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    JEFFREY A. FISHER, Plaintiff-Appellant, v. HARRY W. PARKS, Indiv. and d/b/a Southern Illinois Medical Business Associates, et al., DefendantsAppellees.
    Fifth District
    No. 5 — 91—0629
    Opinion filed August 3, 1993.
    Rehearing denied August 26, 1993.

      Ted Armstrong, of Edwardsville, and William James O’Herin, of Florissant, Missouri, for appellant.
    Freeark, Harvey, Mendillo, Dennis, Wuller & Buser, P.C., of Belleville (Ray H. Freeark, Jr., and Ransom P. Wuller, of counsel), for appellees.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

Jeffrey A. Fisher filed a complaint against Harry Parks and Steven Nuernberger, alleging that he had been a partner with the defendants in a medical pathology practice known as Southern Illinois Medical Business Associates (SIMBA) and that the defendants wrongfully expelled him from the partnership and failed to account for his financial interest in the business. The trial court, sitting without a jury, entered judgment for the defendants. Plaintiff appeals. We affirm.

The first issue on appeal is whether the trial court erred in finding that defendants complied with the procedural requirements of the partnership agreement. Specifically, Fisher argues that the notices of expulsion were not in accordance with the agreement and that he was wrongfully denied a 60-day probationary period. To resolve this issue, we must turn to the testimony adduced at trial.

In July of 1977, pathologists Steven Nuernberger and Harry Parks entered into a partnership agreement to provide clinical pathology services under the name of Southern Illinois Medical Business Associates. In July of 1978, Jeffrey Fisher, also a pathologist, joined the partnership. Throughout the term of the partnership, two of the partners in SIMBA would service several rural hospitals in Southern Illinois, including those at Sparta, Pinckneyville, Murphysboro, and Du-Quoin. SIMBA also serviced the hospital in Mt. Vernon and Alton Memorial Hospital in Alton. At each hospital SIMBA pathologists operated the hospital’s laboratory, supervised and trained hospital lab personnel, participated in the training of medical staff, and undertook any clinical pathology while on duty. The remaining partner would service and supervise SIMBA’s Collinsville-Belleville laboratory and was on call for the coroners or physicians in St. Clair and Madison Counties to perform autopsies. In addition, all of the partners were on call to do any autopsies which were required on Saturday and Sunday. The duties of the three partners were rotated.

Neither Parks nor Nuernberger had any criticism of Fisher’s performance during his first year with the partnership. The first complaint regarding Fisher came in September of 1979, from Mr. Nehrt, the administrator of the Sparta Community Hospital. Nehrt withheld a day’s pay from SIMBA amounting to $250, for Fisher’s failure to attend certain meetings. Parks testified that he believed SIMBA could forfeit its contract with Sparta Community Hospital if these actions continued. Parks testified that during this same period he was given the impression from others that Fisher had begun a practice of jogging during office hours when he should have been attending to matters at the laboratory or servicing client hospitals. Parks testified that this practice continued from the fall of 1979 until Fisher’s departure from SIMBA in 1981.

Mary Cruzvergara, Ruth Joachimsthaler, and Arna Trotter, employees of SIMBA, testified that because of Fisher’s jogging there were times when he could not be reached either at a particular hospital or at the laboratory. They testified that although the laboratory hours were 8 a.m. to 5 p.m., Fisher usually spent six hours at the laboratory, which included the 45 minutes to an hour and a half he spent jogging. Cruzvergara and Trotter both testified that Fisher’s jogging during working hours and keeping minimal hours never changed. Cruzvergara testified that once Fisher got lost while jogging in Collinsville and someone from the laboratory had to retrieve him. She recalled that in early 1989 Fisher told her that he did not feel pathology was for him and that he would be happier practicing holistic or nutritional medicine in New York.

There was also testimony that Fisher jogged while he was on duty at client hospitals. Nancy Powles, a medical technologist at St. Joseph’s Hospital in Murphysboro, testified that Fisher went out jogging more than half the times that he visited the hospital and that he would do this shortly after he arrived. On a number of occasions Powles had to tell physicians that Fisher was unavailable because he was out jogging. Jo Ellen Heggemeier, a medical technologist at Sparta Community Hospital, testified that Fisher went jogging nearly every time that he visited the hospital. Due to his jogging, he was unavailable for meetings and was not as available to her or the laboratory staff as Parks and Nuernberger were. She also testified that while Nuernberger’s, Parks’, and Fisher’s hospital visits averaged two hours, Fisher’s two hours included the time he spent jogging.

David Hosier, chief executive officer of Marshall Browing Hospital in DuQuoin, testified that, during the time SIMBA has provided services to the hospital, he has been critical of only one pathologist, Jeffrey Fisher. Hosier testified that Fisher would spend minimal time at the hospital and was not fulfilling the obligations for which the hospital had contracted with SIMBA. This matter, along with other problems, caused Hosier to rewrite the contract with SIMBA to specify more clearly the length of time a physician was required to spend at the hospital.

Ruth Lafferty, a pathology secretary at Alton Memorial Hospital, testified that Fisher serviced Alton Memorial Hospital on numerous occasions and that he would go jogging nearly every day. Lafferty testified that on one occasion Fisher could not be reached to perform a frozen section because he was out jogging.

SIMBA was also responsible for performing autopsies in St. Clair and Madison Counties. Alva Busch, a crime-scene technician for the State of Illinois, testified that in November of 1979 Fisher performed an autopsy of a man who was shot through the head. Busch testified that he feels it is difficult for a pathologist “not knowing the circumstances of the other facts of the case to be able to sit and make a total evaluation of what occurred to a body at a given time without knowing the surrounding facts of the case.” Busch cited an incident where Fisher did not wait for Busch to present evidence of the crime-scene investigation but rendered his report without that information. As a result, Fisher’s autopsy report was in error because he showed the entry and exit wounds in reverse. Busch testified that he believed some of Fisher’s “priorities were a bit out of line.”

Madison County Assistant Coroner Dick Mizell testified that Fisher was always in a hurry to do things and that he always talked of jogging. Mizell recounted an occasion where he wanted to have a body re-x-rayed, but that Fisher did not want to wait the half hour it would have taken to re-x-ray the body. Mizell spoke with the coroner about problems he had with Fisher. Mizell testified that he preferred not having Fisher perform autopsies.

Dr. Nuernberger wrote Fisher and Parks a letter dated March 27, 1980, outlining particular complaints he had regarding the partnership and the activities of his partners. With regard to Parks, Nuernberger complained of Parks’ failure to complete autopsy reports in a timely manner. Parks agreed that he had been late in completing the reports, but he testified that he corrected the problem after receiving Nuernberger’s letter.

In the letter of March 27, particular references regarding Dr. Fisher were set forth:

“I have been approached by the nursing coordinator at St. Joseph’s Hospital in Murphysboro with a complaint concerning Dr. Fisher and the clinical pathological conferences which he has or has not given depending on whom you talked to. The nurse has stated that he has been late to both of his conferences number 1, and number 2, instead of finishing the first conference *** he did a frozen section and went jogging instead of returning to finish the conference. This I feel is quite deplorable and shows an extreme lack of consideration to the fellow physicians who are giving their time and effort to be at the conference. I see no reason for any of us to be late to a CPC since it is scheduled as much as three months in advance. ** *
* * *
Once again, it appears to myself and to the employees of SIMBA that Dr. Fisher is spending more time in personal life than he is concerned about the business. I do not like him leaving surgical specimens in baskets, buckets or whatever for me to do on the next day. It is easy enough to open a colon and to take biopsies and leave them in cassettes in formalin over night rather than leave the entire specimen for someone else to do. If he is in such a rush, that he cannot do the specimens, I think he had better look for a new job.
Despite these complaints and the seriousness I attribute to them, I have enjoyed for the most part our relationship over the past year. I just do not want the quality of service rendered by SIMBA to its customers and physicians to deteriorate from the standards set in 1977 when I arrived at SIMBA. ***
* * *
*** I write this letter with the hope that we can improve our service and resolve our differences in a manner which would preclude my leaving SIMBA.”

In an undated letter addressed to Nuernberger, Fisher denied any alleged deficiencies in his own performance.

In April of 1980, SIMBA received a letter from Dr. Thomas, a pathologist and director of laboratories at Memorial Hospital in Carbon-dale. Thomas described an oversight on the part of Dr. Fisher, wherein Fisher failed to send tissue from a malignant adenocarcinoma to the clinical laboratories in St. Louis for estrogen and progesterone receptor assays. In addition to detailing this incident, Thomas noted that Fisher gave the personnel in the histology laboratory and the pathology office the impression that he was terribly rushed and really did not have time to deal with the load of work confronting him.

Admitted into evidence was a list of SIMBA’s Sunday autopsy schedule from January 1980 through June of 1981, reconstructed from reports of the coroner’s physician on file at SIMBA. According to the schedule, there were six occasions where Fisher was on call to perform autopsies but could not be located. In each instance Parks or Nuernberger was called to perform the autopsy. It is not documented whether Nuernberger or Parks was ever unavailable when he was otherwise scheduled to perform autopsies. Documented in the schedule are three incidents Fisher was allegedly involved in in 1980:

May 1, 1980 — Patient autopsied and signed out as death due to natural causes, i.e., lobar pneumonia. Medical record indicated patient strangled in bedside rail and ceased breathing. CPR given but patient remained comatose until her death three weeks later. Corrected report dictated by Dr. Fisher six weeks after autopsy.
May 13, 1980 — Numerous inaccuracies in Dr. Fisher’s report brought out in letter to Coroner Dallas Burke from parents of decedent and corrected addendum report requested. No corrected addendum report found in SIMBA files.
September 26, 1980 — Dr. Fisher’s autopsy report erroneously attributes multiple skull fractures and rib fractures to homicide when reliable witnesses at the scene indicated he had been run over by a semi-trailer truck after jumping/falling into the traffic lane on I-270, while intoxicated. Dr. Steven P. Nuernberger was asked to render a second opinion correcting the erroneous interpretation of Dr. Fisher.

