text:
    JAMES DOWNEN et al., Plaintiffs-Appellants, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—87—0814
    Opinion filed April 21, 1989.

      Brugge & Becker, of Breese (William J. Becker and Thomas Heiligen-stein, of counsel), for appellants.
    Stephen W. Thomson and Charles C. Compton, both of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, P.C., of Edwardsville, for ap-pellee.
   JUSTICE HOWERTON

delivered the opinion of the court;

David Barrett, a passenger in a car driven by Tommy Maxwell, was injured in an automobile wreck. Barrett’s injuries were more than Maxwell’s insurance could cover.

David Barrett, in a case that preceded this case, filed suit against Country Mutual Insurance Company, attempting to “stack” the under-insured motorist coverage under the Country Mutual insurance policies owned by James and Louise Downen, his stepfather and mother. (Barrett v. Country Mutual Insurance Co. (1988), 165 Ill. App. 3d 1167 (unpublished Rule 23 order).) The main issue in Barrett was whether the insurance policy was ambiguous with respect to a “no stacking” clause which limited coverage. We held that David Barrett could not “stack” the underinsured motorist coverage and specifically found that the amount of underinsured coverage available to Barrett under defendant’s policies was $100,000.

James and Louise Downen then brought this suit against Country Mutual asking the circuit court to declare $250,000 as the amount of available coverage under the same policies previously construed in Barrett, and for the same injuries received in the Maxwell wreck. They base their case on the following allegations: (1) defendant failed to offer underinsured motorist coverage to plaintiffs as required by the nii-nois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 613 et seq.); (2) defendant failed to advise them that underinsured motorist coverage was available in the same amounts as bodily injury liability coverage; and (3) defendant failed to specify the amount of the premiums and the nature and extent of the underinsured coverage available.

The circuit court of Bond County granted defendant’s motion to dismiss, holding that James and Louise Downen, as individuals, lacked standing to bring this suit. The circuit court also held that plaintiffs’ action was barred by the res judicata effect of the earlier Barrett decision.

After their case was dismissed, plaintiffs orally moved to amend their complaint to add a count for damages for Barrett’s personal injuries he got in a second wreck which ultimately killed him. The court denied plaintiffs’ motion.

Plaintiffs appeal the dismissal and the denial of the motion to amend.

Plaintiffs, the Downens, argue that they are the ones who purchased the insurance contract that covered Barrett, and therefore, they have standing. However, the complaint has no allegation that James and Louise Downen were injured in any way by, or in consequence of, the Maxwell wreck.

As we stated in Weihl v. Dixon (1977), 56 Ill. App. 3d 251, 253-54, 371 N.E.2d 881, 883:

“Standing is an aspect of justiciability in which the primary focus is upon the personal stake in the outcome of the controversy of the person seeking the adjudication of a particular issue. (Flast v. Cohen.) The person seeking to invoke the jurisdiction of the court must have some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. (59 Am. Jur. 2d Parties §26 (1971).) A sufficient interest in the actual controversy is equally a prerequisite for a person to maintain an action for a declaratory judgment (Ill. Rev. Stat. 1975, ch. 110, par. 57.1), and where such an interest is lacking, the plaintiff does not have standing to bring the action (Clark Oil & Refining Corp. v. City of Evanston, 23 Ill. 2d 48, 177 N.E.2d 191).”

Here, plaintiffs have not alleged personal injury to them, or injury to any substantive or legally protected interest of their own. They do not allege facts that would give them standing.

As a result, we affirm.

The trial court also correctly held that this action was barred by the doctrine of res judicata.

The present declaratory judgment action asked a circuit court to declare the policy limits for the same underinsured motorist coverage under the same policies covering the same insured for the same injuries sustained in the same wreck that was the subject matter of the first declaratory judgment action. What plaintiffs have done here is assert a different theory of relief arising out of the common core of the same single group of operative facts. This second theory is part of the same cause of action as the first for purposes of the doctrine of res judicata.

