text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD OWEN CAMP, Defendant-Appellant.
    First District (1st Division)
    No. 1-87-3802
    Opinion filed June 29, 1990

      Randolph N. Stone, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee G. Goldfarb and Jane E. Loeb, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE MANNING

delivered the opinion of the court:

Defendant, Richard Owen Camp, was charged by indictment with the offenses of burglary and criminal damage to property; the latter charge was dismissed by the State. Following a trial before a jury in the circuit court of Cook County, the defendant was found guilty of burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1(a)), and subsequently was sentenced to a term of 12 years.

Defendant now appeals his conviction and sentence, asserting three grounds for reversal: (1) that the trial court’s refusal to give the jury his tendered instruction on voluntary intoxication as a defense deprived him of a fair trial; (2) that he was prejudiced by the trial court’s refusal to grant his request for a continuance in order to secure witnesses who would establish his defense of voluntary intoxication; and (3) that the trial court abused its discretion in sentencing defendant to 12 years’ imprisonment.

Prior to trial defendant was evaluated for admittance in the Treatment Alternative to Street Crime Program (TASC). Although the evaluation found defendant to be an addict, it determined that he was unacceptable for the TASC program.

At trial, the following facts were adduced. On Saturday, May 11, 1986, at approximately 12:45 a.m., Victor Lownes of 120 North Oak Park Avenue parked his automobile in the municipal lot and walked towards his apartment when he heard the sound of breaking glass coming from the Tasty Dog restaurant. The Tasty Dog was on the southwest comer of the intersection of Euclid and Lake Streets, which was about 200 or 300 feet from where Lownes lived and between 50 and 100 feet from where he parked his car. He turned and saw the right profile of a white male of average build, in his twenties, who was wearing a blue shirt and looking into the Tasty Dog through the broken glass window. Lownes observed the man step into the restaurant through the six-foot-square window. Lownes then walked home, which took approximately two minutes, and called the Oak Park police to report the incident.

Officer Keenan Williams was on patrol that night. He was in an unmarked squad car at the intersection of Chicago and Ridge Streets when he received a radio dispatch at about 12:49 a.m. reporting a burglary in progress at 701 West Lake Street. He arrived at the scene about one minute later at which time he observed a man, whom he later identified in court as the defendant, standing behind the cash register. When the man noticed Williams, he moved toward the rear of the restaurant. Williams yelled “Police, halt,” but the man exited through the rear door and commenced to run.

Following an 80-yard chase, Williams tackled the man and knocked him to the ground. With the assistance of Officer Edward Hadac, who had arrived at the scene and paralleled the foot pursuit in his patrol car, Williams handcuffed the man. He noticed cuts and bruises on the man’s face, and that his breath exhaled a “strong odor” of alcohol. Officer Hadac also observed some facial injuries and bleeding but noticed “[njothing at all unusual about his [defendant’s] breath.”

The parties stipulated that if called as a witness, the emergency nurse, Sandra Watson, would testify that she smelled an “odor” of alcohol on the defendant’s breath while he was being treated at West Suburban hospital on the morning of May 11, 1986, for facial cuts.

During the instruction conference, the trial court denied the defense’s motion to submit a jury instruction on voluntary intoxication which states: “[(An intoxicated) ([a] drugged)] person is criminally responsible for his conduct unless his [(intoxication) (drugged condition)] renders him incapable of acting [(knowingly) (intentionally)].” (Illinois Pattern Jury Instructions, Criminal, No. 24 — 25.02 (2d ed. 1981).) Thereafter, the jury returned a verdict of guilty, the trial court denied defendant’s post-trial motion for a new trial and sentenced defendant to an extended term of 12 years in the Illinois Department of Corrections and two years’ mandatory supervised release.

Defendant first contends on appeal that the trial court erred in refusing to instruct the jury on his defense of voluntary intoxication. It is well settled in Illinois that voluntary intoxication does not excuse criminal conduct and generally is no defense to a criminal charge. (People v. Lion (1957), 10 Ill. 2d 208, 214, 139 N.E.2d 757.) However, voluntary intoxication is a defense if it negatives the existence of a mental state which is an element of the offense (Ill. Rev. Stat. 1983, ch. 38, par. 6 — 3(a)), based upon the rationale a defendant cannot be said to be guilty if he was intoxicated to such a degree as to be unable to form an intent. People v. Klemann (1943), 383 Ill. 236, 239, 48 N.E.2d 957.

Burglary is a specific intent crime because it contains, as an element of the offense, the requirement that the defendant entered the premises with the intent to commit a theft or felony. (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1(a); People v. Cabrera (1987), 116 Ill. 2d 474, 492, 508 N.E.2d 708; see also People v. Racanelli (1985), 132 Ill. App. 3d 124, 476 N.E.2d 1179.) In fact, intent is the gravamen of the offense of burglary. (See People v. Steppan (1985), 105 Ill. 2d 310, 473 N.E.2d 1300.) Voluntary intoxication is available as a defense to a specific intent offense where its effect is to negate the defendant’s mental state where such mental state is an element of the offense. People v. Hillenbrand (1988), 121 Ill. 2d 537, 555, 521 N.E.2d 900.

Defendant argues that the evidence presented at trial was evidence, however slight, and more than ample to justify the court giving the requested instruction. The evidence he refers to is the testimony of one police officer and a stipulation of facts. Conversely, the State contends that the requirement is “some” evidence which the defendant failed to present. The parties argue extensively about the degree of evidence which is necessary to justify a trial court giving an instruction on a given theory. However, we decline to engage any further in this endeavor of semantics to discern the meanings of “any” evidence, “slight” evidence or “some” evidence because the applicable principles of law are clear. While a defendant is entitled to have the jury instructed in the defense of voluntary intoxication where there is evidence on the record of intoxication, the degree of intoxication which will absolve the defendant of criminal liability must be so extreme that it entirely suspends the power of all reason. (People v. Stewart (1984), 122 Ill. App. 3d 546, 550, 461 N.E.2d 591; People v. Feagans (1983), 118 Ill. App. 3d 991, 997, 445 N.E.2d 871.) The same test applies if drugs are the agent allegedly depriving defendant of the capacity to commit the crime. (People v. Newlin (1975), 31 Ill. App. 3d 735, 334 N.E.2d 349.) In order to avail himself of the defense of intoxication, the defendant must establish that his condition was such as to render him wholly incapable of forming the requisite intent. (See People v. Gomez (1986), 141 Ill. App. 3d 935, 491 N.E.2d 68.) The mere fact that the defendant was drugged or intoxicated does not constitute a defense of intoxication. People v. Thompson (1984), 125 Ill. App. 3d 665, 676, 466 N.E.2d 380.

In the present case, the evidence of defendant’s alleged intoxication is as follows. The arresting police officer testified on cross-examination that he smelled a strong odor of alcohol on defendant’s breath as he stood close to him. Defense counsel inquired if the officer had stated during the preliminary hearing that defendant appeared to be wavering. The officer replied that he recalled stating the defendant did stagger during that time. As previously noted, the parties stipulated that Ms. Watson, the emergency room nurse, would testify that defendant had an odor of alcohol on his breath. However, we find that the testimony and stipulation alone or in light of the record as a whole do not establish a defense of voluntary intoxication.

The record also reveals that Officer Williams testified the defendant “was not staggering when I first viewed him” and explained that “he [the defendant] appeared to be wavering after apprehension was made” because “he was probably affected by the fall.” Although the statements showed defendant had been drinking, they did not support a finding that the level of intoxication so negated his mental state as to suspend all reason.

To the contrary, the facts below fail to establish that defendant lacked the capacity to appreciate the criminality of his conduct. We believe the evidence showed that defendant acted with the requisite mental state, i.e., intent. The evidence established that defendant knew what he was doing when he picked up a three-foot, 20-pound canister and used it to bash in the window. He then entered the restaurant through the broken glass and immediately found the cash register behind the counter. When noticed by the police, he exited through the back door and ran southbound through the parking lot behind the building in an attempt to flee. All of these events occurred within a five-minute time span.

Moreover, the police officers presented testimony as to the events following defendant’s apprehension. First, defendant was taken to the hospital for treatment of injuries sustained during the incident. Next, he was taken to the police station where he was booked. This took approximately six hours. However, during this time, he never lost consciousness, passed out, fell down or exhibited any other tendencies of intoxication. Based on the totality of the facts, the evidence does not establish that defendant was so intoxicated at the time of the offense that he was incapable of reasoning or forming the requisite mental intent to commit a burglary.

Even assuming that defendant was intoxicated, as defense counsel argues his mother and grandmother would have established had they been able to testify, his intoxicated condition, by itself, was insufficient to justify the court giving the proposed instruction on intoxication. Apart from defendant’s separate contention that the trial court erred in denying a continuance so that he could secure witnesses who would establish his defense of intoxication, which we also find to be meritless and shall address momentarily, we hold that the evidence would not have justified a jury’s determination that the defendant totally lacked the intent to commit a burglary as a result of voluntary intoxication. Accordingly, we find no error in the trial court’s refusal to give the tendered instruction on intoxication. (People v. Reynolds (1963), 27 Ill. 2d 523, 526, 190 N.E.2d 301; People v. Hayes (1988), 173 Ill. App. 3d 1043, 1048, 527 N.E.2d 1342; People v. Moon (1982), 107 Ill. App. 3d 568, 572, 437 N.E.2d 823; see also People v. Terry (1987), 154 Ill. App. 3d 162, 506 N.E.2d 786; People v. King (1978), 58 Ill. App. 3d 199, 373 N.E.2d 1045.) A trial court has the discretion to refuse to tender a defense instruction under such circumstances. People v. Arnold (1984), 104 Ill. 2d 209, 214, 470 N.E.2d 981.