Nuernberger testified that, as a result of Fisher’s continued inability and disinterest in performing, he and Parks decided to expel Fisher from the partnership. Nuernberger and Parks testified that they held an informal meeting on November 5, 1980, to discuss Fisher’s deficiencies. Fisher was not advised of the meeting. As a result of their meeting, Nuernberger and Parks sent Fisher a letter by certified mail, dated November 5, 1980, which provided as follows:

“This is to give Dr. Fisher a 60 day written notice of expulsion according to the contract signed by Dr. Fisher, Dr. Nuernberger, and Dr. Parks (Section XIII, paragraph A, ‘ground’ number 5).
It is felt by the remaining partners that Dr. Fisher has continuously failed to fulfill his obligations and duties as a partner as stated in Section IV, paragraph A. He has purposely and repeatedly failed to cover SIMBA Laboratory when assigned ‘CB’ on the schedule, he has caused SIMBA to be fined by an Administrator, thus tarnishing the excellent reputation SIMBA enjoys, he has refused to perform autopsies in a prompt and timely manner, thus straining SIMBA’s relationship to the various coroners served, and he has repeatedly set a bad example for SIMBA employees by his repeated tardiness to work and early exits from the laboratory. Thus, his overall attitude is incompatible with the values vital to the well-being of SIMBA Laboratory and this partnership.
We, the remaining partners, therefore, are giving Dr. Fisher the sixty day (60) written notice of expulsion required by our contract with him.”

On November 7, 1980, the three partners met to discuss the notice of expulsion. Notes of the meeting, admitted into evidence, demonstrate that Fisher denied most of the allegations against him and questioned the sources of information relied upon by Parks and Nuernberger.

Nuernberger and Parks testified that Fisher’s conduct did not change during the ensuing months. Parks testified that on Sunday, November 16, 1980, Fisher was on call to perform two autopsies but could not be located. Parks was called to perform the autopsies on Monday, November 17. Parks also testified that on November 18, 1980, a tissue sample from a patient at Marshall Browning Hospital was lost. The hospital felt that Fisher was directly responsible as the tissue sample was under his care at the time it was lost. In a letter dated January 29, 1981, from David Hosler, the administrator of Marshall Browing Hospital, to Dr. Parks, Hosler stated:

“[A] tissue was lost that required a second operation for the patient involved. This incident caused everyone involved a great deal of discomfort and could have involved all of us in litigation. We feel Dr. Fisher was directly responsible for this problem, as he was in charge at your lab when the incident occurred.”

On January 6, 1981, Parks and Nuernberger hand-delivered a letter to Fisher which provided:

“In accordance with our partnership agreement following a 60 day probation period after written notice of expulsion we are giving our notice in writing of our final decision in regard to previous notice of expulsion and will expect that your partnership will terminate Friday, March 6, 1981.”

Plaintiff argues on appeal that the procedural requirements for partner expulsion were not complied with. The partnership agreement provides in pertinent part:

“This agreement is entered into on the 1st day of July 1978, by and between Harry W. Parks, M.D. Steven P. Nuernberger, M.D. and Jeffrey A. Fisher, M.D. *** and [they] agree to operate this partnership pursuant to the Uniform Partnership Act of the State of Illinois on the following terms and conditions:
* * *
III. Duration of Partnership
The partnership shall commence operation on July 15, 1978 and shall continue until dissolved pursuant to the provisions of Article XIV of this agreement.
* * *
VI. Rights, Duties, and Liabilities of Partners
A. Each of the partners shall devote his full time and efforts to the business of the partnership and none of the partners shall practice medicine or pathology in any name other than that of the partnership. Each partner will work to maintain a harmonious relationship with all patients, clients, laboratory staff and all medical staffs in client institutions.
* * *
C. Vacations and leaves of absence. Each partner shall be entitled to be absent on vacation without loss of compensation *** and such vacation shall be at such time, and for such length of time as may be mutually agreed upon and as may be convenient and feasible in carrying on said practice ***.
* * *
VII. Management of Business
A. Participation in management. All of the partners shall have equal rights in the management of the affairs and business of the partnership. The decision by a majority in number of the partners shall be required as to the partnership affairs and business (unless a greater number is required pursuant to specific paragraphs of this agreement) and once obtained shall be binding on all partners.
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E. Meetings of Partners. Without call or notice, the partners shall hold quarterly meetings at times [and] places to be selected by the partners. In addition special meetings may be called by any partner after giving two (2) days notice to all partners.
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XIII. Expulsion of a Partner
A. Grounds for Expulsion. Any individual partner or partner in a partnership who is a party to this agreement ] may be expelled from membership in this partnership or his partnership as herein provided. Each partner shall have one vote.
The grounds for expulsion shall be as follows:
(1) Failure of a partner to make when due any contribution required to be made under the terms of this agreement, when such failure is continued to sixty (60) days after written notice of the failure to make contribution.
(2) Adjudication of the partner to be insane or incompetent.
(3) Disability of an individual partner to the extent that he is unable to fulfill his obligation to the partnership as specified in this Agreement in Article XII.
(4) The making of an assignment for the benefit of creditors ***
(5) The failure of the partner to fulfill any other obligations, including the management obligations, as specified in this agreement when such failure is continued for a period of 60 days after written notice thereof.
(6) Conviction of a crime involving moral turpitude, homicide, [or] felonious theft ***.
(7) Loss of a license necessary to perform the work contemplated under this agreement.
B. Notice. Upon the occurrence of any event listed in section A of [this] Article, the defaulting partner may be expelled from membership in the partnership by a majority vote, said votes to be apportioned as provided in this Article. The defaulting party shall receive sixty (60) days notice of expulsion, such notice setting forth the grounds for expulsion and being delivered, in writing, by registered or certified mail. Any tie vote shall be referred to arbitration.”

We note that the partnership agreement expressly provides that it is governed by the Illinois Uniform Partnership Act (Act) (805 ILCS 205/1 et seq. (West 1992)). Section 31(l)(d) of the Act provides that dissolution of the partnership is caused “[w]ithout violation of the agreement between the partners *** [b]y the expulsion of any partner from the business bona fide in accordance with such a power conferred by the agreement between the partners.” (Emphasis added.) (805 ILCS 205/31(l)(d) (West 1992).) Thus, a partnership is controlled by the terms of the agreement under which it is formed. (In re Estate of Johnson (1984), 129 Ill. App. 3d 22, 472 N.E.2d 72.) Because a partnership is a contractual relationship, the principles of contract law fully apply to it. (Allen v. Amber Manor Apartments Partnership (1981), 95 Ill. App. 3d 541, 549, 420 N.E.2d 440, 446.) A contract’s meaning is determined from the words or language used, and a court cannot place a construction on a contract which is contrary to the plain and obvious meaning of the language. Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287, 458 N.E.2d 480, 481; Gordon v. Bauer (1988), 177 Ill. App. 3d 1073, 1088, 532 N.E.2d 855, 864.

According to the partnership agreement, in order to expel Fisher the other partners had to first provide Fisher with written notice of Fisher’s failure to fulfill obligations. (See article XIII, section (A)(5), of the partnership agreement.) Because we agree that the November 5, 1980, letter fulfilled the notice provision, we decline to address plaintiff’s contention that the March 27, 1980, letter was insufficient notice under the partnership agreement.

Sections (A) and (B) of article XIII each contain a notice provision. The initial notice described in article XIII, section (A)(5), is a threshold requirement for commencing the expulsion procedures. This notice must be in writing and advise the subject partner of his failures. It commences a 60-day period wherein the partner may attempt to cure his deficiencies. The second notice, that described in article XIII, section (B), which is also required to be in writing, advises the subject partner what the grounds for expulsion are. This expulsion notice must be given 60 days prior to the date of expulsion. Expulsion can only be by majority vote after a finding that the occurrence of the event listed in the initial notice has occurred.

Plaintiff contends that the November 5, 1980, notice of expulsion was not issued in compliance with the partnership agreement because it was never discussed at a meeting of all the partners, it was never the subject of a partnership vote, and it did not provide for a 60-day probationary period. As to the charge that the expulsion notice was never discussed prior to issuance, plaintiff charges that Parks and Nuernberger met secretly on November 5, unlawfully depriving plaintiff of his right to respond to allegations of his deficient performance. In support of his argument, plaintiff cites article VII, section (E), of the partnership agreement for the provision that the partners must be given two days’ written notice of special meetings:

“Without call or notice, the partners shall hold quarterly meetings at times [and] places to be selected by the partners. In addition special meetings may be called by any partner after giving two (2) days notice to all partners.” (Article VII, section (E), of the partnership agreement.)

Defendants argue that there is no provision in the contract for a meeting to discuss the preparation of written notice of partnership failure or for the issuance of a notice of expulsion. We agree.

