cause remanded with directions to the trial court to dismiss the proceedings against Taiman.

Reversed and remanded.

QUINLAN and MANNING, JJ., concur.

       The pleadings filed prior to Newport’s complaint to foreclose its lien, which was filed on June 25, 1985, are not contained in the record. All references in this opinion to those prior proceedings are based on undisputed facts in the briefs.

       The record is void of any pleadings or orders entered with respect to the forcible action. This court has only the undocumented statements in the briefs as to the forcible complaint and ruling. Apparently, mortgagor, Troy Thompson, remained in possession of unit 306 — S during the bankruptcy proceedings.


author: JUSTICE MANNING

text:
    MILTON FURGATCH et al., Plaintiffs and Intervening Defendants-Appellees, v. RICHARD S. BUTLER, Indiv. and as Beneficiary of Chicago Title and Trust Company, Land Trust No. 107905, Plaintiff-Appellant (The City of Chicago et al., Defendants-Appellees).
    First District (1st Division)
    No. 1 — 86—1139
    Opinion filed September 26, 1988.
    Rehearing denied October 23, 1989.

      Schain, Firsel, Brown & Burney, Ltd., of Chicago (Thomas R. Burney and J. Randolph Given, of counsel), for appellant.
    Judson H. Miner, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Maureen Jeannette Kelly, Assistant Corporation Counsel, of counsel), for appellees City of Chicago, Harold Washington, Terry M. Gabinski, and Lawrence Bloom.
    Vedder, Price, Kaufman & Kammholz, of Chicago (Richard F. Zehnle and Kenneth D. Greisman, of counsel), for other appellees.
   JUSTICE MANNING

delivered the opinion of the court:

The plaintiff, Richard S. Butler, appeals from an order of the circuit court of Cook County entered pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615), dismissing with prejudice his complaint for declaratory judgment upon a finding that it was insufficient at law. Specifically, the complaint sought a declaration that a zoning ordinance affecting a two-story building in which plaintiff owned a beneficial interest, and in which he operated an accounting business, was unconstitutional as it applied to his property. The complaint further sought to have defendants rezone the premises and enjoined from interfering with plaintiff’s use thereof. The issues presented for review are whether the dismissal order was an abuse of discretion and whether plaintiff’s complaint was barred by principles of res judicata.

On August 19, 1985, the plaintiff filed a complaint which alleged, inter alia, that on July 7, 1980, he acquired the beneficial interest in a two-story brick commercial building located at 1645 East 53rd Street in Chicago, Illinois. When plaintiff purchased the property, it was split-zoned with the northern (3k) portion of the building located in a B4-4 restricted service district and the southern (xk) located in the more restrictive R-6 general residence district. Pursuant to article 5, section 5.1(2), of the Chicago Zoning Ordinance, the more restrictive R-6 classification governed the entire property.

On November 21, 1980, the Chicago zoning board of appeals granted plaintiff’s petition for special use of his property as offices. Thereafter, on June 5, 1981, the Chicago department of inspectional services issued a permit authorizing plaintiff to partition the space into offices.

Plaintiff, under the name of 3R’s Joint Venture, entered into a lease agreement with Ms. Orbie Cunningham on May 11, 1982, for the rental of the first floor of the premises to be used as a restaurant with a service bar. After a substantial portion of the first-floor remodeling was completed, the department of inspectional services revoked the permit issued to the plaintiff because the remodeling was contrary to the plans. Subsequently, Ms. Cunningham applied to the City of Chicago zoning administrator for a permit to operate a restaurant with a service bar on the first floor of plaintiff’s building. The application was denied because of the aforementioned split zoning. Cunningham filed an appeal on behalf of 3R’s Joint Venture with the Chicago zoning board of appeals on December 15, 1982, which upheld the decision of the administrator. On March 1, 1985, the zoning board of appeals’ decision was affirmed by the circuit court of Cook County.

On January 17, 1984, Cunningham filed a second appeal on behalf of 3R’s Joint Venture from a decision of the administrator denying the use of the building for a restaurant with a service bar. This appeal was denied by the zoning board of appeals, and on March 1, 1985, that decision was affirmed by the circuit court of Cook County. Thereafter, Alderman Lawrence Bloom sponsored a resolution for a change in zoning of the property from a split zone to an R-6 residential district. Subsequently, plaintiff filed an application to rezone the property to a B4-4 restricted services district. On May 21, 1985, the Chicago council committee on zoning denied plaintiff’s application and passed Alderman Bloom’s resolution, which was ratified by the city council, changing the zoning to an R-6 general residence district.

Plaintiff contends that the property is located in a predominantly commercial area and that the subject property has not been used as a residence for over 35 years. He further contends that the rezoning of the property as an R-6 residential district was discriminatory, arbitrary, diminished the property value and was unconstitutional. Plaintiff requested that the premises be rezoned as a B4-4 restricted service district and that he be permitted to operate the premises under such zoning provision.