Defendant next contends that he was prejudiced by the trial court’s refusal to grant his request for a continuance in order to secure the testimony of his mother and grandmother, who were prepared to testify at trial that he had ingested large amounts of alcohol and drugs on the day the offense occurred. He maintains that this testimony would have established that he was too intoxicated to have formulated the requisite intent to commit the crime. Thus, defendant argues that the trial court’s refusal to grant the continuance constitutes reversible error because such denial impeded the preparation of his defense and kept out evidence which would have been sufficient to justify the instruction on voluntary intoxication. We reject defendant’s circular argument here.

The grant or denial of a continuance rests within the sound discretion of the circuit court, and its ruling will not be disturbed on review absent a clear abuse of that discretion. (People v. Collins (1985), 106 Ill. 2d 237, 281, 487 N.E.2d 267.) In considering a trial court’s denial of a continuance when the continuance sought to secure the presence of a witness, a reviewing court must determine: (1) the existence vel non of diligence on behalf of the defendant in securing the witness’ presence; (2) the materiality of that evidence such that the lack thereof might affect the outcome of the trial; and (3) actual prejudice such that defendant was denied his right to a fair trial. People v. Sargent (1989), 184 Ill. App. 3d 1016, 1022, 540 N.E.2d 981; see also People v. Timms (1978), 59 Ill. App. 3d 129, 375 N.E.2d 1321.

Applying these factors to the instant case, we conclude that the trial court did not abuse its discretion by denying defendant’s request for a continuance. We have reviewed the record and found that defendant was arraigned on June 23, 1986. The first scheduled trial date was February 2, 1987. After at least 10 continuances and attempts to get defendant in the TASC program, the matter was set by agreement for a jury trial on September 22, 1987. The record shows that defense counsel failed to appear in court and the matter was held over until September 23, 1987. A scrutiny of the record shows that on the date set for trial, counsel first requested permission to “resume our [pretrial] conference and not to address the issue of trial as of yet.” The matter then was passed for a conference and re-called. At this time, defense counsel advised the court that he had not “filed a formal answer” and did not “have the [witness] list.” Then, counsel sought a continuance in order to secure the witnesses. He went on to state, inter alia, that he had not served subpoenas on certain medical personnel who would be used as witnesses; but, he made no mention of defendant’s mother or grandmother.

This case had been on the trial calendar for 15 months prior to trial which allowed counsel adequate time to prepare a defense, issue subpoenas and secure witnesses. Thus, it cannot be said that the defendant established due diligence in securing the witnesses.

During the actual trial, defense counsel offered the stipulation of the emergency nurse and rested his case. He offered no expert testimony on the extremity of defendant’s alcoholism or ability or lack thereof to function during intoxicated periods. He related to the court the unavailability of certain medical personnel but failed to mention defendant’s mother or grandmother. Accordingly, it cannot be said that the court abused its discretion in denying the continuance where the defendant had not informed the court of the reason for the witnesses’ absence at the time of the request for the continuance. Moreover, at the time he sought the continuance, counsel made no offer of proof to establish what the witnesses would have testified to had they been present. A defendant seeking a continuance to secure the presence of witnesses must make an offer of proof of that proposed testimony. (Sargent, 184 Illo. App. 3d at 1022; People v. Boyce (1977), 51 Ill. App. 3d 549, 559, 366 N.E.2d 914.) As defendant failed to do so here, we need not review this issue. See, e.g., People v. Martin (1981), 101 Ill. App. 3d 480, 485, 428 N.E.2d 591.

It was not until the hearing on the post-trial motion for a new trial that defense counsel informed the court that the witnesses were in court the first day of the proceeding but were unable to attend the trial thereafter because of a death in the family. He argued that the witnesses would have testified as to defendant’s past addiction and alcoholism and his alleged intoxication on the date of the incident. However, as previously noted, proof of even chronic alcoholism cannot exempt a defendant from criminal liability in a burglary prosecution. (See People v. Davis (1977), 54 Ill. App. 3d 517, 369 N.E.2d 1376.) Moreover, the fact that a defendant was intoxicated on the date of the offense, standing alone, is insufficient evidence to support a defense of intoxication. See People v. Hurt (1988), 175 Ill. App. 3d 970, 530 N.E.2d 698.

Notwithstanding any testimony defendant’s mother and grandmother would have presented as to the defendant’s state of intoxication at or near the time of the offense, we find that such evidence would not have materially affected the outcome of the trial. As stated above, we believe the facts as a whole establish that defendant acted with the requisite mental state.

As to actual prejudice, it must appear from a review of the entire record that the trial court’s denial of a continuance resulted in the defendant’s attorney not being able to adequately and competently represent him. (See People v. Davis (1970), 45 Ill. 2d 514, 261 N.E.2d 314.) We need not restate the facts or rationale heretofore presented. Suffice it to say that the trial court’s denial of a continuance did not prevent defendant’s attorney from properly representing him or cause him prejudice.

Defendant also alleges ineffective assistance of counsel. Specifically, defendant alleges that counsel’s conduct may have amounted to unacceptable professional competence, which would also constitute reversible error, because of his failure to state the reason why a continuance was warranted.

Under the two-part test for determining claims of ineffective assistance of counsel, defendant must show that counsel’s performance fell below an objective standard of reasonableness, and that but for the errors, the result of the proceeding would have been different. Strickland v. Washington (1984), 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068.

We have examined the totality of counsel’s representation of the defendant here, both during trial and at the sentencing hearing. Before trial, counsel attempted to get defendant in the TASC program. He extensively questioned witnesses during cross-examination. The record also indicates that trial counsel made an opening statement, interposed objections throughout the trial, and offered a closing argument. (See People v. Hayes (1972), 52 Ill. 2d 170, 175, 287 N.E.2d 465.) Even assuming counsel’s failure to present any evidence as to a defense of intoxication or to inform the court of the reason his witnesses were unavailable constitutes deficient performance, we conclude that defendant did not suffer such prejudice as would change the outcome of the jury’s verdict. There is no indication that the result would have been different in view of the strong evidence that defendant acted knowingly and intentionally at the time of the burglary as witnessed by several eyewitnesses. See generally People v. Weir (1986), 111 Ill. 2d 334, 490 N.E.2d 1.

Finally, defendant maintains that the trial court’s sentence of 12 years was an abuse of discretion. The standard of review of a sentence alleged to be excessive is whether in fact the trial court exercised its discretion, and if so, whether this discretion was abused. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 531 N.E.2d 366.) Although imposition of a sentence is a matter within the trial court’s discretion (see People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344), the reviewing court has the power and authority under Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)) to reduce a sentence. But this court generally will not do so where such sentence falls •within the statutory limit and there has been no abuse of discretion. La Pointe, 88 Ill. 2d at 492.

Our constitution mandates that penalties be determined both according to the offense and "with the objective of rehabilitating the offender. (Ill. Const. 1970, art. I, § 11; see also People v. Gibbs (1977), 49 Ill. App. 3d 644, 531 N.E.2d 366.) This process requires consideration of all factors in aggravation and mitigation. (See People v. O’Neal (1988), 125 Ill. 2d 291, 532 N.E.2d 366.) However, because it is within the discretion of the trial court, after taking in consideration the particular facts and circumstances of the case and the defendant’s prior history, to impose a particular sentence (People v. Almo (1985), 108 Ill. 2d 54, 70, 483 N.E.2d 203), it is outside the province of this court to reweigh those factors. People v. Arnold (1985), 139 Ill. App. 3d 429, 436, 487 N.E.2d 997.

Moreover, while the statutory classification of a crime is determinative of the range of permissible sentences, certain types of conduct may warrant different penalties under the same statute. (See generally People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) Although burglary is a Class 2 felony (Ill. Rev. Stat. 1983, ch. 38, par. 19 — 1(b)), punishable by three to seven years’ imprisonment under section 5 — 8—1(a)(5) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38. par. 1005 — 8—1(a)(5)), an extended term of 7 to 14 years may be imposed (see Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 8—2(a)(4)), where factors in aggravation as set forth in section 5 — 5—3.2(b) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.2(b)) are present.

At the sentencing hearing defendant’s mother and grandmother testified that he had had a problem with drugs and alcohol for years but did well in out-patient treatment programs. The State noted defendant’s numerous convictions and first recommended a Class X felony conviction. However, after reviewing the presentence report and clarifying the dates of defendant’s prior convictions, the State recommended an extended-term sentence. The trial judge commented upon the need to deter others, the matters in mitigation and aggravation, and defendant’s prior criminal history and sentenced him to 12 years’ imprisonment.

After reviewing the record, which includes the mitigating and aggravating factors and the fact defendant had been under prior court supervision, numerous rehabilitative attempts had all failed (see People v. Rogers (1978), 64 Ill. App. 3d 290, 382 N.E.2d 1236, aff’d (1979), 75 Ill. 2d 593, 401 N.E.2d 1391), and defendant had previously, within 10 years, been convicted of the same or greater felony (see Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—3.2(b)(1)), we hold that the trial court’s imposition of an extended-term sentence of 12 years was not an abuse of discretion.

The judgment of the circuit court of Cook County is accordingly affirmed.

Affirmed.

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

      The trial court had originally sentenced defendant to a term of 14 years as a Class X offender. However, upon motion by the State, sentencing was reopened. The State pointed out that defendant’s convictions in the middle of 1977 should not have been included as part of the record because they occurred prior to the effective date of the Class X sentencing act.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    RICHARD LUCAS et al., Plaintiffs and Counterdefendants-Appellees, v. WILBUR L. BEATON, JR., et al., Defendants and Counterplaintiffs-Appellants.
    First District (1st Division)
    No. 1-88-1407
    Opinion filed June 29, 1990.