A court should construe a contract in accordance with its plain and ordinary meaning. (Johnstowne, 99 Ill. 2d at 287, 458 N.E.2d at 481.) The special-meetings provision of the contract is found in article VII, which is entitled “Management of Business.” Article VII, section (E), provides that quarterly meetings shall be held, and that special meetings may be called by any partner. There is no mandate that special meetings must be called. “May be called by any partner” indicates that a special meeting is subject to the partners’ discretion. (See In re Muro (1980), 81 Ill. App. 3d 21, 23, 400 N.E.2d 1042, 1044.) More specifically, the partnership agreement does not specify in article XIII, entitled “Expulsion of a Partner,” that a special meeting must be called to discuss the preparation of a notice of a partner’s deficiencies or of an initial notice of expulsion.

Plaintiff also maintains that a vote of all partners was required before a notice under article XIII, section (A)(5), could be issued. The partnership agreement does not specify that the notice described in article XIII, section (A)(5), is subject to a vote or that it need be prepared or served with the same formality as an expulsion notice. Although a vote of all partners was not required, Nuernberger and Parks testified that they voted to send Fisher the notice.

As for plaintiff’s contention that the notice did not advise him of a 60-day probationary period, once again we look to the plain and ordinary meaning of the contract. The partnership agreement specifies that a partner may be expelled when his failure to fulfill obligations “is continued for a period of 60 days after written notice thereof.” Article XIII, section (A)(5), does not mandate that the notice advise him of a 60-day probationary period. The 60-day notice of expulsion provision is found at article XIII, section (B). Plaintiff does not dispute that he is familiar with the partnership agreement and that he received the November 5, 1980, letter advising him of alleged deficiencies in his performance. We cannot find that the trial court erred in finding that the November 5 letter was satisfactory notice under the contract.

Plaintiff also alleges that the letter of January 6, 1981, was not in compliance with the partnership agreement. Plaintiff argues that he received no notice of a meeting to discuss issuance of the January 6 letter, that there was no notice of a vote, and that, in fact, no partnership vote was taken.

It is undisputed that the January 6, 1981, letter falls under article XIII, section (B), of the contract, which requires the defaulting partner to be expelled by a majority of the partners, with each partner having one vote. The notice of expulsion must be delivered, in writing, by registered or certified mail; set forth the grounds for expulsion; and give the subject partner 60 days’ notice of the date of expulsion. It is clear that the contract’s expulsion provision does not require that a meeting be held or even that a formal partnership vote be taken. A vote of the majority of the partnership members is required to expel. The evidence demonstrates that Parks and Nuemberger voted to expel Fisher; thus, the voting requirement was satisfied.

Plaintiff’s final attack on the January 6, 1981, notice is that it failed to set forth the grounds for expulsion. The January 6 letter provided in part: “we are giving our notice in writing of our final decision in regard to previous notice of expulsion.” (Emphasis added.) Although the notice does not expressly enumerate the grounds as set forth in the November 5 notice, the November 5 notice is specifically referred to and incorporated therein. We find that just as a contract may incorporate all or part of another document by reference (Arneson v. Board of Trustees (1991), 210 Ill. App. 3d 844, 849, 569 N.E.2d 252, 256), the January 6 letter incorporated the letter of November 5 by reference. We conclude that the trial court’s determination that the letter of January 6, 1981, was sufficient notice under the partnership agreement was not against the manifest weight of the evidence.

The second issue on appeal is whether the trial court erred in finding that Fisher failed to meet his obligations under the partnership agreement. Plaintiff argues that he did not fail any management obligations during the probationary period from November 5, 1980, through January 6, 1981. Plaintiff contends there were only two purported failures which could remotely be identified as having occurred during the probationary period: the lost-specimen incident of November 17, 1980, and the failure to perform a Sunday autopsy on November 18, 1980. Plaintiff contends that these two incidents are inapplicable to establishing his failure to meet management obligations cited in the November 5, 1980, notice. On the contrary, it is evident that the two alleged incidents occurred during the probationary period and are directly related to Fisher’s failure to fulfill his obligations and duties as a partner under the terms of the partnership agreement. In addition, the notice of November 5, 1980, specifically referred to Fisher’s failure to perform autopsies in a prompt and timely manner and his failure to fulfill his obligations and duties as a partner in general. Once again we turn to the testimony rendered at trial.

Nuernberger and Parks testified that after November 5, 1980, Fisher did not give them any reason to believe he intended to change his unsatisfactory behavior. Fisher continued to jog while at the SIMBA laboratory after November 5, 1980, pursuant to testimony by Mary Cruzvergara and Arna Trotter. Ruth Lafferty, a pathology secretary for Alton Memorial Hospital, testified that Fisher jogged nearly every time he came to the hospital and that his disinterested attitude in his work never changed. Nancy Powles, a medical technologist at St. Joseph’s Hospital, also testified that Fisher jogged more than half the time that he visited St. Joseph’s Hospital and that his habit of jogging there never changed. Jo Ellen Heggemeier, a medical technologist at Sparta Community Hospital, also testified that Fisher jogged when he was supposed to be on duty at the hospital and that this habit did not change. All of these witnesses testified that Fisher’s habit of jogging interfered with his work. In addition, Cruzvergara and Trotter testified that Fisher’s habit of keeping minimal hours at the SIMBA laboratory never changed.

Jeffrey Fisher testified he never did anything contrary to the terms of the partnership agreement and that he had an explanation for each instance in which he was accused of not doing an autopsy promptly or otherwise fulfilling his duties. He testified that he never compromised his professional duties in order to jog and that he normally took 45 minutes during his lunch hour to jog. Fisher testified that if witnesses testified that he did not regularly spend seven to eight hours a day at SIMBA laboratory, they were mistaken.

Where a case is heard by a court sitting without a jury, unless the trial court’s findings are against the manifest weight of the evidence or there is some other palpable error, the findings will not be disturbed on appeal. The trial court is in a better position than is a court of review to decide what weight should be given the testimony. (Brown v. Commercial National Bank (1969), 42 Ill. 2d 365, 371, 247 N.E.2d 894, 897; Pasulka v. Koob (1988), 170 Ill. App. 3d 191, 524 N.E.2d 1227.) Based on the record, we conclude that the trial court’s determination that Fisher failed his management obligations during the period from November 5, 1980, through January 6, 1981, is not against the manifest weight of the evidence.

The final issue for our consideration is whether the court erred in awarding the plaintiff $276.15 as his interest in the partnership. Plaintiff contends that under the terms of the partnership agreement he is entitled to $343,357. The pertinent provisions of the partnership agreement are as follows:

“IV. CAPITAL CONTRIBUTIONS AND FIDUCIARY INTEREST OF EACH PARTNER
The capital of the partnership as of this date consists of a value of $80,329.83. In the prior partnership agreement, Nuemberger agreed to pay Parks the amount of $30,043.20 under a formula determined in paragraph IV of said prior partnership agreement and this amount was to be paid in twenty-four (24) equal monthly installments of l/24th of the total. This obligation of Nuemberger to Parks is renewed. Fisher agrees to pay Nuemberger and Parks the sum of $26,776.61 to acquire a one-third (⅓) interest in SIMBA and payments [sic].
* * *
IX. ACCOUNTING MATTERS
A. Books of Account. Books of account shall be kept by the partners, and proper entries made therein of all the sales, purchases, receipts, payments, engagements, transactions, and property of the partnership.
B. Method of Accounting. All accounts of the partnership shall be kept on the cash basis. All matters of accounting for which there is no provision in this agreement are to be governed by generally accepted methods of accounting.
* * *
E. Capital accounts. A capital account shall be maintained on the partnership books on behalf of each partner. Such account shall be credited with that partner’s contributions to the capital of the partnership and shall be debited and credited in the manner prescribed in subsection (f) of this article.
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XI. DEATH, INCOMPETENCY, DISSOLUTION, ETC. OF A PARTNER
A. The death, adjudication in bankruptcy, retirement, insanity, incompetency, dissolution, withdrawal or expulsion of a partner shall not terminate the partnership.
B. In the event of any occurrence as stated in (A) of an individual partner, the remaining partners shall immediately be vested with the deceased *** or expelled partner’s interest, subject however to the payment to the *** partner, of his share or interest in the partnership as and in the manner hereinafter set forth. *** [A] current statement of the partnership’s net asset value shall be made by the partnership’s account and the retired, withdrawing or expelled partner *** shall be paid as provided in this agreement[:]
(1) For a deceased, retired, insane or incompetent or disabled partner, the greater of:
(a) The partner’s capital account as of the end of the prior fiscal year preceding the event involved herein, plus the partner’s share of receivables x 85% or the average of the net income (after salaries and expenses and before profit or additional income withdrawals) of the highest three year [sic] of the previous five years [or] if the partnership has not been in operation for five years the average of the years of operation, capitalized by a multiple of four (4) times said partner’s percentage interest in the partnership.
(b) In addition to the amount determined in A 1 (a) the partner or the person so entitled shall also receive his shares in the profits of the partnership, if any, to the date of the event herein involved.
(c) The sum as determined in A 1 (a) and (b) shall be decreased by the partner’s share of the partnership losses, if any, computed from the beginning of the partnership’s taxable year in which the event herein involved took place to the last day of the month preceding such event and shall be decreased or adjusted for any and all contributions and withdrawals made by that partner and for any debts owed to the partnership.
* * *
(2) For a bankrupt or expelled partner, his interest shall be paid in like manner as provided in this Article except that he or the trustee in bankruptcy, as the case may be, shall receive an amount equal to the capital account of the bankrupt or expelled partner adjusted to the end of the nearest month prior to the event herein involved as adjusted as provided in A(l)(b) and (c).”