On March 1, 1985, prior to plaintiff having filed his complaint, various neighborhood residents (hereafter intervenors) filed an action seeking to enjoin plaintiff from operating a restaurant, bar, nightclub or place of amusement activities on the subject premises.' The intervenors alleged, inter alia, that they were property owners who resided within 1,200 feet of the subject premises, which was the sole commercial structure on the block. The intervenors further contended that contrary to the zoning ordinance, plaintiff was operating a restaurant, night club or bar on the premises and that the intervenors would suffer severe and irreparable harm if plaintiff was not enjoined from operating the premises in its present use. On March 13, 1985, a preliminary injunction was entered enjoining plaintiff from using the property for a restaurant or bar.

On September 5, 1985, an agreed order was entered to consolidate the intervenors’ complaint for injunctive relief with plaintiff’s complaint for declaratory judgment. Thereafter, on October 7, 1985, the intervenors filed a motion to dismiss plaintiff’s complaint pursuant to section 2 — 615 of the Code of Civil Procedure. The motion to dismiss alleged that when plaintiff acquired the premises it was zoned R-6 residential district. Therefore, plaintiff had constructive notice of the zoning provision. Moreover, plaintiff applied for and received approval from the zoning board of appeals to use the premises as offices.

The intervenors asserted that upon application of Alderman Bloom, the entire premises was rezoned R-6 residential district and that the rezoning had no effect on plaintiff’s use of the property since the property was previously split-zoned B4-4 restricted service district and R-6 general residence district. Pursuant to article 5, section 5.1(2), of the Chicago Zoning Ordinance, the more restrictive R-6 zoning provisions governed the use of the property. The motion to dismiss further asserted that since the zoning change did not affect plaintiff’s use of the premises, there is no justiciable controversy between plaintiff and defendants and the plaintiff has suffered no damage. The intervenors finally contend that zoning is not a function of the court. Therefore, the complaint should be dismissed with prejudice.

On October 9, 1985, defendants filed an appearance. After additional pleadings were filed by plaintiff and intervenors, the trial court heard arguments from counsel representing all parties on the motion to dismiss. Although the defendants failed to file an answer, they adopted the intervenors’ motion and supported it by argument during the hearing. Subsequently, on January 10, 1986, the trial court entered a memorandum opinion and order which granted the intervenors’ motion to dismiss plaintiff’s complaint with prejudice.

The trial court reasoned that the plaintiff had constructive knowledge of the zoning provisions when he acquired the property and could not now complain about those provisions. Additionally, the zoning ordinance did not permit a nonconforming use of the subject property. The trial court further determined that plaintiff’s complaint for declaratory relief was defective in that it failed to propose specific use for the property. Moreover, the court held that no justifiable controversy existed since the rezoning did not damage the plaintiff and that zoning was not a judicial function.

Subsequently, plaintiff filed a motion for reconsideration, modification or vacation of the dismissal orders and a motion for leave to file an amended complaint. After hearing argument the trial court denied plaintiff’s motions.

Defendants contend that plaintiff’s complaint challenging the zoning ordinance as unconstitutional as it applied to his property was barred by the doctrine of res judicata. Plaintiff further contends that the issue of res judicata cannot be raised for the first time on appeal. We disagree. It is well settled that although an appellant who fails to raise an issue before the trial court waives that issue on appeal, an appellee may raise any issue on appeal that is supported by the record. (Louis Marsh, Inc. v. Pekin Insurance Co. (1985), 140 Ill. App. 3d 1079, 1082, 491 N.E.2d 432; Spencer v. Community Hospital (1980), 87 Ill. App. 3d 214, 218, 408 N.E.2d 981.) Moreover, although the trial court did not base its decision on res judicata, a reviewing court is not required to accept the trial court’s reasoning for its judgment (Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9), and the trial court’s judgment may be sustained by the reviewing court on any grounds supported by the record. Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502, 520 N.E.2d 37; Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 148, 478 N.E.2d 384.

Since we have concluded that res judicata was properly raised, we must now determine whether plaintiff’s complaint challenging the constitutionality of the zoning ordinance was barred by res judicata. The doctrine of res judicata was designed to protect litigants from the burden of retrying, identical claims or causes of action, with the same parties or those in privity, and to enhance judicial economy by prohibiting' repetitive. litigation. Blair v. Bartelmay (1986), 151 Ill. App. 3d 17, 19, 502 N.E.2d 859; People v. Bone (1980), 82 Ill. 2d 282, 286, 412 N.E.2d 444.