      Harvey J. Barnett & Associates, Ltd., of Chicago (Michael S. Blazer, of counsel), for appellants.
    McCracken & Walsh, of Chicago (Thomas J. McCracken, Jr., and Thomas G. Moffitt, of counsel), for appellees.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Richard Lucas, Richard Johnson, Wallace Oshiro, Kenneth Darby and David Accardi (plaintiffs) brought a declaratory judgment action against Wilbur L. Beaton, Jr., and Rosonne Delagarza (defendants) in the circuit court of Cook County, seeking a declaration that plaintiffs were relieved from their contractual obligation to defendants to pay the remaining balance on the purchase price of a corporation’s stock due to defendants’ breach of a noncompetition covenant. Defendants, in turn, filed a counterclaim seeking to recover the $22,000 remaining balance. Following a bench trial, the circuit court entered judgment in favor of plaintiffs on the complaint and counterclaim. Defendants appeal from both judgments, contending that the circuit court committed reversible error in relying on parol evidence to construe the noncompetition covenant and that the court’s finding that defendants breached the terms of the noncompetition covenant is against the manifest weight of the evidence. We affirm.

In late 1982, plaintiffs, who were operating a private investigation firm, entered into discussions with defendants regarding the sale of defendants’ companies. In a “Stock Transfer Agreement,” dated January 1, 1983, defendants sold to plaintiffs all of the stock in Beaton Services, Ltd., a process serving company, for a purchase price of $52,000. The agreement provided that the $52,000 was to be paid $20,000 initially with the remaining $32,000, designated as payments for consulting fees for tax purposes, over a four-year period. Beaton retained his ownership interest in his private investigation company, known as Beaton & Associates, as well as the right to use the name “Beaton.” The agreement also contained a covenant not to compete, which provided:

“The Sellers, and each of them, either in their individual names, or in the name of any Corporation or partnership or other business entity with which they may be associated or employed, or in which they shall have any ownership interest, covenant and agree that they will not, for a period of five (5) years from the date hereof, compete with the Corporation in offering or performing process serving and/or fingerprinting business or services in the Chicago metropolitan area, being defined as Cook County and the adjacent five (5) counties, which covenant is conditioned upon neither the Corporation nor the Purchaser being in default under any of the terms hereof.”

On March 16, 1984, Beaton & Associates and Beaton entered into an agreement with Hampson & Associates, Inc., and Thomas R. Hampson for the sale of the assets of the private investigation company for $40,000, to be paid $10,000 in the first year with the remaining balance, denominated as fees for consulting services rendered by Beaton under a consulting provision, over a three-year period. As a contingency to the agreement and under risk of being assessed $5,000 in liquidated damages for failure to do so, the agreement required Beaton to provide his private detective license for use in the business. The agreement’s consulting provision entitled Beaton to a percentage of gross profits in lieu of the fixed payments in the event the company reached specified levels of income. It also entitled Beaton to sales fees in the form of percentages of gross revenues for any new business that he would introduce to the company.

Immediately following the sale, Hampson began operating the business under the new name of Beaton & Associates, Inc. Shortly thereafter, Hampson began to engage in the business of process serving. In August of 1984, Hampson segregated Beaton & Associates’ process serving function from its private investigation function into a separate corporation known as Search International Services.

In their complaint for declaratory judgment, plaintiffs alleged that defendants breached the noncompetition covenant in the stock transfer agreement in that they “have performed and continued to perform process serving in the Chicago metropolitan area in direct competition with [plaintiffs].” In their counterclaim, defendants alleged that they had performed all duties required of them under the agreement. The trial on these claims adduced the following testimony.

On adverse examination, Hampson testified that his company performed process serving as an accommodation to clients and as a means to develop a relationship. After he began to engage in the process serving business, he had a discussion with Beaton in May or June 1984, wherein Beaton expressed concern about being associated with Hampson’s process serving due to the agreement with plaintiffs. Hampson again discussed the matter with Beaton in the summer of 1984, and, to accommodate Beaton, Hampson informed him that he would use a separate corporation for the process serving. The letterhead and the billing for the new corporation continued as Beaton & Associates until a different letterhead was acquired in October or November of 1984.

Hampson admitted that the name Beaton & Associates, Inc., is listed with the name Search International throughout the companies’ advertising brochure and on their letterheads. He also acknowledged Beaton & Associates’ advertisement listing Beaton and Hampson in equal prominence in the Sullivan’s Law Directory, as well as the 1985 Official Directory of the Council of International Investigators, in which Beaton listed himself as being associated with Beaton & Associates. He further acknowledged Search International’s advertising circular representing itself as a “family of investigative services” and representing that “for more than 20 years Beaton & Associates has been recognized throughout the Chicago area as a leader in the investigation field.” Hampson stated that Beaton refused to distribute the brochures which included the process serving advertisement and that Beaton never distributed any advertising material for him.

Hampson testified that his two companies operated out of the same office, used the same furniture, possessed the same telephone number, answered as “Beaton & Associates,” and shared a secretary who was paid by Beaton & Associates. Hampson identified numerous bills from each company which were paid out of the account of the other company. Hampson stated that an employee who performed both investigative and process services for a client would be paid solely by Beaton & Associates, and clients, in instances where the investigative services were performed for another detective agency, would be billed payable to Search International.

Hampson further testified that Beaton & Associates used Beaton’s detective license until 1987 and that Beaton continued to accept payments under the sale of assets agreement until the installments were fully paid in March 1987, although he never received a percentage of gross revenue in lieu of the fixed payments. Hampson contemplated that Beaton would solicit business for Beaton & Associates, and commission payments were made to Beaton, although “[not] very many,” pursuant to the agreement’s new-client referral provision. Hampson identified a $40 check as one of those payments.

Hampson additionally testified that neither Beaton nor Delagarza has ever owned an interest in, or has been an officer of, either of his companies. Delagarza performed two days’ typing work for which Beaton & Associates paid her $80, but she never performed any other services. Beaton referred investigative clients to the investigation company and, pursuant to the terms of the consulting agreement, initially provided advice on client and attorney relations and routine office matters, but he was never in charge of, or had any voice in, either company. Neither Beaton nor Delagarza has ever performed any process serving for the companies.

Lucas testified that when he informed Beaton in the summer of 1984 that he had learned of Beaton & Associates’ process serving, Beaton denied any involvement with Beaton & Associates. Lucas testified that when he would telephone Beaton at the Beaton & Associates number during the spring of 1984 through the fall of 1984, messages were taken for him. On cross-examination, Lucas admitted that he was not aware since January 1, 1983, of any instance where Beaton or Delagarza personally served any legal paper.

Victor May, a private detective for 20 years, testified that the investigation business and the process serving business are closely related and that, in his experience, performing process serving increases investigation business 50% of the time.

Beaton testified that when he suspected Hampson was process serving, he told him of his desire not to be involved in process serving. Beaton stated that he never distributed advertising materials for Hampson’s companies, nor did he refer any process serving clients to the companies. He further testified that his full-time employment since March 18, 1984, has been at the Cook County medical examiner’s office.

In entering judgment in favor of plaintiff on the complaint and counterclaim, the circuit court found that Beaton had breached the covenant not to compete by being associated with a company which performed process serving. It found that Delagarza was also in breach of the covenant by virtue of the joint and several obligations under the noncompetition covenant.

On appeal, defendants first contend that the circuit court violated established contract principles by relying on parol evidence to construe the noncompetition covenant. It is established that a court’s primary objective in construing a contract is to give effect to the intention of the parties (Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 154 N.E.2d 683) and that contract terms must be given their ordinary and natural meaning where the terms are clear and unambiguous (Board, of Education v. Chicago Teachers Union, Local 1 (1980), 89 Ill. App. 3d 861, 412 N.E.2d 587, rev’d on other grounds (1981), 88 Ill. 2d 63, 430 N.E.2d 1111). Accordingly, where the contract is unambiguous, there is no need to inquire into the intention of the parties. P.A. Bergner & Co. v. Lloyds Jewelers, Inc. (1986), 112 Ill. 2d 196, 492 N.E.2d 1288.

At no time during trial did the court find the noncompetition clause to be ambiguous. It allowed testimony from Lucas regarding the negotiations to the agreement and his understanding of the non-competition covenant, but only for the purpose of determining the materiality of the noncompetition covenant for the joint and several liability issue. Its remarks during the directed verdict and closing argument stages demonstrate its reliance on the four comers of the agreement to construe the noncompetition clause as prohibiting defendant from associating with a company which engages in process serving. Despite the court’s clear position throughout the evidentiary and argument stages, its comments, when entering judgment two weeks following the trial, indicate that it relied on extrinsic evidence in its ruling on the meaning of the terms of the agreement:

“Plaintiffs say *** the language [in plaintiffs’ contract] makes clear, in the context in which it was negotiated, that defendants could not compete either individually or through an association with another competing business.
* * *
Unquestionably [the language in the Hampson contract] makes it unmistakable that Beaton cannot engage in competitive activity *** in any business that engages in competitive activity ***.
I agree that the language [in plaintiffs’ contract] is not as unmistakable as [the language in the Hampson contract.] However in my judgment, although in different words ***, in the context in which it was agreed, Paragraph (c) in effect limits WB, or Wilbur Beaton, and Rose Delagarza’s conduct in the same way ***.
* * *
That is the only interpretation that makes any sense in my opinion, given the context within which the deal between plaintiff and defendant was made.
* * *
Despite the somewhat ambiguous language of [plaintiffs’ contract], and given the testimony concerning the negotiations and given the context in which they occurred and the objective served by the agreement, in my opinion the parties unquestionably intended to limit Beaton and Delagarza’s competitive activity both individually or personally and associationally through a competing business.”