What is significant about these provisions of article XI is that section (B)(2) refers to sections “A(l)(b) and (c),” which are nonexistent. This problem is further compounded if we assume that the reference in section (B)(2) was intended as “B(l)(b) and (c),” because, any intent to limit section (B)(2) to sections (B)(1)(b) and (c) is thwarted where section (B)(l)(b) refers specifically to “A(l)(a),” which is also nonexistent.

Defendants’ accountant, Earl Swink, testified that in calculating the amount due Jeffrey Fisher, he based his findings on the assumption that the reference in section (B)(2) to “A(l)(b) and (c)” refers to sections (B)(l)(b) and (c). Swink further testified that in the case of an expelled partner, as we have here, adjustments as set forth in section (B)(1)(a) are not to be considered in determining amounts due the expelled partner, as it is obvious from the agreement that expelled partners are to be treated differently from those who are deceased, retired, insane, incompetent, or disabled. Swink testified that, applying the formula set forth in section (B)(1)(b) and (c), Fisher is entitled to $276.15.

Michael Hagenhoff, Fisher’s accountant, testified that one cannot ignore the application of section (B)(1)(a) if sections (B)(1)(b) and (c) are utilized. He testified that if one calculates Fisher’s interest in the partnership by assuming that section (B)(1)(a) applies, Fisher’s interest in the partnership is valued at $343,357. The parties dispute which of the two methods of calculation is appropriate under the partnership agreement.

It is well settled that a party asserting a fact or issue generally has the burden of proof as to such fact or issue. (In re Marriage of Douglas (1990), 195 Ill. App. 3d 1053, 1060, 552 N.E.2d 1346, 1351.) Plaintiff, as the party claiming an interest under the partnership agreement, had the burden of going forward with evidence to support his construction of the agreement. The term “burden of proof” includes both the burden of producing evidence and the burden of persuading the trier of fact. (People v. Ziltz (1983), 98 Ill. 2d 38, 43, 455 N.E.2d 70, 72.) There is no question that the partnership provisions concerning the capital contributions and fiduciary interests of the partners are unclear. Plaintiff produced no testimony as to what the parties intended when they entered into the partnership agreement. Michael Hagenhoff testified extensively as to calculations using sections (B)(l)(a), (b), and (c); however, he did not offer proof as to why this formula was more appropriate than the formula adopted by defendants’ accountant, Earl Swink.

Earl Swink testified that in previous years he has prepared, or assisted in preparing, many of the partnership’s income tax returns and has assisted SIMBA in general tax matters. He testified that in January of 1981 he met with Parks, Nuernberger, and SIMBA’s attorney to determine the financial obligations between the partners. Swink testified that it was agreed that under the expulsion clause of the partnership agreement Fisher was entitled to his capital account, $6,908, plus or minus any amounts otherwise owing to him or to the partnership.

It is a fundamental principle of contract construction that where an agreement is indefinite, the courts will look to and adopt the interpretation which the parties themselves have placed on it. (Pocius v. Halvorsen (1963), 30 Ill. 2d 73, 81, 195 N.E.2d 137, 141; Burgener v. Gain (1981), 101 Ill. App. 3d 699, 704, 428 N.E.2d 722, 727.) In this case, the parties’ interpretation of the contract provisions regarding capital contributions and fiduciary interests came from Hagenhoff and Swink. For the most part, the witnesses’ opinions as to the interpretation of the contract were couched in terms of their own personal beliefs. Swink, however, testified that he had handled SIMBA’s accounting matters for years and that it was the opinion of Parks and Nuernberger that the expulsion provision of the contract governed, excluding section (B)(1)(a) from the calculation of Fisher’s entitlement. Contrary to plaintiff’s conclusion, a review of the testimony at trial supports the trial court’s finding that the intent of the parties was to apply the contract’s sections (B)(1)(b) and (c) and not section (B)(1)(a) in determining the amount due Fisher.

Fisher also argues that Swink’s calculations are erroneous because they assume the partnership tax return’s description of the capital account supplants the actual value as determined in the partnership agreement. Fisher further argues that Swink erroneously deducted interpartner obligations in his calculations, thus reducing Fisher’s capital account. Defendants maintain that to adopt Fisher’s arguments one has to ignore the definitions of capital account and earnings of income as they appear in the partnership agreement. Defendants also maintain that Fisher refuses to consider the difference created by the partnership agreement for expelled partners and nonexpelled partners. Having reviewed the testimony of the witnesses, and the exhibits to which they refer, we cannot find that the trial court erred in finding that Swink’s calculations were proper.

The judgment of the circuit court of Madison County is, therefore, affirmed.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MAAG

license: Public Domain

text:
      In re MARRIAGE OF CONNIE DILE, f/k/a Connie Lundak, Petitioner, and FRANK LUNDAK, Respondent-Appellee (Daniel J. Krietemeyer et al., Intervenors-Appellants).
    Fifth District
    No. 5 — 92—0331
    Opinion filed August 2, 1993.
    James M. Drazen, of Troy, for appellants.
    Margaret J. Walsh, of Wimmer, Stiehl & Montalvo, P.C., of Belleville, for appellee.
   JUSTICE MAAG

delivered the opinion of the court:

On February 27, 1992, the circuit court of Madison County disnissed a petition for custody brought by intervenors, Daniel J. Krietemeyer and Juliann R. Krietemeyer, the maternal grandparents of AnIrea Lundak. The circuit court dismissed the Krietemeyer petition for justody under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 101 et seq.). The only question before us is whether the circuit court erred in lismissing for lack of standing the Krietemeyers’ petition for custody.

In January 1982, the circuit court entered a judgment of dissolution of marriage between Connie Lundak and Frank Lundak. Subsequently, Connie was awarded custody of the only child of the parties, Andrea Lundak. Frank was ordered to pay child support and was awarded visitation, but no set schedule for visitation was provided.

Subsequent to the divorce, Connie and Andrea lived with Connie’s parents, the interveners, Daniel J. and Juliann R. Krietemeyer, until 1983. In 1987, Connie remarried, and Andrea resided with Connie and her second husband. Andrea attended Edwardsville schools.

Frank maintained contact with Andrea after the divorce even after he moved to Chicago in January 1987 and subsequently to Georgia in November 1987. Frank’s moves were necessitated due to job transfers. At times Connie resisted Frank’s visitation with Andrea. Frank paid child support for Andrea, although at one point he became behind in this obligation during a period when he was unemployed.

On December 3, 1991, Connie threatened Andrea with a gun, then committed suicide. The Krietemeyers took Andrea to their home in Collinsville, enrolled her in Collinsville High School, and scheduled counseling for the child. Immediately after Connie’s death, Frank came to Illinois to take Andrea back to his home in Georgia. The Krietemeyers refused to relinquish Andrea. It is undisputed by the parties that Frank left Andrea with the Krietemeyers because of the trauma the child had suffered as a result of Connie’s suicide.

On July 5, 1991, the Krietemeyers filed their petition for custody, alleging that subsequent to Connie’s death “the minor child has resided almost exclusively with the interveners.” In their petition, they also allege that Andrea’s best interests necessitate that she be placed with the Krietemeyers.

On December 10, 1991, Frank filed a motion to dismiss the Krietemeyers’ petition for custody, premised upon the Krietemeyers’ alleged lack of standing to seek custody of Andrea. A hearing was held on January 27, 1992, solely on the issue of standing. At said hearing, Juliann Krietemeyer testified that Frank had consistently made it known since Connie’s death that he wanted custody of Andrea. Mrs. Krietemeyer further testified that she never believed that Frank would voluntarily give up his right to Andrea’s legal custody. Mrs. Krietemeyer admitted that Frank left Andrea with the Krietemeyers only because of the trauma of Connie’s death.

On February 27, 1992, the trial court entered an order finding that the Krietemeyers did not have standing to bring their petition, and the court granted Frank’s motion to dismiss. Frank filed a petition for writ of habeas corpus on March 31, 1992, which was granted to become effective when Andrea’s school year ended. The instant appeal ensued.

The only issue raised by the Krietemeyers is whether the trial court erred in granting Frank’s motion to dismiss their petition for custody of Andrea for lack of standing.

Section 601(b)(2) of the Act provides that “[a] child custody proceeding is commenced in the court *** by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.” Ill. Rev. Stat. 1991, ch. 40, par. 601(b)(2).

The Illinois Supreme Court has held that nonparents proceeding under section 601(b)(2) must first satisfy a standing requirement before the court may consider them for the legal custody of a child. (In re Custody of Peterson (1986), 112 Ill. 2d 48, 52, 491 N.E.2d 1150, 1152.) As this court has previously held, the meaning of the term “standing” as used in Peterson is distinct and involves the threshold issue of whether a nonparent has custody of a child for purposes of satisfying the requirements of section 601(b)(2). In re Custody of McCuan (1988), 176 Ill. App. 3d 421, 425, 531 N.E.2d 102, 105.