As summarized in Prochotsky v. Union Central Life Insurance Co. (1971), 2 Ill. App. 3d 354, 356-57, 276 N.E.2d 388, 390,the doctrine of res judicata prohibits the filing of a second action that arises out of the same controversy as the first:

“The law requires that both in law and in equity a plaintiff must present all grounds of recovery he may have. He cannot preserve the right to bring a second action after loss of the first merely by limiting the theories of recovery opened by the pleadings in the first action. [Citations.] In Phelps [Phelps v. City of Chicago (1928), 331 Ill. 80, 85, 162 N.E. 119, 122], the court said *** ‘[t]he rule of res judicata embraces not only what actually was determined in the former case between the same parties or their privies, but it extends to any other matters properly involved which might have been raised and determined.’ ”

The law affords to all a day in court, but it requires that all grounds of recovery or theories of defense be presented on that day. Pratt v. Baker (1967), 79 Ill. App. 2d 479, 223 N.E.2d 865.

In Barrett, the predecessor of this case, plaintiff failed to raise the additional ground for recovery that is the basis of this suit. Because it was not presented there, res judicata bars its presentation here. Accordingly, the trial court properly ruled that the second action was barred by res judicata and properly dismissed the amended complaint.

Finally, plaintiffs argue that the trial court erred in denying their oral motion for leave to amend their complaint.

Plaintiffs did not move to amend until after the case had been dismissed; only then did plaintiffs want to amend to add a count arising out of the second wreck which killed David Barrett. The motion was properly denied.

Amendments after judgment only may be made to conform pleadings to proof. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(c).) Here, the order dismissing plaintiffs’ complaint had been entered before plaintiffs moved to amend. The oral motion to amend was not made to conform the pleadings to proof; no evidence had been taken. The oral motion sought to join a second case with one that no longer was in existence in the circuit court; it had been dismissed. The dismissal was a final judgment. Basden v. Finck (1982), 106 Ill. App. 3d 108, 435 N.E.2d 783.

The circuit court is affirmed.

Affirmed.

WELCH, P.J., and LEWIS, J., concur.


source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    D’ELLA BREEZE, Special Adm’r of the Estate of Lana Dare, Deceased, Plaintiff-Appellant, v. ROBERT PAYNE et al., Defendants-Appellees.
    Fifth District
    No. 5—87—0721
    Opinion filed April 24, 1989.

      Michael J. Hanagan, of Hanagan & Dousman, of Mt. Vernon, for appellant.
    Patrick J. Hitpas, of Patrick J. Hitpas, P.C., of Carlyle, for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, D’Ella Breeze, as special administrator of the estate of Lana Dare, deceased, appeals from the summary judgment granted by the trial court in favor of the defendants, Robert Payne and Marcella Payne. Ten years old at the time of her death on June 1, 1984, Lana Dare collided with a truck on that date while riding a small two-wheeled motorbike owned by the defendants, who were her aunt and uncle. In granting summary judgment the trial court determined that the defendants had “no legal duty to avoid any of the acts or omissions which are alleged as elements of negligence in the Second Amended Complaint,” the pleading upon which defendants’ motion for summary judgment was based. The plaintiff presents a single issue for review, stated as “[wjhether there is a duty to warn, supervise, or instruct minor children when a defendant’s own activities create a foreseeable risk of harm.”

In her second amended complaint consisting of two counts, filed on June 18, 1987, the plaintiff, who is Lana Dare’s mother, alleged that on June 1, 1984, prior to the decedent’s injury and death, “one or both of the defendants told Lana Dare that she could ride a certain Italjet motorbike owned by Robert Payne.” Plaintiff alleged further that “[b]efore and at the time of the occurrence” leading to Lana Dare’s injury and death

“the defendants were negligent in one or more of the following ways:
(a) Failed to tell Lana Dare that she should not ride the motorbike unless one of the adults was present to help her, when defendants knew or should have known that such failure endangered Lana Dare’s safety.
(b) Failed to tell their own children that they should not start the motorbike for Lana to ride it unless one of the adults was present to help Lana, when defendants knew or should have known that such failure endangered Lana Dare’s safety.
(c) Failed to adequately supervise Lana Dare and their own children, when defendants knew or should have known that such failure endangered Lana Dare’s safety.
(d) Failed to properly instruct Lana Dare in the operation of the motorbike, when defendants know or should have known that such failure endangered her safety.”