From the above, it is evident that the court erred in relying on extrinsic evidence in determining the meaning of the covenant since it had not found the agreement to be ambiguous or admitted the extrinsic evidence for that purpose.

Defendants contend that, as a result of the court’s improper reliance on the extrinsic evidence, it found a meaning contrary to the unambiguous terms of the clause. Plaintiffs, on the other hand, argue that any improper reliance on this extrinsic evidence was harmless because defendants were not prejudiced since the evidence was merely cumulative in light of the unambiguous language of the non-competition clause itself.

The question of whether a contract is ambiguous is a question of law to be determined by the court. (Lenzi v. Morkin (1983), 116Ill. App. 3d 1014, 452 N.E.2d 667; Board of Education, 89 Ill. App. 3d 861, 412 N.E.2d 587.) A contract is ambiguous only where the language is reasonably and fairly susceptible to more than one meaning (Lenzi, 116 Ill. App. 3d at 1016, 452 N.E.2d 669), and assertions by the parties that contrary meanings should be ascribed to the language are not determinative of the issue (Board of Education, 89 Ill. App. 3d at 866,412 N.E.2d at 591).

Defendants assert that, contrary to the court’s finding that the noncompetition clause prohibited defendants from competing with plaintiffs in the offering of process serving in their own name or in association with any entity, the language only precludes defendants from offering or performing process serving individually or in the name of another company. The clause, defendants explain, first sets forth to whom it applies — sellers in their individual names or in the name of any business entity with which they are associated — and then prohibits them from “competing,” defined as “the offering or performing of process serving.”

The circuit court found this interpretation made “no sense at all” because it would allow defendants to own a competing company, as long as they personally did not compete. It noted that defendants could argue that the words “the sellers *** will not *** compete” are broad enough to embrace a competing business owned by defendants, but reasoned that if that were the intent, then the words “in the name of any *** business entity *** in which they have an ownership interest” would be superfluous and unnecessary.

We believe that the court’s reading of the language is the correct construction of the covenant and that the language is unambiguous since it is not reasonably susceptible to more than one meaning. Accordingly, because the court’s interpretation of the clause may be ascertained as a matter of law from the unambiguous terms of the noncompetition clause itself, we find the court’s improper reliance on extrinsic evidence in reaching its ruling to be harmless. See Canales v. Dominick’s Finer Foods, Inc. (1981), 92 Ill. App. 3d 773, 416 N.E.2d 303; In re Wheeler (1980), 86 Ill. App. 3d 564, 408 N.E.2d 424; McFail v. Braden (1960), 19 Ill. 2d 108,166 N.E.2d 46.

Defendants alternatively contend that the circuit court erred in finding that they were associated with a process serving company. Defendants recognize that this finding is a factual finding which will not be disturbed on review unless it is against the manifest weight of the evidence. (See In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 378 N.E.2d 800.) Nonetheless, they assert that a reversal is warranted because, notwithstanding some evidence as to Beaton’s connection with Beaton & Associates, the investigative company, no evidence was presented to show any association with process serving.

The record, however, demonstrates that requisite proof of Beaton’s association with Beaton & Associates would support the court’s finding because of the uncontroverted evidence that Beaton & Associates engaged in the process serving business shortly after Hampson acquired the investigation company in March 1984 until at least August 1984 when Hampson formed the separate corporation of Search International. Sufficient proof of such an association was adduced at trial.

Following the sale of the assets of Beaton & Associates in 1984 until 1987, Beaton & Associates used Beaton’s detective license. Illinois law requires that a detective agency have a “full-time Illinois licensed private detective in charge” and that corporations operating as detective agencies have “at least one officer or executive employee” so licensed. (See Ill. Rev. Stat. 1985, ch. Ill, par. 2664(d)(3).) In addition to this connection, Beaton had a potential financial interest in Beaton & Associates through his contractual right to receive a percentage of the company’s profits in circumstances where the company reached certain levels of income and Beaton received commission payments, albeit “[not] very many,” under the agreement’s new-client referral provision. Beaton also initially provided consulting and advice to Beaton & Associates on client, attorney and office matters. Finally, Beaton’s name was prominently displayed in Beaton & Associates’ advertisement and Beaton represented himself as being associated with Beaton & Associates in an official directory.

This evidence supports a finding that defendants violated the noncompetition covenant not only because Beaton & Associates itself performed process serving, but also because of Beaton & Associates’ intimate relationship with a company performing process serving. Hampson’s testimony that process serving is performed as an accommodation to their investigative clients and as a means of developing a relationship, as well as May’s testimony that process serving increases investigation business 50% of the time, demonstrates that the business functions of Beaton & Associates and Search International were closely intertwined. Possessing such an interrelationship, the two companies listed themselves together on letterheads and advertised jointly in the same advertising brochure, which listed the companies as members of a “family of investigative services.” The two companies also operated out of the same office, possessed the same telephone number, which' answered “Beaton & Associates,” shared the same employees, and commingled their funds. From this evidence, we believe the court could properly find that defendants associated with a process serving company through their association with a company so intimately related to a process serving company.

Accordingly, we hold that the circuit court correctly construed the terms of the noncompetition covenant and that its finding that Beaton associated with a process serving company is not against the manifest weight of the evidence.

Affirmed.

CAMPBELL and MANNING, JJ., concur.

      As defendants have not raised the issue of Delagarza’s joint and several obligation under the noncompetition covenant, we will assume the correctness of the circuit court’s ruling on this issue.


author: JUSTICE CAMPBELL

text:
    ANITA FILIP, Plaintiff-Appellee, v. THE NORTH RIVER INSURANCE COMPANY, Defendant-Appellant.
    First District (1st Division)
    No. 1-88-1503
    Opinion filed June 29, 1990.

      Johnson, Cusack & Bell, Ltd., of Chicago (Scott W. Hoyne, of counsel), for appellant.
    Milton M. Blumenthal & Associates, of Chicago (Michael L. Blumenthal, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant, The North River Insurance Company (North River), appeals from the entry of summary judgment in favor of plaintiff, Anita Filip, named insured on an automobile liability policy issued by North River (the Policy), in an action seeking a declaratory judgment as to North River’s obligation under the Policy for plaintiff’s claim for loss of consortium due to the physical injuries suffered by her husband, George, also a named insured on the Policy, when he was struck by an uninsured motorist. The sole issue on appeal is whether the loss of consortium suffered by plaintiff constitutes a “bodily injury” within the terms of the Policy. For the following reasons, the judgment of the trial court is affirmed.

The following facts are relevant to this appeal. The Policy provides for maximum uninsured motorist coverage limits of $100,000 per person and $300,000 per accident for bodily injury. George Filip submitted a claim to North River for his physical injuries, and plaintiff submitted a claim for loss of consortium. North River paid George Filip $100,000, the maximum per person liability. However, it denied plaintiff’s claim on the ground that its payment to George had fulfilled its obligations under the Policy. Consequently, plaintiff filed a verified complaint for declaratory judgment as to the rights and liabilities of the parties regarding her loss of consortium claim.

North River moved for judgment on the pleadings, arguing that plaintiff was not entitled to recovery because she had not been involved in the accident and had sustained no direct injury. In response, plaintiff filed a countermotion for summary judgment, arguing that pursuant to the Policy’s definition of “bodily injury,” loss of consortium is covered. The trial court denied North River’s motion for judgment on the pleadings and granted plaintiff’s motion for summary judgment. In reaching its decision, the trial court stated:

“[T]he term bodily injury is, in the instant case, defined to mean injury among other things, and *** loss of consortium [is] *** a ‘personal injury.’ ”

North River’s timely appeal followed.

It is well accepted that parties to an insurance policy are bound by the agreements that they make (Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 513 N.E.2d 1168) and definitions contained within the Policy are controlling. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) This is particularly true when an insurance policy defines terms in a manner which differs from the ordinary understanding of the terms. (Allstate Insurance Co. v. Handegard (1984), 70 Or. App. 262, 688 P.2d 1387.) In the present case, the Policy broadly defines “Bodily injury” as “injury, sickness, disease or death.” “Loss of consortium” has been consistently defined by Illinois courts as an “injury.” (Creamer v. State Farm Mutual Automobile Insurance Co. (1987), 161 Ill. App. 3d 223, 514 N.E.2d 214; Pease v. Ace Hardware Home Center (1986), 147 Ill. App. 3d 546, 498 N.E.2d 343; Brown v. Metzger (1983), 118 Ill. App. 3d 855, 455 N.E.2d 834.) Therefore, by its own terms, the Policy includes loss of consortium as a compensable bodily injury.

In arguing against this interpretation, North River relies on Gass v. Carducci (1964), 52 Ill. App. 2d 394, 202 N.E.2d 73, Creamer v. State Farm Mutual Automobile Insurance Co. (1987), 161 Ill. App. 3d 223, 514 N.E.2d 214, and Lepic v. Iowa Mutual Insurance Co. (Iowa 1987), 402 N.W.2d 758. A review of these cases finds them to be distinguishable and unpersuasive. In Gass and Lepic, the courts construed the terms “one person” and “each person” as they appeared in the respective policies. In the present case, an entirely different term, i.e., “bodily injury,” is at issue. In Creamer, the policy defined “bodily injury” as “bodily injury to a person and sickness, disease or death which results from it.” (Creamer, 161 Ill. App. 3d at 224.) Predicated on that definition, the Creamer court held that “bodily injury,” as defined by the relevant policy, did not include loss of consortium, which was a type of personal injury. In contrast to the policy in Creamer, the Policy in the present case defines “bodily injury” as “injury,” thereby broadening the ordinary definition of “bodily injury” to encompass all types of injury, including the personal injury of loss of consortium.