To satisfy the standing requirement under section 601(b)(2), the nonparent must show that the child is “ ‘not in the physical custody of one of his parents.’ ” (McCuan, 176 Ill. App. 3d at 425, 531 N.E.2d at 105, quoting Peterson, 112 Ill. 2d at 53, 491 N.E.2d at 1152.) When the nonparent meets this requirement, the court may then consider the nonparent’s claim for the legal custody of the child under the “ ‘best interest of the child’ ” standard. McCuan, 176 Ill. App. 3d at 425, 531 N.E.2d at 105, quoting Peterson, 112 Ill. 2d at 53, 491 N.E.2d at 1152.

Our supreme court’s decision in Peterson clearly supports Frank’s contention that the Krietemeyers did not have custody of the child on July 5, 1991, and thus did not have standing to bring an action under section 601(b)(2). In Peterson, the divorced mother of an infant child resided in her parents’ home with the child. The mother died after a lengthy illness. During this illness, the maternal grandparents provided most of the care for the child. After the death of the mother, the maternal grandparents and the natural father both sought custody of the child. The father moved to dismiss the grandparents’ petition for modification of custody on the grounds that the grandparents lacked standing to pursue the action under the statute.

The Illinois Supreme Court held that the maternal grandparents did not have standing under section 601(b)(2). The court found that when the mother died, the father gained legal custody of the child, even though he did not have physical custody. The grandparents’ refusal to give the father physical custody of the child did not confer custody on the grandparents.

Nonparents must show that the parent has relinquished “legal custody” of the child, rather than merely physical possession, before satisfying the standing requirement of section 601(b)(2). (McCuan, 176 Ill. App. 3d at 427, 531 N.E.2d at 105.) In the case before us, the Krietemeyers have based their allegation of standing solely on the fact that Andrea resided with the Krietemeyers after her mother’s death until the filing of the Krietemeyers’ petition in July 1991. There is absolutely no dispute that Frank consistently made it known that he wanted physical custody of Andrea after Connie’s death. Mrs. Krietemeyer admitted that she believed that Frank would never voluntarily relinquish his right to Andrea’s legal custody and that he left Andrea with the Krietemeyers only because of the trauma of Connie's death. It is apparent from the record that Frank agreed that the Krietemeyers maintain “temporary care” of Andrea, rather than that he agreed to relinquish legal custody. The Krietemeyers’ refusal to allow Andrea to move to Georgia with Frank and Frank’s agreement to allow the child to remain temporarily with the Krietemeyers did not confer custody with the Krietemeyers.

A court of review will not disturb an order of the trial court in a custody dispute unless the order is against the manifest weight of the evidence or unless a manifest injustice will result. (De Franco v. De Franco (1978), 67 Ill. App. 3d 760, 766, 384 N.E.2d 997, 1002.) Since it is manifest from the record that Frank did not relinquish custody to the Krietemeyers for purposes of satisfying section 601(b)(2), we affirm the trial court’s order dismissing the custody petition.

Affirmed.

LEWIS and GOLDENHERSH, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    CHICAGO BRIDGE AND IRON, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Danny Reed, Appellee).
    Fifth District (Industrial Commission Division)
    No. 5 — 92—0309WC
    Opinion filed July 2, 1993.
    Rehearing denied September 8, 1993.

      Stephen Masters & Associates, of Joliet, for appellant.
    James H. Cooksey and David M. Foreman, both of Crain, Cooksey, Veltman & Miller, Ltd., of Centraba, for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The employee, Danny Reed (claimant), filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.) against Chicago Bridge and Iron, Inc. (employer), alleging that he sustained work-related injuries shortly before his arrival at an out-of-State work site. Following a hearing, the arbitrator denied claimant’s application for benefits, finding he failed to prove that Illinois had statutory jurisdiction, that an employer-employee relationship existed at the time of the accident, or that his accident arose out of and in the course of employment. The Industrial Commission (Commission) reversed the arbitrator’s decision, and the circuit court confirmed the determination of the Commission. The employer appeals raising the following issues: (1) whether the Commission’s determination that there was a statutory basis for Illinois jurisdiction of this occurrence was error; (2) whether an employer-employee relationship existed at the time of the claimant’s accident; and (3) whether the Commission’s determination that claimant’s accident arose out of and in the course of employment was against the manifest weight of the evidence.

The claimant, an itinerant boilermaker-welder, began working for the employer in 1968. He was first hired by Thornton Cooper, a foreman for the employer. The transaction took place in Sandoval, Illinois, but the jobsite was in Zion, Indiana. The claimant continued to work exclusively for the employer and was periodically required to travel to work sites located in other States. When each job began, the claimant was placed on the payroll, and he filled out the required tax forms. When the job was completed, the claimant was terminated from the payroll. The employer was under no obligation to notify the claimant when work was available, nor was the claimant under any obligation to accept the job offered. The claimant’s last job prior to the one at issue was in Louisville, Kentucky, and was completed in February 1987.

Madonna Schweigert, the employer’s field personnel manager, testified that she contacted the claimant by telephone on or about April 24, 1987, and asked him if he was available to work at a jobsite in Pine Bend, Minnesota. Schweigert told claimant the wage rate for the job and that he would be compensated for travel to the jobsite at the rate of 30 cents per mile. The claimant agreed to go to the jobsite, and she gave him directions to the job once he reached Pine Bend.

On April 26, 1987, the claimant drove to Pine Bend. He arrived at around 7 p.m., located the jobsite, and spent the night at a motel. He was scheduled to report to the jobsite at 7 a.m. the next morning. At around 5:30 a.m. that morning, the claimant started driving toward the jobsite. When he was 200 yards from the employer’s parking lot and waiting to cross the last two lanes of a four-lane highway, the claimant’s truck was hit by another vehicle, and he was injured. At the time of the accident, the claimant was carrying in his truck several items of equipment belonging to the employer such as a hard hat, safety glasses, welding hood, lanyard safety belt, slag hammer, and hand wrench.

The claimant is a member of the National Transient Division of the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers, and Helpers. In the preamble of the agreement are several statements referring to the transitory nature of the work performed by the contractors and that the short duration of most jobs forces the workers to live a migratory life. The agreement also contemplates that employment begins and ends at the jobsite and that when a job ends the foreman authorizes the worker to report to a new job for rehire or, if no additional work is available, he is terminated from the payroll. Furthermore, if a worker reports for work and none is available, he will be paid the equivalent of four hours of work. In addition, when authorized to travel to the next work site, the worker will be paid a travel allowance at the rate of 30 cents per mile. However, the employee does not qualify for a travel allowance unless he works for the employer a minimum number of days.

In all of the issues raised, the employer relies on the argument that the union contract is the determining factor as to whether the claimant is entitled to compensation under the Act. Relying on Lingle v. Norge Division of Magic Chef, Inc. (1988), 486 U.S. 399, 100 L. Ed. 2d 410, 108 S. Ct. 1877, the employer first claims that the application of State law to the claim at issue is preempted by Federal law because its resolution involves an interpretation of the collective-bargaining agreement. In Lingle, the Court held that where the “resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law *** is pre-empted and federal labor-law principles *** must be employed to resolve the dispute.” (Lingle, 486 U.S. at 405-06, 100 L. Ed. 2d at 418-19, 108 S. Ct. at 1881.) The State-law claim in Lingle was a claim for retaliatory discharge under Illinois law. The Court held that the claim was not preempted by section 301 of the Labor Management Relations Act (29 U.S.C. § 185(a) (1982)) because the factual inquiries as to whether the employee was discharged for exercising his rights under the Act and whether the employer had a nonretaliatory reason for discharge do not turn on the meaning of any provision of the collective-bargaining agreement. Although “the state-law analysis might well involve attention to the same factual considerations as the contractual determination ***[,] such parallelism [does not] render[ ] the state-law analysis dependent upon the contractual analysis.” Lingle, 486 U.S. at 408, 100 L. Ed. 2d at 420, 108 S. Ct. at 1883.

The Illinois Supreme Court dealt with a similar issue in Gonzalez v. Prestress Engineering Corp. (1986), 115 Ill. 2d 1, 503 N.E.2d 308. Quoting the Supreme Court in Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 212, 85 L. Ed. 2d 206, 216, 105 S. Ct. 1904, 1912, the Gonzalez court addressed the fact:

“ ‘In extending the pre-emptive effect of section 301 beyond suits for breach of contract, it would be inconsistent with congressional intent under that section to pre-empt state rules that proscribe conduct or establish rights and obligations, independent of a labor contract.’ ” (Emphasis in original.) (Gonzalez, 115 Ill. 2d at 7-8.)

The Gonzalez court stated that neither the employer nor the union could strip an employee of the protection of Illinois law by restating the rights and obligations that arise in a private labor agreement. (Gonzalez, 115 Ill. 2d at 12.) Additionally, section 301 does not accord the substantive provisions of a private labor agreement the supremacy of Federal law. Gonzalez, 115 Ill. 2d at 12, citing Allis-Chalmers Corp., 471 U.S. at 212, 85 L. Ed. 2d at 216, 105 S. Ct. at 1911-12.

In its discussion of whether Federal law preempted a State tort claim, the supreme court in Ryherd v. General Cable Co. stated that “where the tort claim rests on breach of a duty which would not exist in the absence of the collective-bargaining agreement [citation], the tort claim is pre-empted.” (Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 425-26, 530 N.E.2d 431.) According to the court, a State claim is preempted “if the employee could not bring the claim ‘but for’ the collective-bargaining agreement,” and “[conversely, section 301 does not preempt ‘state rules that proscribe conduct, or establish rights and obligations, independent of a labor contract.’ ” (Ryherd, 124 Ill. 2d at 426, quoting Allis-Chalmers Corp., 471 U.S. at 212, 85 L. Ed. 2d at 216, 105 S. Ct. at 1912.) Applying the above law to the case sub judiee, we conclude that the union contract was a private labor agreement which did not have the supremacy of Federal law, and it did not preempt any rights the claimant might have under the Act. See Gonzalez, 115 Ill. 2d at 12.