On June 25, 1987, the defendants filed a motion to dismiss both counts of the second amended complaint for failure to state any duty on the part of the defendants either to perform any of the acts alleged to be required or to refrain from any of the omissions alleged. The defendants contended that as a matter of law the defendants had no duty to perform any of the acts alleged to be required or to refrain from any of the omissions alleged. Following argument, the trial court on July 1,1987, denied the defendants’ motion to dismiss.

On July 1, 1987, the defendants moved for summary judgment as to both counts of the second amended complaint. In support of the motion were attached the discovery depositions of B’Ella Breeze, taken on April 24, 1985, and again on March 24, 1987, and of Robert Payne and his daughter, Jessica Payne, taken on April 24,1985.

Robert Payne testified during his deposition that Lana Dare and her sister, Carrie Dare, had come to his house to visit sometime after noon on the day in question. He said that “quite a bit” before the collision occurred at about 4:30 p.m. he had asked Lana in his wife’s presence if she wanted to ride the motorbike and “she acted like she didn’t want to.” The motorbike was small, having a 50 c.c. engine, and was apparently intended for use by children, being uncomfortable for an adult to use. He stated further, “I asked her if she would like to learn how to ride it and I think she said, ‘Not right now.’ I told her it was real easy to ride but she still wasn't interested so I more or less dropped the subject.” He testified that he had started his own motorcycle, a Harley Davidson equipped with a 1340 c.c. engine and much larger than the motorbike, and “they were all wanting a ride, which was Lana and Jessica and Carrie, and the two young boys [two of the defendants’ sons] were out there also.” He said he had given Lana a ride first, for a total distance of approximately two miles. After he dropped Lana off and Carrie got on the motorcycle, he gave Carrie a similar ride, part of which was on Illinois Route 15, which is adjacent to the defendants’ property. When he dropped Lana off, the motorbike was in the front yard of the Payne residence. Immediately upon returning from giving Carrie her ride, he saw “smoke down on the highway and a motorcycle laying [sic] at the side of the road and a child laying [sic] in the middle of the road”; he discovered that the child was Lana Dare. She had ridden the motorbike and appeared to have lost control of it, inadvertently having gone down a grassy embankment bordering the defendants’ property and onto Illinois Route 15, where she struck the side of an oncoming truck.

Robert Payne said Lana had told him that she had ridden a “three wheeler” at her home. He continued:

“I think that is when I asked her if she wanted to ride that motorcycle [the motorbike] and I asked her, I said, ‘Do you have a three wheeler over at your house?’ She said yes. I asked her if she rode it. She said yes. I told her there wasn’t a whole lot of difference in the way they operate.”

The brakes of the motorbike in question were operated by the use of a foot lever for the back brake and a hand lever for the front brake. The gearshift was operated by using the left foot. The defendant stated again:

“I told Lana if she wanted to ride the bike — I thought she would but she wasn’t interested in it. I told her it was very easy to learn, and I asked her if she had any experience like on a three wheeler and she told me yes.”

He stated further:

“She wasn’t interested at that time. If I had known she might try to ride it later I would have went ahead and explained to her anyway, but I just dropped it since she didn’t act like she was interested. I didn’t have a chance to tell her where the brakes was or nothing. She wasn’t interested at that time.”

Robert Payne indicated that he owned two other motorcycles at the time, an 80 c.c. Suzuki and a “350 Honda,” neither of which was operable on the day in question. His own children, he said, never rode on the “bank.” He thought he had told his children Jessica and Jeremy not to operate the motorbike unless he or their mother was able to watch them. He did not recall when he had last told this to the children prior to the accident leading to Lana’s death.