North River further argues that section 143a of the Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a) provides extrinsic evidence as to its intent not to include loss of consortium in its definition of “bodily injury.” Section 143a provides, in relevant part:

“[N]o policy *** insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued *** unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7 — 203 of The Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom ***.” Ill. Rev. Stat. 1989, ch. 73, par. 755a(2).

North River argues that its Policy language “mimics almost exactly the language of” section 143a. North River is correct in stating that its Policy definition “almost” replicates the language of section 143a. However, it is the Policy’s deviation from the exact language of section 143a which renders North River’s argument unpersuasive. Unlike the Policy, section 143a does not define “bodily injury.” Rather, it merely sets forth separate circumstances which will trigger an insurer’s liability for damages, i.e., “bodily injury, sickness or disease, including death.” Although North River’s Policy incorporates the same language, it changes the meaning of section 143a by defining “bodily injury” as “injury, sickness, disease, or death.” By doing so, North River demonstrates an intent to broaden the circumstances which trigger liability rather than an intent to “mimic” section 143a.

North River further argues that it would be against public policy to hold that loss of consortium is payable under a separate “per person” limit of liability because that decision would effectively double the amount of potential recovery for each automobile accident involving an insured motorist. In addition, North River contends that the word “injury” was intended to reiterate “the type of traumatic physical injury to one’s body that insurers and insureds alike understand to be encompassed by the term ‘bodily injury.’ ” However, not only is this intent not evidenced by the Policy’s definition, a contrary intent is evidenced by use of the broader term “injury.” As previously stated, parties to an insurance policy are bound by the agreements they make. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872; Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 513 N.E.2d 1168.) If North River desires to limit its liability under the Policy, it has the option of amending the definitions of the terms.

Finally, North River argues that by “placing undue emphasis upon the word ‘injury’, plaintiff has distorted the purpose of the Policy and the intent of the parties.” Specifically, North River contends that if “bodily injury” is construed to include all injuries, then “sickness, disease and death” would be redundant. In light of the fact that insurance policies consistently define “bodily injury” as “bodily injury,” North River’s argument as to the impropriety of redundancy in insurance policies is unpersuasive. (Creamer v. State Farm Mutual Automobile Insurance Co. (1987), 161 Ill. App. 3d 223, 224, 514 N.E.2d 214 (“bodily injury” defined as “bodily injury to a person”); Giardino v. Fierke (1987), 160 Ill. App. 3d 648, 654, 513 N.E.2d 1168 (“ ‘Bodily Injury’ means bodily injury to any person”); Campbell v. Farmers Insurance Co. (1987), 155 Ariz. 102, 745 P.2d 160 (“Bodily injury” is defined as “bodily injury”); Albin v. State Farm Mutual Automobile Insurance Co. (La. 1986), 498 So. 2d 171 (“Bodily Injury-means bodily injury to a person”); Allstate Insurance Co. v. Handegard (1984), 70 Or. App. 262, 688 P.2d 1387 (“Bodily injury” is defined as “Bodily injury”).) As these cases indicate, in order to limit its liability in the present case, North River should have defined “bodily injury” by its own term rather than by a term which broadened its ordinary meaning.

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

Affirmed.

O’CONNOR and MANNING, JJ., concur.


author: JUSTICE MANNING

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, State of Illinois, Plaintiff-Appellant, v. NORTHERN ILLINOIS MORTGAGE COMPANY, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1-88-1786
    Opinion filed June 29, 1990.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Valerie J. Peiler, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Pinderski & Pinderski, Ltd., of Palatine (Jerome W. Pinderski, Jr., and Paul C. Pinderski, of counsel), for appellees.
   JUSTICE MANNING

delivered the opinion of the court:

The sole issue presented for review is whether the circuit court erred when it granted summary judgment in favor of the defendants, Northern Illinois Mortgage Company, Inc. (Northern), and Rick Weir, an officer and director of the company. Plaintiff contends that there were genuine issues of material fact that precluded the entry of summary judgment. For the reasons stated below, we reverse the order of the circuit court and remand the cause for further proceedings.

Northern, an Illinois corporation, was engaged in the business of making, soliciting or obtaining borrowers or lenders for, or negotiating home mortgage loans in the State of Illinois. Northern was licensed as a mortgage banker pursuant to “An Act to Provide for the Regulation of Mortgage Bankers” (the Mortgage Banker’s Act) (Ill. Rev. Stat. 1985, ch. 17, par. 2301 et seq.).

On June 25, 1987, plaintiff filed a two-count complaint against the defendants. Count I alleges that defendant engaged in a course of conduct which constitutes unfair or deceptive practices and unfair methods of competition in violation of section 2 of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121%, par. 262).

Specifically, count I of the complaint asserts that numerous consumers made application for new or refinanced home mortgage loans with Northern. Count I alleges inter alia that in the course of advertising, accepting and processing these applications, defendants: (1) charged consumers a nonrefundable application fee to defray the cost of services by third persons, but failed to disclose to the consumers that these services were solely to benefit the lender; (2) charged certain consumers a loan origination fee to guarantee, commit or “lock in” a loan at a certain interest rate plus points, but failed to lock in the loan at the agreed rate and points; (3) refused to refund fees; (4) furnished consumers with a “Good Faith Estimate of Settlement Charges” which did not reflect the actual settlement charges; (5) represented to consumers that they were locked in at a certain rate; however, if the prevailing market rate dropped and upon payment of an additional fee, they could relock in at a lower rate; (6) represented to consumers that their loan would close promptly or within a reasonable period of time, but failed to either process and approve the loan applications or close the loans promptly or within the guarantee period; and (7) failed to disclose that they were acting as a broker and were not the lender or investor of funds.

Count II of the complaint realleges the paragraphs of count I and alleges therefore that defendants engaged in deceptive trade practices in violation of section 2 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1985, ch. 12lxk, par. 312).

On November 10, 1987, defendants served plaintiff with a request for admission of facts pursuant to Supreme Court Rule 216 (107 Ill. 2d R. 216). Plaintiff did not respond to the request or file any objections thereto. Thereafter, defendants filed a motion for summary judgment. They argued that plaintiff’s admission of facts foreclosed any finding of violations as alleged in the complaint. The circuit court granted defendants’ motion for summary judgment on May 17, 1988, from which order plaintiff has appealed.

We believe that the circuit court erred in entering summary judgment for defendants. A party is entitled to summary judgment only when the pleadings, depositions, and admissions on file show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867; Olivieri v. Coronet Insurance Co. (1988), 173 Ill. App. 3d 867, 870, 528 N.E.2d 986.) Summary judgment procedure is not intended to be used as a means of trying issues of fact, but rather, as a means of determining whether there are issues of fact to be tried. The movant’s right to summary judgment must be clear and determinable solely as a question of law. Olivieri, 173 Ill. App. 3d at 870.

Plaintiff contends on appeal that the circuit court erred in granting summary judgment in favor of defendants because the facts which were deemed admitted and relied upon as the basis for the summary judgment have no relevance to the material issues of fact alleged in the complaint. Conversely, defendants asserted in their motion for summary judgment that the allegations of the complaint “in short state at best that Northern was a poor mortgage banker” and that the “actual facts admitted contradict each of these allegations.”

Initially, we point out that neither party cites any law on point to support its position. Further, we find the briefs to be particularly non-responsive to the issue. In fact, the arguments which have been presented have little or no bearing on the narrow issue at hand. For instance, the issue here does not concern the effect of purported res judicata administrative decisions on judicial proceedings. Instead, we are concerned solely with the issue of whether or not summary judgment was appropriate in this case as a result of the admissions on file.

Supreme Court Rule 216(a) governs requests for admission of fact and provides:

“A party may serve on any other party a written request for the admission by the latter of the truth of any specified relevant fact set forth in the request.” (107 Ill. 2d R. 216(a).)

Rule 216(c) governs admission in the absence of denial and provides in relevant part that where the party fails to respond or object to the request, “[e]ach of the matters of fact *** of which admission is requested is admitted.” 107 Ill. 2d R. 216(c).

As a result of plaintiffs failure to respond to defendants’ request for admission of fact, it admitted the following facts:

1. The Commissioner of Savings and Loan Associations (Commissioner) is charged with the administration of the Mortgage Banker’s Act.
2. Northern, as a mortgage banker, was governed by the Mortgage Banker’s Act.
3. The Commissioner was charged with the duty of licensing Northern.
4. As part of his duties, the Commissioner had the responsibility to review and supervise the banking activities of Northern.
5. The Commissioner issued Northern its original license in 1986 and its renewal license in May 1987.
6. Prior to the issuance of the renewal license, the Commissioner reviews the activities of a mortgage banker to determine compliance with the Mortgage Banker’s Act.
7. In issuing the renewal license, the Commissioner stated on the face of the renewal license that Northern was in full compliance with the Mortgage Banker’s Act.
8. The Commissioner has not instituted proceedings to suspend or revoke Northern’s license.