The employer 'next contends that the Commission was without jurisdiction because neither the employment contract nor the work to be performed occurred within the State of Illinois. The employer finds support for this position in the fact that the accident occurred before the claimant arrived at the work site and that, according to the language of the contract, employment would not begin until he did. We disagree.

At the arbitration hearing both the claimant and Schweigert testified that Schweigert contacted the claimant by telephone in Illinois, offered him the job in Pine Bend, Minnesota, and told him when it was scheduled to begin, the rate of pay, and that claimant would be paid 30 cents a mile to travel to the jobsite. She further testified that the claimant accepted the job and agreed to travel to the Pine Bend location.

Illinois has jurisdiction over claims under the Act “including persons whose employment is outside of the State of Illinois where the contract of hire is made within the State of Illinois.” (Ill. Rev. Stat. 1987, ch. 48, par. 138.1(b)(2); F & E Erection Co. v. Industrial Comm’n (1987), 162 Ill. App. 3d 156, 168, 514 N.E.2d 1147.) A contract is made where the last act necessary to give it validity occurs. (F & E Erection Co., 162 Ill. App. 3d at 168.) Whether a contract of hire was made in Illinois is a question of fact for the Commission to determine. United Airlines, Inc. v. Industrial Comm’n (1983), 96 Ill. 2d 126, 131-32, 449 N.E.2d 119; F & E Erection Co., 162 Ill. App. 3d at 168.

In the case sub judice, the testimony of the claimant and Schweigert that a job offer was made and accepted in Illinois was sufficient to support the Commission’s determination that a contract of hire took place in Illinois. This finding is not altered by the fact that the contract was to be performed in a different State at a later time, the Commission’s determination was not against the manifest weight of the evidence, and this provided a basis for Illinois jurisdiction.

The employer next contends that the claimant failed to prove the existence of an employer-employee relationship at the time of the accident. While this issue was somewhat intertwined with that of jurisdiction, we will address it separately.

Central to the employer’s argument is the language of the union agreement which provides that employment begins and ends at the jobsite. According to the employer, because the claimant’s previous job with the employer had terminated in Louisville, Kentucky, in February 1987 and because the accident occurred before the claimant reached (albeit by only 200 yards) the Pine Bend site, the claimant was not an employee at the time of the injury. The employer argues that the union contract is the dispositive factor under Illinois contract law, based on the principle that public policy strongly favors the freedom to contract and that voluntary agreements should be honored unless contrary to such policy. (See Roanoke Agency, Inc. v. Edgar (1984) , 101 Ill. 2d 315, 461 N.E.2d 1365; Schniederjon v. Krupa (1985) , 130 Ill. App. 3d 656, 474 N.E.2d 805.) While we agree that the language of the contract cannot be ignored; we do not agree with the employer’s contention that it is dispositive. In Wenholdt v. Industrial Comm’n (1983), 95 Ill. 2d 76, 80, 447 N.E.2d 404, the court held that a contractual agreement is one factor to consider in determining a party’s, status, but it is not the only consideration. Furthermore, the label given by the parties to a written agreement does not control a claimant’s employment status. Rather, all of the facts of the case must be taken into consideration. Earley v. Industrial Comm’n (1990), 197 Ill. App. 3d 309, 317, 553 N.E.2d 1112.

In this case, other considerations include the fact that, in our discussion of jurisdiction, we concluded that a contract of employment had been entered into. While we do not equate this fact with saying that an employee-employer relationship existed, it was nevertheless a factor. We note the employer’s argument that the claimant was not hired during his telephone conversation with Schweigert because, until he was placed on the payroll, the employer was free to withdraw the job offer and the claimant was free to reject it. However, this would be true at any time either before or during the claimant’s employment and, consequently, cannot be used as a basis for rejecting the Commission’s determination that the claimant was hired in Illinois. In addition, the claimant worked regularly for the employer for 19 years. During this period he did not work for anyone else, and the scenario which resulted in his arrival in Pine Bend, Minnesota, on April 26, 1987, was the same scenario which resulted in his arrival at other work locations over the past 19 years.

Whether an employer-employee relationship exists is generally a fact question, and a determination must be made on a case-by-case basis after reviewing all of the relevant factors. As such, we cannot say that the Commission’s determination that an employer-employee relationship existed at the time of the claimant’s injury was against the manifest weight of the evidence.

A different result may have been obtained if the claimant had never worked for the employer prior to the Illinois telephone conversation or if he had regularly worked for others during the 19-year period. In sum, while the facts of this case may support an opposite conclusion, we cannot say that such a conclusion is clearly apparent.

The employer’s final contention is that the Commission’s determination that the claimant’s accident arose out of and in the course of employment was against the manifest weight of the evidence. Generally, an accident which occurs while an employee is traveling to or from work is not considered one that arises out of or in the course of employment. (Hall v. DeFalco (1988), 178 Ill. App. 3d 408, 413, 533 N.E.2d 448.) However, there are several exceptions to the general rule which the claimant asserts are applicable to his claim. An employee will be considered in the course of employment while traveling to or from work if the course or method of travel is determined by the demands or exigencies of the job rather than by his own personal preference as to where he chooses to live. (Lopez v. Galeener (1975), 34 Ill. App. 3d 815, 819, 341 N.E.2d 59.) Another exception occurs where the employer agrees to compensate the employee for time spent traveling to or from work, but the exception is not applicable where the employee is only reimbursed for the expense of travel. Commonwealth Edison Co. v. Industrial Comm’n (1981), 86 Ill. 2d 534, 539, 428 N.E.2d 165.

We agree with the employer that neither of these exceptions is applicable to the case sub judice where, even though the claimant was given directions to the work site, he was free to use any route he chose to reach his destination. Additionally, the compensation received by the claimant for his travel to the jobsite was reimbursement for travel expenses as opposed to payment for the time spent traveling.

The other exception to the general rule, which was addressed by the arbitrator and the Commission, is that of the traveling employee. The traveling employee is described in Wright v. Industrial Comm’n (1975), 62 Ill. 2d 65, 68-69, 338 N.E.2d 379, as one who is required to travel away from the employer’s premises in order to perform his job. The key factor of this exception is the reasonableness and foreseeability of the activity the employee was performing when he was injured. Wright, 62 Ill. 2d at 69-70.

The arbitrator concluded that if the claimant had arrived at the jobsite and his employment commenced before the accident occurred, this exception would have been applicable. However, the Commission concluded that the claimant’s employment began in Illinois when he was hired and that he was a traveling employee engaged in reasonable and foreseeable conduct traveling in a direct route from the motel to the jobsite at the time of his accident. While the employer cites to many cases, none are on point with the facts of this case.

At oral argument both parties seemed to agree that had the claimant never worked for the employer prior to receiving the call from Schweigert, he would not be a traveling employee. We agree. Conversely, if the claimant had not been terminated from the payroll after each job, we would have little difficulty characterizing him as a traveling employee.

While the facts sub judice are different than either of the above, we judge them closer to the latter. Given claimant’s long-standing (19 years) and exclusive employment with the employer, and considering that the purpose of the Act is to provide financial protection for injured workers through prompt and equitable compensation (Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 529, 505 N.E.2d 1026; Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 180-81, 384 N.E.2d 353), we do not believe that the finding of the Commission that the claimant was a traveling employee was against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court confirming the determination of the Commission is affirmed.

Affirmed.

McCULLOUGH, P.J., and WOODWARD, STOUDER, and RARICK, JJ., concur.


author: PRESIDING JUSTICE CHAPMAN

text:
    JUDITH EHORN, Plaintiff-Appellant, v. BOARD OF EDUCATION OF ROBINSON COMMUNITY UNIT SCHOOL DISTRICT No. 2, Crawford County, Illinois, et al., Defendants-Appellees.
    Fifth District
    No. 5 — 92—0301
    Opinion filed July 12, 1993.
    Rehearing denied September 9, 1993.

      David M. Smith, of Springfield, and E.H. Price, of Price & Shaner, of Robinson, for appellant.
    Barbara Fritsche and Maria M. Gonzalez, both of Rammelkamp, Bradney, Dahman, Kuster, Keaton, Fritsche & Lindsay, P.C., of Jacksonville, and Thomas R. Miller and Megan Paisley, both of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for appellees.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

In 1971 Judith Ehorn was employed as a teacher by the Board of Education of Robinson Community Unit School District No. 2 (the Board). In 1986, Ehorn became the principal of the elementary school and served as principal until she was reclassified as a classroom teacher in 1991. Ehorn filed a complaint against the Board and its members and prayed for a declaratory judgment that the defendants failed to comply with statutory requirements in reclassifying her. The trial court entered a judgment on the pleadings in favor of the defendants. We affirm.

A motion for judgment on the pleadings admits the facts well pleaded by the opposite party and seeks judgment on the question of law raised by the pleadings. (Cunningham v. MacNeal Memorial Hospital (1970), 47 Ill. 2d 443, 448, 266 N.E.2d 897, 899-900; Norris v. City of Chicago (1992), 230 Ill. App. 3d 1037, 596 N.E.2d 135.) The question before us is whether, as a matter of law, the plaintiff could succeed on the claims presented. In order to answer this question, an examination of the procedural background of this case is required.