Jessica Payne testified at her discovery deposition, at which time she was 10 years old, that Lana Dare had arrived with Carrie Dare at the witness’ home at about 1:30 p.m. on the day she was injured and died. The witness’ father, Robert Payne, had given Lana and apparently the witness’ brother Jeremy a ride on his motorcycle. Thereafter he gave a ride on his motorcycle to Carrie Dare and the witness’ brother Jared, about four or five years old at the time. Lana Dare, she said, had asked her to start the motorbike that Lana was operating when she was fatally injured. Using the kick starter, Jessica started the motorbike in the presence of her brother Jeremy, six years old at the time. Jeremy moved the motorbike off the kickstand for Lana. When Jessica started the motorbike, her mother, she said, was in the house, and her father was giving Carrie and Jared a ride on his motorcycle. Jessica put the motorbike into first gear for Lana and told Lana how to operate the back brake using her foot and the throt-tie on the handlebar. She did not tell Lana how to operate the front brake or where the gearshift was. As Lana was riding the motorbike, Jessica went into the house to tell her mother that Lana was doing so and to have her mother come out to see Lana ride it. When Jessica and her mother emerged from the house, Jessica saw Lana and the motorbike “wrecked” on the road near their house. Jessica testified that earlier in the day her father had told Lana and Carrie that, if they wanted to learn to ride the motorbike, he would teach them. Twice earlier in the day, Jessica said, Lana had watched as Jessica had ridden the motorbike. Jessica said that when she and Jeremy had ridden the motorbike they had done so with someone watching them, although her brother Justin, about 10 or 11 years old at the time, had ridden it with no one watching him. On the day of the occurrence, Justin was the only one of the defendants’ four children who was not at home. When Jessica and Jeremy rode the motorbike, they rode it, she said, “where Lana went, only we went in a circle.”

D’Ella Breeze testified that her husband had a “three wheeler” that Lana had operated while “supervised” on one to three occasions about “a year or so before” her death. She said that Robert Payne had given Lana and others rides on his motorcycle at the witness’ mother’s house on some occasions prior to this incident. Carrie Dare was 11 or 12 years old when this incident occurred. The Dare children had routinely visited the Paynes about two or three times a month since their infancy. The two families lived about a mile apart. June 1, 1984, was the first day that the Dare girls had been to the Payne residence since the Paynes had acquired the motorbike on which Lana was injured.

In the motion for summary judgment, the defendants asserted with regard to both counts of the plaintiff’s second amended complaint that

“[i]t is clear from the depositions in this cause that Lana Dare indicated that she was not interested in riding the motorbike and expressed no interest whatsoever when the subject was brought up by Robert Payne. Because of the lack of interest on the part of Lana Dare there was no duty on the part of Robert Payne or Marcella Payne to perform any of the acts or to refrain from any of the omissions which Plaintiff claims gives rise to the negligence claimed in the Second Amended Complaint. There is no genuine issue as to any material fact and from the facts of this occurrence, as a matter of law, Robert Payne or Marcella Payne had no duty to the Plaintiff’s decedent.”

The plaintiff subsequently filed a memorandum in opposition to the motion for summary judgment, to which plaintiff attached, inter alia, a copy of that portion of the transcript of the coroner’s inquest concerning Lana Dare’s death containing Robert Payne’s testimony. At the inquest, conducted on June 14, 1984, Robert Payne testified in part as follows:

“I told her earlier that day she could ride the bike but she didn’t want to at that time. I was going to teach her how. She decided to ride, evidently, and one of my children decided that she would ride so she tried to ride while I was taking her sister for a ride and when I got back, it was over.”

Plaintiff attached to her memorandum in opposition to the motion for summary judgment a copy of the transcript of the deposition of the defendant Marcella Payne taken on April 24, 1985. The defendant said her daughter had called Lana on the day she died and had asked her if she and Carrie wanted to come over to her house to play. The two Dare girls arrived on their bicycles early in the afternoon. After the family had eaten outside, her husband had given Lana and Jeremy a ride and then, when those two children got off the motorcycle, he had given Carrie and Jared a ride on it. She added, “That is all the riding that had been done except for Jessica and Jeremy had been riding the little bike in the yard.” She testified,

“We told the girls [Carrie and Lana] they could ride the [motor]bike if they wanted to. Right then we was getting ready to eat. We parked the bike and was getting ready to eat. Nothing else was said about it at that time. Then Robert started giving the kids rides and I went in the house.”