Although a trial court may properly find that a party’s failure to respond to requests for admission of facts constitutes an admission of those facts (see Chapman v. Foggy (1978), 59 Ill. App. 3d 552, 375 N.E.2d 865; see also Homer G. Dickson & Co. v. Barraza (1983), 115 Ill. App. 3d 5, 449 N.E.2d 990; Bullock v. Adams (1981), 102 Ill. App. 3d 379, 430 N.E.2d 534, cert. denied (1982), 457 U.S. 1134, 73 L. Ed. 2d 1351, 102 S. Ct. 2961), and warrants entry of judgment on the pleadings (see City of Champaign v. Roseman (1959), 15 Ill. 2d 363, 155 N.E.2d 889) or summary judgment (Colwell Systems, Inc. v. Henson (1983), 117 Ill. App. 3d 113, 452 N.E.2d 889), we believe that the facts admitted here did not warrant entry of summary judgment.

In the case at bar, the plaintiff’s admissions merely established that Northern was issued a license and a renewal license by the Commissioner pursuant to the Mortgage Banker’s Act. However, plaintiff’s complaint does not allege that Northern was operating without a license. The complaint alleges that defendants were engaged in a course of conduct amounting to a pattern of unfair or deceptive acts or practices against certain consumers. None of the admissions establish demonstratively that Northern was or was not engaged in a course of conduct violative of the Consumer Fraud Act and Uniform Deceptive Practices Act. As a consequence, we are unable to conclude, after taking into consideration the allegations in the complaint and the admissions on file, that there is no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law. In our opinion, the facts which were deemed admitted were insufficient to support the circuit court’s grant of summary judgment and the issue still remains whether the defendants engaged in conduct which constituted deceptive trade practices.

However, we realize that our holding today may be construed as a presupposition that the plaintiff’s cause of action against the defendants was proper. Therefore, for purposes of guidance for the trial court on remand, we will briefly comment on the argument indirectly raised by the parties. Both parties raise the implicit question of whether the mere existence of a license issued by the Commissioner conclusively establishes compliance by the licensed party with the Mortgage Banker’s Act and precludes allegations of violations of any other State laws. Corollary questions arise as to the effect of an agency’s stamp of approval during the licensing process and whether the Commissioner of a regulating agency and the Attorney General share exclusive, conflicting or overlapping jurisdiction to enforce laws applicable to mortgage bankers.

These concerns present questions of law. We believe they need to be addressed in the first instance by the circuit court on remand. The court below is in a better position to review the evidence, look into the legislative history of the several acts, and receive testimony, legal memoranda and other materials to determine the intent of the legislature under these circumstances. The current law, i.e., the Residential Mortgage License Act of 1987, is clearer on the subject and gives the Commissioner discretionary power to request the Attorney General “to issue an injunction to restrain any person from violating or continuing to violate *** [the] Section.” (Ill. Rev. Stat. 1987, ch. 17, par. 2321 — 3(c).) Unfortunately, however, the law in effect for purposes of this appeal, i.e., the Mortgage Banker’s Act, is not so clearly defined. Consequently, the court on remand must address this question of law. If it determines that the Attorney General had no right under the circumstances to bring the cause of action, this suit must be dismissed. However, if the trial court finds that the suit was proper, it must then proceed with trial to determine the fact issues yet to be resolved.

For the foregoing reasons, we reverse the trial court’s order granting summary judgment on behalf of the defendants and remand this cause for further proceedings not inconsistent with this opinion.

Reversed and remanded.

BUCKLEY, P.J., and CAMPBELL, J., concur.

      The Mortgage Banker’s Act was repealed by Pub. Act 85 — 735, art. VI, §6 — 2, effective January 1, 1988, and Pub. Act 85 — 1209, art. II, §2 — 6, effective August 30, 1988. Commencing January 1, 1988, mortgage bankers are now regulated and governed by the “Residential Mortgage License Act of 1987” (Ill. Rev. Stat. 1987, ch. 17, par. 2321 — 1 et seq.).


author: JUSTICE BILANDIC

text:
    JOHN J. RAUH, Plaintiff-Appellant and Cross-Appellee, v. ROCKFORD PRODUCTS CORPORATION, Defendant-Appellee and Cross-Appellant.
    First District (2nd Division)
    No. 1-89-0650
    Opinion filed June 29, 1990.

      Jeremiah Marsh, Michael M. Conway, and Sharon H. Rice, all of Hopkins & Sutter, of Chicago, for appellant.
    Charles R. Kaufman and John A. Relias, both of Vedder, Price, Kaufman & Kammholz, of Chicago, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

In March 1987, plaintiff, John J. Rauh, was discharged by defendant, Rockford Products Corporation (Rockford). Plaintiff exercised his contractual right to arbitration, which resulted in the issuance of an opinion and order of the arbitrator affirming plaintiff’s discharge and the denial of both parties’ requests for fees and costs. Plaintiff filed a complaint in the circuit court, pursuant to the Uniform Arbitration Act, to vacate or modify the award of the arbitrator. (Ill. Rev. Stat. 1987, ch. 10, par. 101 et seq.) Rockford filed its counterclaim to modify the award to include fees and costs it had incurred. The trial court affirmed the decision of the arbitrator. Plaintiff appeals his discharge and denial of fees and costs, and Rockford cross-appeals from the portion of the order affirming the arbitrator’s decision to deny its fees and costs.

It is undisputed that in 1985, plaintiff led a group of employees in the purchase of Rockford, thereby avoiding a sale by its parent corporation to unknown third parties who may have been hostile to the preservation of Rockford as a going business at its present location. In her decision, the arbitrator states, in part:

“When he became aware that Rexnard planned to sell Rockford Products, he organized other managers of Rockford Products to form an acquisition company to leverage an employee buyout. This was achieved in November 1985 and the Claimant was widely touted and praised as the man who saved Rockford Products for its employees and for the city of Rockford. The other managers agreed that the Claimant should be the Chairman of the Board of Directors, President, and Chief Executive Officer of the new company.
It is easy to understand that their gratitude to him would be manifested in this manner. He had led them in a venture which saved their jobs from being jeopardized by unknown new higher management and it was natural that he be selected to lead them in their new venture as owner-managers.”

In the process, plaintiff personally purchased 12,500 shares of common stock of Rockford for $250,000. On November 15, 1985, plaintiff and Rockford entered into a written agreement whereby plaintiff was employed for a five-year period (November 15, 1985 to November 15, 1990) as president, chief executive officer, and chairman of the board of directors.

The next annual meeting of shareholders was held on January 21, 1987. Plaintiff was reelected to the board of directors. At the board of directors meeting on the same day, plaintiff was reelected as chairman of the board of directors, president, and chief executive officer.

Approximately one month later, a meeting of the board of directors was held which resulted in the discharge of the plaintiff as president, chief executive officer, and chairman of the board of directors. Plaintiff did not attend and claims not to have had notice of the meeting. The minutes of the meeting of the board of directors of Rockford, held on February 26, 1987, reflect that notice was given to all directors and that the plaintiff was absent. A discussion followed regarding the advisability of terminating plaintiff’s employment. The minutes of the meeting state, in part:

“The directors then asked to review the appropriate section of Mr. Rauh’s employment agreement as to termination, the Secretary determining it to be Section 8.1, which states:
‘Company may also terminate this Agreement on 10 days’ notice for cause including, without limittion [sic], disloyalty to Company, dishonesty in the conduct by executive of his position hereunder, failure or refusal to perform any reasonable assignment properly given to him within the capacity in which he is employed hereunder, his violation of any agreement contained herein, or his performance of any act which is contrary to the customary standards of conduct observed by employees of comparable status.’
After further discussion, in which it was agreed that action should be taken promptly with reference to Mr. Rauh’s employment agreement and status, on motion made and seconded, the following resolutions were unanimously adopted:
RESOLVED, that John J. Rauh’s Employment Agreement with the Corporation dated November 15, 1985, and his employment as Chairman of the Board, President and Chief Executive Officer be terminated for cause on 10 days’ notice pursuant to Section 8.1 of said Agreement effective as of the beginning of business on Monday, March 9, 1987, and that Mr. Rauh be given written notice of such termination as promptly as possible on the date of this meeting; and
FURTHER RESOLVED, that effective immediately Mr. Rauh be removed from his posts as Chairman of the Board, President and Chief Executive Officer and all other positions related to his employment with the Corporation, and his authority to sign checks, drafts and other instruments in the name and on behalf of the Corporation be withdrawn and all banks with which the Corporation has accounts be promptly notified; and
FURTHER RESOLVED, that the Board of Directors, in its judgment, finds such action to be in the best interests of the Corporation.”

Thereafter plaintiff filed a timely demand for arbitration pursuant to the provisions of his employment agreement. This resulted in the arbitration proceeding and decision previously mentioned.

The arbitrator’s opinion does not conclude that the discharge of the plaintiff was proper under section 8.1 of the employment agreement. However, the arbitrator did conclude that plaintiff’s discharge was proper under section 8.0 of the agreement. Section 8.0 was not mentioned in the minutes of the February 26, 1987, board meeting, nor in the resolution adopted at that meeting. Section 8.0 provides:

“8.0 If Executive fails (for reasons other than disability, death, breach of this Agreement by Company, or other reason beyond his control) to perform any of his agreements herein provided and such failure continues for a period of 30 days after Company shall have notified him in writing of such failure, Company shall have the right to terminate this agreement by written notice to Executive.”

Plaintiff’s principal assignment of error is that the decision of the arbitrator must be revoked because it exceeded the scope of the arbitration.