On March 11, 1991, the Board passed a resolution which declared its intention to demote Judith Ehorn from principal to teacher. This resolution cited as grounds for the Board’s action, “that it is in the best interests of Robinson Community Unit School District No. 2.” On March 12, 1991, the Board sent Ehorn a copy of this resolution and a letter dated March 12, 1991, advising her of the reasons for the proposed reclassification:

“[Ms. Ehorn has] not made sufficient progress in meeting and correcting the administrative performance concerns expressed to Ms. Ehorn' on February 20, 1990. The Board adopts as its own the performance-evaluation of Judy Ehorn dated March 8, 1991. The eleven (11) areas of concern noted in the evaluation form the basis, in fact, for Ms. Ehorn’s proposed reclassification. The Board hereby incorporates the March 8, 1991 evaluation as part of this Notice.”

After plaintiff attended both a private and a public hearing regarding her reclassification, the Board notified Ehorn that she was reclassified to a teaching position, which is a reduction in rank.

Plaintiff filed a seven-count complaint for declaratory relief. In all counts plaintiff requested the following relief: (a) a declaration that plaintiff’s rights as set forth in section 10 — 23.8b of the Illinois School Code (105 ILCS 5/10 — 23.8b (West 1992)) were violated; (b) a money judgment in favor of the plaintiff and against the Board; and (c) other relief that the court might deem appropriate including reinstatement of plaintiff as a principal.

The same core of allegations is present in all counts of the complaint. Plaintiff alleges that under section 10 — 23.8b all reasons for her reclassification had to be presented to her no later than April 11, 1991. Plaintiff alleges that at a private hearing on April 16, 1991, she was provided with letters dated April 2, 1991, April 3, 1991, and April 12, 1991, which were additional matters regarding the basis of reclassification that were not previously disclosed as facts or grounds. Plaintiff also alleges that two letters dated December 18, 1990, and December 21, 1990, were presented at a public hearing on May 9, 1991, and that those letters were new information regarding her reclassification.

Plaintiff further alleges that (1) the facts regarding her reclassification were incomplete, unclear, and ambiguous; (2) the facts were neither directly set forth in the Board’s resolutions nor incorporated by attachment to the Board’s minutes; (3) all facts regarding her reclassification were refuted; (4) the reasons orally expressed by Board members at the May 9, 1991, hearing differed from those given in the March 11, 1991, notice; and (5) the Board relied on untrue allegations and refused to discuss facts at the hearings. Plaintiff further alleges that she is entitled to relief under section 1983 of the Civil Rights Act of 1871 (42 U.S.C.A. §1983 (West 1981)), and that the Board violated the terms of her employment contract.

The complaint focuses on whether the Board complied with the statutory requirements of section 10 — 23.8b of the Illinois School Code. Section 10 — 23.8b provides the requirements and procedures for reclassification of principals.

“No principal who has completed 2 or more years of administrative service in the school district may be reclassified by demotion or reduction in rank from one position within a school district to another for which a lower salary is paid without written notice from the board of the proposed reclassification by April 1 of the year in which the contract expires.
Within 10 days of the principal’s receipt of this notice, the school board shall provide the principal with a written statement of the facts regarding reclassification, and the principal may request and receive a private hearing with the board to discuss the reasons for the reclassification. If the principal is not satisfied "with the results of the private hearing, he may, within 5 days thereafter, request and receive a public hearing on the reclassification. Any principal may be represented by counsel at a private or public hearing conducted under this Section.
If the board decides to proceed with the reclassification, it shall give the principal written notice of its decision within 15 days of the private hearing or within 15 days of the public hearing held under this Section, whichever is later. The decision of the board thereupon becomes final.
Nothing in this Section prohibits a board from ordering lateral transfer of principals to positions of similar rank and equal salary.” (Emphasis added.) (105 ILCS 5/10 — 23.8b (West 1992).)

A breakdown of this section reveals the following requirements and procedures:

1. Written notice from the Board to the principal of the proposed reclassification by April 1 of the year in which the contract expires.

2. Within 10 days of the principal’s receipt of that notice, the Board shall provide the principal with a written statement of facts regarding reclassification.

3. Also within 10 days of the principal’s receipt of the notice, the principal may request and receive a private hearing with the Board to discuss reasons for the reclassification.

4. If the principal is not satisfied with the results of the private hearing, the principal may, within 5 days thereafter, request and receive a public hearing on the reclassification.

5. If the Board decides to proceed with reclassification, it shall give the principal written notice of its decision within 15 days of the private hearing or within 15 days of the public hearing, whichever is later.

6. Any principal may be represented by counsel at the public or private hearing conducted under this section.

Plaintiff does not contest the Board of Education’s ability to hire and fire its principals in accordance with its own reasonable standards. Plaintiff objects to what she describes as the Board’s flagrant refusal to abide by the plain words of section 10 — 23.8b. Defendants contend, on the other hand, that the plaintiff’s complaint, and the exhibits attached thereto, demonstrate that the Board fully complied with the provisions of section 10 — 23.8b.

It is undisputed that Judith Ehorn received (1) a written notice from the Board of her proposed reclassification from principal to teacher dated March 12, 1991, including certified copies of minutes of the Board meeting of March 11, 1991, (2) a Board resolution entitled “Resolution Reference the Proposed Reclassification of Judy Ehorn,” (3) a letter stating reasons for her reclassification, and (4) a statement regarding the proposed reclassification. In her complaint plaintiff acknowledges receiving these documents on March 12, 1991. Plaintiff also acknowledged receiving a copy of a March 8, 1991, evaluation of her performance as a principal.

Plaintiff admits that she received a private hearing on April 16, 1991, and that the Board adopted the resolution for reclassification following the private hearing. It is also undisputed that she received written notice of the resolution on April 17, 1991, which advised her of her right to request a public hearing within five days. A public hearing was held on May 9, 1991. Plaintiff admits that the Board provided written notice of its decision to proceed with reclassification by letter dated May 9, 1991, enclosing a certified copy of the resolution entitled, “Resolution Reference the Reclassification of Judy Ehorn.”

In order to satisfy plaintiff’s assertion that the Board’s procedures were contrary to section 10 — 23.8b, we will examine each of the charges in plaintiff’s complaint.

Section 10 — 23.8b requires the Board to provide the principal with “a written statement of the facts regarding reclassification” within 10 days of the principal’s receipt of the notice of reclassification. Plaintiff contends that all reasons for her reclassification had to be presented to her no later than April 11, 1991. While she received a statement of the reasons for her reclassification in March of 1991, Ehorn contends that after the April 11 deadline the Board erroneously added five items which served as additional reasons for its decision. Plaintiff contends that because she received five additional letters from the Board, the reasons for reclassification given prior to April 11 were rendered incomplete, unclear, and ambiguous.

Plaintiff’s performance evaluation of March 8, 1991, which was incorporated by the Board in its letter of March 12, 1991, noted the following areas of concern with regard to characteristics frequently deemed essential for school administrators: leadership; professional standards and ethics; school community acceptance; planner/organizer; supervisor; evaluator; policy implementer; faculty/staff personnel; school plant and facilities; fiscal responsibilities; and school/community relations. Specific comments included in the performance evaluation which are pertinent to our discussion are as follows:

“You need to take a leadership role in dealing with staff rather than reacting to situations. Example: The initiative for cleaning directions should have been identified and dealt with through your initiative rather than by complaints being lodged.”
“When policy decisions are made at the Board or Central Office level, you have an obligation to support those decisions. If you have a concern, know district policy, clarify interpretation, then support it. In at least two cases this year you created problems by not being professional in supporting district policy.”
“You don’t back district policy. Most recently, you were advised of Superintendent Leininger’s visit about two and a half weeks prior to his arrival. Yet only the day before, and only then through a sign posted, did you notify selected teachers of individual visits to classrooms. This was after you were told on 1/31/91 to take care of the situation. Support it or work through proper channels for change.”
“On January 31, 1991, you had completed no evaluations, although you have five new teachers that each require this evaluation. Some observation was apparently done, but district procedure and contract language have certainly not been met. As you were a part of developing district procedures for evaluating during 86-87 and 87-88, you should know the procedures. If not, bring yourself up to speed on procedures, then follow procedures on a timely basis.”
“On at least two occasions you have tried to circumvent district policy. In addition, you have virtually ignored district procedures on the evaluation process.”
“Work on cleanliness with custodians on daily cleaning of all facilities.”

The five letters plaintiff alleges constituted additional reasons for her reclassification which were not given prior to the April 11, 1991, deadline are from school superintendent Howard Jackson. Jackson’s April 2, 1991, letter cites the plaintiff’s apparent failure to in-service new teachers. Superintendent Jackson writes, “This situation creates yet another case where Board policy is not being carried out by you.” The letter of April 3, 1991, cites an instance where plaintiff allegedly did not follow district policy in the purchase of a flag for the school. Plaintiff was once again cited for not following district policy in Superintendent Jackson’s letter of April 12, 1991. In that letter plaintiff is criticized for misinterpreting district policy as to requests for professional leave to pursue additional college training. The superintendent’s letter dated December 18, 1990, advises Ehorn of complaints regarding the uncleanliness of the school building. Finally, the letter dated December 21, 1990, once again cites plaintiff for not following district policy in regard to personal-leave policies.