Res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and those in privity with the parties and constitutes an absolute bar to any subsequent action involving the same claim, demand or cause of action. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 251, 461 N.E.2d 959; Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 122, 382 N.E.2d 1217.) Moreover, when res judicata is established it is also conclusive to every matter which could have been offered to sustain or defeat the claim or demand. (Housing Authority, 101 Ill. 2d at 251-52.) Res judicata applies even if a different type of relief or damage is sought in the subsequent action as long as the same set of operative facts gives rise to the successive assertions of relief. Toepper v. Cooker (1986), 150 Ill. App. 3d 206, 208, 501 N.E.2d 934; Radosta v. Chrysler Corp. (1982), 110 Ill. App. 3d 1066, 1069, 443 N.E.2d 670.

The judgment rendered by the circuit court in the prior litigation of Cunningham v. Zoning Board of Appeals was a final judgment. Furthermore, a privity relationship existed between plaintiff and Orbie Cunningham. A lease requires privity (Davis v. Havana Mineral Wells, Inc. (1977), 48 Ill. App. 3d 996, 999, 363 N.E.2d 856), and both privity of contract and privity of estate exist between a lessor and lessee. (Springer v. DeWolf (1901), 194 Ill. 218, 221, 62 N.E. 542.) In the instant case, on May 11, 1982, plaintiff, under the name of 3R’s Joint Venture, entered into a lease agreement as the lessor with Orbie Cunningham as the lessee for the rental of the first floor of the premises to be used as a restaurant with a service bar.

The privity concept contemplates a successive or mutual relationship to the same property rights considered by the prior litigation. (Metropolitan Life Insurance Co. v. Hansen (1981), 102 Ill. App. 3d 354, 356, 430 N.E.2d 57; Schafer v. Robillard (1938), 370 Ill. 92, 100, 17 N.E.2d 963.) Orbie Cunningham on behalf of 3R’s Joint Venture applied to the City of Chicago zoning administrator for a permit to use the property as a bar with live entertainment. The application was denied and Ms. Cunningham filed an appeal on behalf of 3R’s Joint Venture, with the zoning board of appeals, which upheld the decision of the administrator. Thereafter, the circuit court of Cook County affirmed the zoning board of appeals decision.

Ms. Cunningham filed a second appeal on behalf of 3R’s Joint Venture from the decision of the zoning administrator denying the use of the building for a restaurant with a service bar. The zoning board of appeals denied Ms. Cunningham’s second appeal, and that denial was affirmed by the circuit court of Cook County.

Ms. Cunningham filed the aforementioned actions on behalf of the plaintiff, who operated a business under the name of 3R’s Joint Venture. During the course of those actions, Ms. Cunningham could have amended her pleadings and challenged the constitutionality of the zoning ordinance as it applied to the subject property. Although the rezoning of the property from a split zone to an R-6 general residence district occurred subsequent to the filing of the complaints by Ms. Cunningham, the time frame in which the change in zoning became effective is of no consequence since the more restrictive R-6 general residence district classification governed the use of the entire property during both the Cunningham and Butler suits. Consequently, the plaintiff is barred under the doctrine of res judicata from pursuing his constitutional claim since he does stand in the relationship of privity with Ms. Cunningham, who was a party to the prior action where the constitutional claim could have been raised.

Res judicata is also operable when the facts and relief sought in both the prior and subsequent actions are substantially the same. (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 254, 461 N.E.2d 959; Midlinsky v. Rubin (1930), 341 Ill. 378, 385, 173 N.E. 368.) In determining whether both actions involve the same claim, demand or cause of action, the test is whether the facts are identical or whether the same evidence would sustain both actions. Lester v. Arlington Heights Federal Savings & Loan Association (1985), 130 Ill. App. 3d 233, 238, 274 N.E.2d 33; Renner v. Greathouse (1957), 12 Ill. App. 2d 338, 341, 139 N.E.2d 825.

In the instant case res judicata is applicable since both the Cunningham and Butler suits are based on the City of Chicago’s refusal to permit the use of a restaurant and/or bar on the first floor of the subject property. Additionally, both actions concern whether the R-6 general residence district zoning classification was appropriately applied to the subject property. The lessee could have presented the identical evidence in the prior litigation that was presented by the plaintiff, such as the historical and existing use of the subject property and surrounding properties and the affect of the zoning ordinance on the public health and welfare, in order to raise a constitutional challenge to the zoning ordinance. We conclude that the same set of facts and evidence would sustain both suits and the relief sought, which would result in the use of the first floor of the building as a restaurant and/or bar, is substantially the same.

For the foregoing reasons, we conclude that the judgment entered in Cunningham v. Zoning Board of Appeals is res judicata and bars the plaintiff’s subsequent action since the plaintiff’s constitutional issue could have been raised in Ms. Cunningham’s action due to the existence of a privity relationship and the same set of facts and evidence would sustain both suits. In light of our disposition of this case based on res judicata, it is not necessary to address the issue of whether the trial court’s order of dismissal was an abuse of discretion. The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY and O’CONNOR, JJ., concur.