I

An arbitration award may be vacated where the arbitrator exceeded her powers. (Ill. Rev. Stat. 1987, ch. 10, par. 112(a)(3).) An arbitrator exceeds her power when she decides matters which were not submitted by the parties for resolution. (Board, of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600 (1979), 74 Ill. 2d 412, 419, 386 N.E.2d 47.) Although this court may not substitute its interpretation of a contract for that of the arbitrator, it may inquire into the merits of the arbitrator’s interpretation only to determine if the arbitrator’s award drew its essence from the agreement so as to prevent a manifest disregard of the agreement between the parties. (74 Ill. 2d at 421.) “[I]f all fair and reasonable minds would agree that the construction of the contract made by the arbitrator was not possible under a fair interpretation of the contract, then the court would be bound to vacate or refuse to confirm the award.” (Pirsig, Some Comments on Arbitration Legislation and the Uniform Act (1957), 10 Vand L. Rev. 685, 706, cited with approval, Garver v. Ferguson (1979), 76 Ill. 2d 1, 9-10, 389 N.E.2d 1181.) “[G]ross errors of judgment in law or a gross mistake of fact will not serve to vitiate an award unless these mistakes or errors are apparent upon the face of the award.” 76 Ill. 2d at 10-11.

On January 21, 1987, the shareholders expressed their confidence in the plaintiff by reelecting him to serve as a director of Rockford. The directors’ meeting that immediately followed the action of the shareholders resulted in his reelection as president, chief executive officer, and chairman of the board.

Thirty-five days later, on February 26, 1987, the very same directors adopted a resolution “that [plaintiff’s] Employment Agreement with the Corporation dated November 15, 1985, and his employment as Chairman of the Board, President and Chief Executive Officer be terminated for cause * * * pursuant to Section 8.1 of said Agreement.” Apparently some “cause” unknown to them on January 21, 1987, became known to them so that “in the best interests of the Corporation,” on February 26, 1987, they resolved “that effectively immediately [plaintiff] be removed from his posts as Chairman of the Board, President and Chief Executive Officer and all other positions related to his employment with the Corporation.” To accomplish this purpose, they chose to rely upon section 8.1.

An examination of the record reveals that neither party submitted to the arbitrator any question regarding section 8.0 of the agreement. The only question raised was whether plaintiff was properly discharged for cause under section 8.1.

The arbitrator’s decision does not support plaintiff’s discharge under section 8.1, but upholds the discharge under section 8.0 even though it was not raised, briefed or argued by either side. We therefore conclude that the arbitrator exceeded her powers by deciding a matter that was not submitted by the parties for resolution.

Rockford contends that even if the arbitrator exceeded her powers, the error of deciding the termination of the plaintiff under section 8.0 rather than section 8.1 should be upheld. We disagree.

Even if section 8.0 had been submitted, her decision misconstrues that provision so seriously that it constitutes manifest disregard of the agreement. Fair and reasonable minds would not agree that the decision is a valid interpretation of section 8.0.

The arbitrator exceeded her power by concluding that Rockford could unilaterally discharge plaintiff without cause and without complying with its obligation to notify the plaintiff of his failure to perform and give him an opportunity to correct those failures within 30 days as required by section 8.0. The award is invalid for two independent reasons. First, neither party submitted any question regarding section 8.0, thus she lacked authority to decide it.

Second, even if she could interpret section 8.0, her decision is a gross disregard of the specific provisions of the agreement. The arbitrator admitted that the plain language of section 8.0 does not support her decision. Rather, she asserted that the parties must have intended to use different language and the words in section 8.0 “became tangled.” Nothing in the record refers to the parties’ intentions in drafting section 8.0. In fact, section 8.0 is not “tangled.” The procedure is rational and explicit. It allowed Rockford to give notice to the plaintiff of his failure to perform for reasons other than matters beyond his control. If plaintiff failed to correct his performance within 30 days after receiving notice, Rockford could terminate him upon further notice. Conversely, if in the 30-day period plaintiff corrected his failures, he could not be discharged. It is undisputed that Rockford never gave plaintiff an opportunity to correct his failures, if any.

The arbitrator’s mistakes of fact and errors in application of the law cannot be excused because they are apparent on the face of the award.

We therefore conclude that the decision and order of the arbitrator must be vacated and that the trial court erred in not doing so.

II

Rockford counterclaimed, asserting that the trial court erred in refusing to award it attorney fees and costs pursuant to section 8.2 of the agreement. Rockford contends that it prevailed on this issue because the arbitrator did not order that the plaintiff be reinstated or that he be compensated as he sought. We disagree.

Section 8.2 of the agreement provides that the prevailing party “in any arbitration or other proceeding over whether or not there *** existed cause sufficient to entitle [Rockford] to terminate [plaintiff’s] employment” shall recover costs and reasonable attorney fees. Section 8.2 does not provide for fees for the party that prevails on any issue in arbitration. Therefore, Rockford is not entitled to attorney fees since the arbitrator found that plaintiff was not discharged for cause, but rather was discharged for a matter beyond his control, namely, failure to provide leadership. See Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill. 2d 365, 373, 418 N.E.2d 744.

Accordingly, the judgment of the circuit court of Cook County is reversed and this cause is remanded for further arbitration proceedings consistent with the views expressed herein.

Reversed and remanded.

DiVITO, P.J., and SCARIANO, J, concur.


author: JUSTICE SCARIANO

text:
    VITA ARIZZI et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (2nd Division)
    No. 1-89-0679
    Opinion filed June 29, 1990.
    Jay E. DeGroot, of Lawrence W. Leek & Associates, Ltd., of Chicago, for appellants.
    Kelly R. Walsh, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiffs Vita Arizzi (Vita) and Patricia Arizzi (Patricia), her mother, filed a complaint against several defendants, including the City of Chicago (City), alleging that Vita was injured on a defective porch located on privately owned property which the City had previously declared a nuisance. The City invoked governmental immunity. Plaintiffs now appeal from an order of the circuit court dismissing their complaint against the City on the ground that the City had no actionable duty to abate the nuisance.

The issue on appeal is whether Vita, who was injured on private property, and Patricia may maintain a cause of action against the City for failing to abate a nuisance.

On January 21, 1976, the City filed a complaint against the owner of a building located at 1022 West 32nd Street, Chicago, alleging several violations of building safety regulations, including defective porches. As a result, on June 8, 1976, the circuit court issued an order directing the owner to board up and secure his building.

In the morning of September 8, 1976, Vita, who was eight years old at the time, was playing on the porch of the building with some other children, when she fell from the porch, fractured her leg and sustained other permanent injuries. On June 20, 1988, Vita and her mother, Patricia, filed a six-count complaint seeking damages from the beneficial owners of the property, the mortgagee, the resident taxpayers and the City. In count V, directed against the City, plaintiffs alleged that the City had engaged in willful and wanton misconduct and had acted in reckless disregard of Vita’s safety by breaching its affirmative duty to verify the owner’s compliance with the court’s order to render the building safe and secure and, if the owner had not complied, to secure and maintain the premises in a reasonably safe condition. In count VI, Patricia sought to recover damages from the City under the family expense act (Ill. Rev. Stat. 1989, ch. 40, par. 1015), but added no new material allegations.

The City filed a motion to dismiss the two counts against it based on the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.). The circuit court granted the motion and dismissed plaintiffs’ complaint against the City for failure to state a cause of action.

Plaintiffs advance the theory that the City may be held liable in tort for its failure to fulfill a duty imposed upon it by its own laws, arguing that the City of Chicago Municipal Code (Municipal Code) imposes upon the City certain “duties” concerning the maintenance of buildings and other premises:

“[§]39 — 11. The Commissioner of Inspectional Services *** shall have the power, and it shall be [his] *** duty, to order any building premises closed *** where it [has been] discovered that there is any violation of any of the provisions of this code enumerated in section 39 — 1 of this chapter which imperils life, safety or health, and to keep same closed, removed, or shut down until such provisions are complied with.” Chicago Municipal Code §39-1 (1976).
“[§]90 — 7. Any building *** perilous to life or property by reason of the construction of such building or structure or by reason of the condition *** is hereby declared to be a nuisance and the division marshal in charge of the Bureau of Fire Prevention is empowered and directed to cause any such nuisance to be abated.” Chicago Municipal Code §90 — 7 (1976).
“[§]99 — 1. It shall be the duty of the commissioner of buildings to serve notice, in writing, upon the owner *** of any lot, building, or premises in or upon which any nuisance may be found *** requiring him to abate the same in such manner as he shall prescribe, within a reasonable time. ***
It shall be the duty of the commissioner of buildings to proceed at once upon the expiration of the time specified in said notice to cause such nuisance to be abated.” Chicago Municipal Code §99-1 (1976).
“[§]99 — 2. Whenever any nuisance shall be found on any premises within the city, the commissioner of buildings is hereby authorized [in] his discretion to cause the same to be summarily abated in such manner as he may direct.” Chicago Municipal Code §99 — 2 (1976).
“[§]99 — 4. No building *** shall be made, used, kept, maintained, operated in the city if such use, keeping[,] maintaining, or operating shall be the occasion of any nuisance, or shall be dangerous to life or detrimental to health.
Every building or structure constructed or maintained in violation of the building provisions of this code *** in an unsafe or dangerous condition, or which in any manner endangers the health or safety of any person or persons, is hereby declared to be a public nuisance.” Chicago Municipal Code §99 — 4 (1976).

The foregoing provisions of the Municipal Code appear to impose an affirmative duty on the City to order the owner of any building which either violates the Code or endangers the health and safety of any person to remedy the violation after notice thereof. If the owner fails to do so within a reasonable length of time as specified in the notice, the City has an affirmative duty to abate the nuisance. A public nuisance includes any building which is either in violation of the building regulations of the Municipal Code or endangers human health or safety. The question arises, therefore, as to whether these statutory duties rise to the level of a duty sufficient to support a cause of action sounding in tort.