The first rule of statutory construction is to ascertain and give effect to the intent of the legislature. Where the statutory language is clear it will be given effect without resort to other sources. (Gill v. Miller (1983), 94 Ill. 2d 52, 445 N.E.2d 330.) Absent legislative intent to the contrary, we must give ordinary meaning to the statute’s notice provision. While a written statement of the facts regarding reclassification had to be given to Ehorn prior to April 11, 1991, the statute does not specify the content of the statement nor does it require that the statement be a conclusive and comprehensive list of reasons for the Board’s decision.

In Swanson v. Board of Education of Foreman Community Unit School District No. 124 (1985), 135 Ill. App. 3d 466, 481 N.E.2d 1248, the legislative history behind section 10 — 23.8b was examined. The Swanson court noted that section 10 — 23.8b provides procedural safeguards not previously afforded principals, namely, notice and an opportunity to discuss the reclassification with someone other than the superintendent. (135 Ill. App. 3d at 473-74, 481 N.E.2d at 1253.) Under the analysis of Swanson, the legislative intent of section 10— 23.8b was not to require that the Board give specific reasons for reclassification. (135 Ill. App. 3d at 473, 481 N.E.2d at 1252.) On the contrary, legislative debates concerning the statute indicate that the legislature intended to omit that portion of the original draft of the statute which required that the Board give specific reasons for reclassification. (See 79th Ill. Gen. Assem., House Proceedings, June 24, 1975.) In this case the five letters received after April 11, 1991, contain a reiteration of the stated reasons for reclassification. The letters cited school district policy violations and the complaints regarding the uncleanliness of the school building. Such problems were noted in the professional evaluation of March 8, 1991. Therefore, we cannot find that the trial court’s entry of judgment on the pleadings as to the plaintiff’s charges of untimely and inadequate notice was erroneous.

Plaintiff also alleges that the reclassification procedures were contrary to section 10 — 23.8b because the reasons for reclassification expressed by certain Board members at the May 9, 1991, hearing were different from the reasons given in the March 12, 1991, notice. In this case plaintiff received a written statement of the facts regarding reclassification, in which the Board specifically cited the 11 areas of concern noted in plaintiff’s evaluation of March 8, 1991, as a basis for its decision. The comments made by the Board members at the hearing of May 9, 1991, as set forth in the minutes of that hearing, are as follows:

“At this time comments were heard from the Board. Michael W. Elliott first addressed the question brought up by Mrs. Bush before the closed session. She had asked him if his mind had already been made up and his answer to that was yes. His statement was as follows. The Board has an obligation to employ those who will work in harmony and they also have the obligation to help solve problems. The Board is aware of the evaluations of the administrators but they are not and should not be involved in the evaluation process. The evaluation process is fair and effective. Judy Ehorn has been a principal for five years. Since then she has been evaluated each year. In the Spring of 1989 Judy Ehorn received a reclassification recommendation, but the Board retained her as principal by a 4-3 vote. In the Spring of 1990 this procedure was again implemerited and Superintendent Jackson’s recommendation was to reassign her to the classroom. After thorough discussion, they retained her as principal by a 6-1 vote and Superintendent Jackson changed his recommendation. Specific directives have been given to Judy Ehorn. Concerns were shared with her to help her correct the problems. She was evaluated in 1991 and again the Board discussed her evaluation with the Superintendent. The Board’s decision was that she had not done the job. Judy Ehorn has been given a fair opportunity to display her ability as a principal. This is the second time the Board has listened to Mrs. Ehorn’s explanations of why should [sic] should be retained, but has failed to address her most critical shortcomings. She has failed to grasp the fact that she has not made the necessary changes to be a principal. She should be reclassified to a classroom teaching position, a position in which he felt she would be an asset to the district.
Roy Midgett then made the following comments. He has served on the Board for 22 years during which time he has made a lot of hard decisions. At no time has the Board questioned Judy Ehorn’s devotion to the students. He strongly opposed her reclassification last spring but felt she should be given another opportunity to show them that she could be a part of the team. He specifically told her what was expected of her. If he felt this was not fair, he could not be a part of this reclassification. He felt that he must vote to reclassify her to a classroom teaching position.
Ronald Legg said he had known Judy and Cliff Ehorn for many years. Judy has many talents and the Board does not question that. It is in the best interest of the district to reassign her from principal to teacher. She can still serve the district but in a different capacity and she would best serve the district as a teacher.
Board President Carpenter said it is difficult to run a system with over 100 full-time teachers, 85 educational support personnel, 24 buses, four school buildings, over 1,825 students and a 6.9 million dollar budget. We have to work as a team.”

Plaintiff has failed to point out specific statements or comments made by the Board members which contravene the reasons given in the notice of reclassification. We note that the plain language of section 10— 23.8b does not restrict the discretion of the Board to offer what plaintiff views as additional reasons for reclassification. Nonetheless, it is apparent that the Board members did not set forth any reasons for plaintiff’s reclassification other than those that were previously set forth in her notice of reclassification. Based on the record, we cannot find that the comments of the Board members at the May 9, 1991, hearing were in contravention to section 10 — 23.8b.

Ehorn also argues that the facts regarding reclassification were not directly set forth in the Board’s resolutions nor directly incorporated by attachment to the Board’s minutes. The notice provision of section 10 — 23.8b requires only that a written statement of the facts regarding reclassification be given. The statute does not specify the form or content of such a statement, nor does it require that the facts be specifically set forth in the Board’s resolutions or incorporated by attachment to the Board’s minutes. The legislative intent of the statute is simply to provide school principals with notice and an opportunity to discuss the reasons for the reclassification with the Board. Meadows v. School District U-46 (1986), 141 Ill. App. 3d 335, 490 N.E.2d 140.

Plaintiff next argues that the Board violated section 10— 23.8b by refusing to discuss the facts cited for reclassification. Reclassification appears to be within the total discretion of the Board provided the notice and hearing requirements are met. (Swanson, 135 Ill. App. 3d at 473, 481 N.E.2d at 1252.) A hearing in this instance does not require an evidentiary hearing or an adversarial proceeding. (Swanson, 135 Ill. App. 3d at 475, 481 N.E.2d at 1254.) It is undisputed that plaintiff received a written statement of reasons for her reclassification, including a copy of her 1991 principal evaluation. It is also undisputed that plaintiff requested and received both a private and a public hearing before the Board. Given these facts, without more than a cursory allegation that the Board failed to discuss the facts, we cannot find that the trial court erred in entering a judgment on the pleadings as to this allegation.

Plaintiff’s next allegation is that the facts the Board relied on were untrue and were refuted. Plaintiff maintains that the Board’s reliance on untrue facts as the basis for its decision contravenes section 10 — 23.8b. The Board argues that it refrains from commenting upon the truth or falsity of the reasons for reclassification because such a question is irrelevant when considering the requirements of section 10 — 23.8b.

Under the statute, reclassification appears to be within the total discretion of the Board provided the notice and hearing requirements are met. (Swanson, 135 Ill. App. 3d at 473, 481 N.E.2d at 1252.) As explained by Senator Knuppel during legislative debates on this statute:

“This *** gives him the opportunity, first of all, to a private hearing where he can lay on the table before the board what the problems may or may not be with respect to the reason he’s being reclassified or if he feels that he’s not received a fair hearing, to have a public hearing. At least so that the board members and the people of the community will know whether he has been dealt fairly with.” (75th Ill. Gen. Assem., Senate Proceedings, June 25, 1975, at 153.)

Given a literal reading of the statute, in addition to its legislative history, we cannot find the trial court acted improperly in entering a judgment on the pleadings as to the charge that the Board relied on untrue facts in reaching its decision.

We now turn to plaintiff’s allegation in count VI of her complaint that “the failure of the said defendants to give timely notice of reasons, to give truthful reasons, to give specific reasons and to discuss the reasons at hearing constitute a denial of the plaintiff’s rights under *** 10 — 23.8b and the right to be secure in her good name and reputation which acts are a denial of legal rights under color of law in the contemplation of 42 U.S.C. Section 1983.” Because of our determination that plaintiff has failed to allege a deprivation of cognizable rights under 10 — 23.8b, no rights, privileges, or immunities have been infringed upon so as to trigger the operation of section 1983 (42 U.S.C.A. §1983 (West 1981)). Therefore, we cannot find that the trial court erred in entering a judgment on the pleadings as to this count.

Count VII of plaintiff’s complaint alleges that her employment as principal is governed by the provisions of an employment contract attached to her complaint. Count VII sets forth a section of that contract:

“7. Discharge for Cause — Throughout the term of the Agreement, Elementary Principal shall be subject to discharge for cause provided, however, that the Board does not arbitrarily or capriciously call for dismissal and that Elementary Principal shall have the right to service of written charges, notice of hearing, and a fair hearing before the Board ***.
* * *
13.1 This Agreement has been executed in Illinois and shall be governed in accordance with the laws of the State of Illinois in every respect.”

One point that immediately comes to our attention is that the employment contract was for the period from July 1, 1990, to June 30, 1991. Plaintiff’s reclassification occurred beyond the term of her contract as principal. The trial court did not err in entering judgment on the pleadings as to this charge.

Given the facts, section 10 — 23.8b of the School Code is the only-statute that governs in this case. The statute is clear, and as a matter of law the defendant was not required to fulfill the additional duties asserted by plaintiff. Therefore, the trial court did not err in granting defendants’ motion for judgment on the pleadings.

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

Affirmed.

LEWIS and WELCH, JJ., concur.