Plaintiffs’ complaint charged that the City (1) failed to inspect the subject premises to determine whether the owner had complied with the court order to board up and secure the building; (2) failed to inspect the building to determine whether it was a danger to human health and safety; (3) allowed the building to remain in a partially completed state for an unreasonable length of time; (4) failed to discover that no guard was posted on the premises; and (5) failed to “inspect and supervise” the premises. Plaintiffs further alleged that the City breached its duty to abate the nuisance, i.e., to board up and secure the building and to maintain the premises in a reasonably safe condition.

In response, the City’s motion to dismiss relied specifically on sections 2 — 103 and 2 — 105 of the Tort Immunity Act, which provide as follows:

“§2 — 103. A local public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” Ill. Rev. Stat. 1989, ch. 85, par. 2— 103.
“§2 — 105. A local public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its own, to determine whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.” Ill. Rev. Stat. 1989, ch. 85, par. 2 — 105.

We must first decide whether the City has a common law duty to protect Vita from injury caused by a dangerous condition existing in violation of the City’s ordinances, for if there is no duty, there is no tort and accordingly no basis to invoke immunity from liability. (See Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 268 N.E.2d 26; Lakeside Condominium “C” Association v. Frediani Developers, Inc. (1985), 135 Ill. App. 3d 972, 482 N.E.2d 665; Hannon v. Counihan (1977), 54 Ill. App. 3d 509, 369 N.E.2d 917.) Municipal ordinances designed to protect the public at large impose no corresponding duty at common law to protect individual members of the public, unless the plaintiff can show that the municipality owes him or her a special duty that is different from its duty to the general public. (Lakeside, 135 Ill. App. 3d 972, 482 N.E.2d 665; see generally 38 A.L.R. 4th 1194 (1985).) A special duty can arise in two instances: when the municipality acts in a private instead of a governmental capacity or when it develops a “relationship” with an individual. (Lakeside, 135 Ill. App. 3d at 973, 482 N.E.2d at 666.) This special relationship is created when the municipality becomes actually aware of the danger to a particular plaintiff before the injury complained of occurs. (Lakeside, 135 Ill. App. 3d 972, 482 N.E.2d 665.) In Lakeside, the plaintiff condominium association sued the village of Mount Prospect for its negligent failure to inspect a construction project and otherwise enforce its building code, causing a four-story condominium complex to be built with latent defects. The court found that the plaintiff had failed to properly plead the existence of such a relationship when it alleged merely constructive awareness — that the City “knew or should have known” of the defects causing the alleged injury. Lakeside, 135 Ill. App. 3d at 975, 482 N.E.2d at 667.

The provisions of the Municipal Code upon which plaintiffs in this case rely offer protection to the public at large from the dangers of unsafe and inadequately maintained private property; however, as stated in Lakeside, building codes, permits and inspections “ ‘are not meant to be an insurance policy by which the municipality guarantees that each building is built in compliance with the building codes and zoning codes.’ ” (135 Ill. App. 3d at 974, 482 N.E.2d at 666, quoting Ferentchak v. Village of Frankfort (1985), 105 Ill. 2d 474, 485, 475 N.E.2d 822, 827.) Although plaintiffs here alleged that the premises at issue were located in an area populated by families with children and that the City “knew or in the exercise of ordinary care should have known, that the condition of the premises and porch were attractive to children of Plaintiff’s age and experience, that children were likely to enter on the premises to play on and around the porch and premises, and that for some time prior to September 8, 1976, children were in the habit of entering the premises and playing on and around the porch and premises,” conspicuously missing from the complaint is any recitation of facts which would indicate that the City was actually aware of the danger posed by the defective porch to Vita.

In Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214, the victim’s family brought a wrongful death action against the town of Cicero for its willful and wanton failure to provide police protection to Jerome Huey, a black minor who was beaten to death by four white youths wielding baseball bats. The court held that the town did not have a common law duty to protect the decedent because, although the complaint alleged that the town knew of the presence of blacks in its territory and of the possibility of racial disorder, it did not allege “that defendants knew of the presence of decedent in the town, that he had requested police protection, or that he was in some peculiar danger.” (Huey, 41 Ill. 2d at 364, 243 N.E.2d at 216.) Similarly in the present case, although the complaint alleged that the City was aware of the danger posed by the vacant building because it had obtained a court order earlier in the same year to have the building boarded up and secured, it did not allege that the City actually knew of Vita’s presence on the premises or that she was in some peculiar danger. Accordingly, the City did not have a special duty toward Vita, and since the complaint failed to allege such a duty it also failed to state a cause of action.

The City properly relies on Stigler v. City of Chicago (1971), 48 Ill. 2d 20, 268 N.E.2d 26, which addressed facts very similar to those at bar. The plaintiff there was a one-year-old minor who was poisoned after ingesting chips of paint from the walls of a privately owned apartment. The complaint charged that the proximate cause of the injury was the negligent failure of the City to enforce provisions of its housing code relating to the maintenance of common stairways, exterior halls and living areas. Without reaching the issue of governmental immunity, the supreme court held that the complaint failed to state a cause of action against the City because the purpose of the housing code was to promote the safety and health of the general populace of the City and that its enforcement was a purely governmental, rather than a proprietary or ministerial, act. The court further found that the ordinance did not give rise to a special duty to the plaintiff different from its duty to the public at large. At the root of the duty analysis is a public policy consideration which the court expressed as follows:

“If the failure of the city to enforce this ordinance should render it liable for injuries sustained thereby, the tremendous exposure to liability would certainly dissuade the city from enacting ordinances designed for the protection and welfare of the general public, and thereby the general public would lose the benefit of salutary legislative enactments.” (Stigler, 48 Ill. 2d at 24-25, 268 N.E.2d at 29.)

The court concluded that in the absence of statutory liability, the proper defendant would be the party who actually violated the ordinance.

Stigler controls the disposition of the instant case, for both cases concern a member of the general public who suffered an injury on privately owned property proximately caused by a condition of the premises constituting a violation of certain provisions of the City’s Municipal Code enacted for the safety and welfare of the public at large. Plaintiffs stoutly disagree with this interpretation, however, insisting that a decisive difference exists between Stigler and the case at bar: Stigler and the cases following it do not apply because Stigler concerned the City’s failure to enforce its ordinance, whereas here the City violated its ordinance. Plaintiffs point to no authority drawing a meaningful difference between the terms. The term “failure] to enforce” originates in the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 2 — 103, 2 — 105); “violation” was a term the supreme court used in First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 373 N.E.2d 1326, wherein it held that the city had an actionable duty to maintain its public streets. Plaintiffs rely almost exclusively on that case in support of their position.

In First National Bank, plaintiff, who was injured in an automobile accident, charged that the City of Aurora negligently permitted “a large, dense evergreen tree” with “a line of dense bushes” to remain on municipal property within 20 feet of an intersection, thus creating a dangerous condition by obstructing the view of motorists, in violation of State law and city ordinances regulating public nuisances. (71 Ill. 2d at 5-7, 373 N.E.2d at 1328.) The supreme court held that by “violating” its own ordinances, the city became liable to the injured plaintiff in tort. The court further held that the existence of the city’s ordinances imposing a responsibility on the city to remove dangerous obstructions coupled with the fact the city violated those ordinances negated any immunity from liability under the Tort Immunity Act. Finally, the court went on to state that even if the obstruction would have been on private property, the city would have had a duty to remove the vegetation pursuant to an ordinance which provided that if the owner of property containing an obstruction fails to remove it after proper notice, it is the city’s duty “to summarily remove or take down the [obstruction] or cause the same to be removed or taken down” at the owner’s expense. 71 Ill. 2d at 10-11, 373 N.E.2d at 1330, citing Aurora, Ill., Municipal Code, ch. 42, §70.

First National Bank is not dispositive of this case for the following reasons. First, the property at issue there was public property, under direct city control. Here, Vita was injured on private property, whose proper maintenance in the first instance was the responsibility of its private owner. (See Stigler, 48 Ill. 2d at 25, 268 N.E.2d at 29.) Second, the court’s pronouncement with respect to nuisances on private property was not necessary to the disposition of the case. (See In re Marriage of Drews (1985), 139 Ill. App. 3d 763, 487 N.E.2d 1005 (defining obiter dictum), aff’d, (1986), 115 Ill. 2d 201, 503 N.E.2d 339, cert. denied (1987), 483 U.S. 1001, 97 L. Ed. 2d 729, 107 S. Ct. 3222.) Third, any references to Stigler are pointedly absent from the opinion, a strong indication that the court in First National Bank was not attempting to overrule Stigler’s holding.

Finally, it should be noted that plaintiffs’ reliance on certain language in First National Bank for the purpose of establishing duty is unwarranted. Quoting from Dini v. Naiditch (1960), 20 Ill. 2d 406, 417-18, 170 N.E.2d 881, 886, First National Bank held that “ ‘the violation of a statute or ordinance designed for the protection of human life or property is prima facie evidence of negligence, and that the party injured thereby has a cause of action, provided he comes within the purview of the particular ordinance or statute, and the injury has a direct and proximate connection with the violation.’ ” (First National Bank, 71 Ill. 2d at 9, 373 N.E.2d at 1330.) Clearly, when the court stated that the violation of an ordinance is “prima facie evidence of negligence” it was referring to the second prong of any tort analysis which asks “whether there was a breach.” We do not reach this issue in the present case, which comes to us in the pleadings stage, and the outcome of which thus depends solely on the existence of a duty, a pure question of law. Because plaintiffs’ complaint alleged neither a special relationship with the injured child nor municipal ownership of the property upon which the injury took place, we hold that plaintiffs fail to show that the City had a duty based on the Municipal Code giving rise to liability in tort and thus their complaint fails to state a cause of action. Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

HARTMAN and BILANDIC, JJ., concur.