After the family had eaten, Marcella Payne had taken the things for the cookout into the house. She stated, “We told her [Lana] she could ride the bike earlier. I didn’t think she would do it when we weren’t there. It was when my husband was gone and I was in the house she decided to ride. I didn’t think about her trying it on her own.” Her daughter, Jessica, came into the house and told her to come outside to see Lana on the motorbike. As she did so, her husband asked her who was on the motorbike and she saw smoke. The Paynes had had the motorbike, she said, for about 10 days or two weeks prior to this incident: “We got it for Jeremy for graduation from kindergarten.” The Payne children were not supposed to go down the embankment or to get near the highway; they rode on the flat part of the Payne property to the front of the house and adjacent to the embankment. She testified further:

“Jessica said she [Lana] was going to ride it down to Edson’s, toward their house, turn around and come back, and apparently she couldn’t make the curve. Instead of going toward the garden, which wouldn’t have hurt a thing and she would have been safe, she went the other way, and I guess she was like Justin, she just got too close to that bank and didn’t know what to do.”

Following argument, the trial court on July 2, 1987, granted the defendants’ motion for summary judgment in an entry on the record sheet. On July 8, 1987, the plaintiff moved that the trial court enter “a more detailed order stating the basis for its ruling.” In an order entered August 17, 1987, the court stated, “The Court finds that the defendants’ Motion for Summary Judgment was granted for the reason that the defendants had no legal duty to avoid any of the acts or omissions which are alleged as elements of negligence in the Second Amended Complaint.”

Following a hearing upon the plaintiff’s motion for reconsideration of the court’s granting of the defendants’ motion for summary judgment, the court on September 21, 1987, entered an order denying the motion to reconsider. In that order the court stated in part:

“It is uncontested that the minor decedent child was told by Defendants that she could ride the small motorcycle in question and that Defendant Robert Payne would instruct her in its use. It is also uncontested that decedent stated that she wasn’t interested in riding the vehicle. Thereafter, in the absence of Defendants, decedent mounted the motorcycle which had been started by Defendants’ minor child, and decedent was killed after riding down an embankment and into the path of a truck passing by on a highway adjacent to Defendants’ property.
‘Although the degree of care exercised by the defendant is generally a question of fact, it becomes a matter of law where reasonable men of fair understanding could not disagree as to the conclusions resulting from the facts.’ Agnello v. Puzzo (1982), 110 Ill. App. 3d 913, 917-19, 443 N.E.2d 648, 651-52. Morrison v. Forest Preserve District (1987), 155 Ill. App. 3d 687, 689.
Here, reasonable men could not disagree that no duty arose as to this decedent child after she had declined instruction and disavowed interest in riding the motorcycle which became the instrumentality of her death. Although a person looking back on this occurrence might posit some other conduct which Defendant could have taken, the law does not require individuals to imagine all possible series of events.”

A motion for summary judgment should be granted only where the pleadings, depositions, admissions, and affidavits establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(c); Beal v. Kuptchian (1987), 164 Ill. App. 3d 191, 517 N.E.2d 712; Dealers Service & Supply Co. v. St. Louis National Stockyards Co. (1987), 155 Ill. App. 3d 1075, 508 N.E.2d 1241; Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396, 502 N.E.2d 846.) The determination that summary judgment is appropriate will not be reversed absent an abuse of the trial court’s discretion such that the plaintiff’s right to fundamental justice is violated. Beal, 164 Ill. App. 3d 191, 517 N.E.2d 712.

In order to state a cause of action for negligence, a plaintiff must allege the existence of a duty of care owed to the plaintiff by the defendant, a breach thereof, and damages proximately resulting from the breach. (Dealers Service, 155 Ill. App. 3d 1075, 508 N.E.2d 1241; Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 462 N.E.2d 502.) Although the issues of breach of duty and proximate cause are factual matters (Dealers Service, 155 Ill. App. 3d 1075, 508 N.E.2d 1241; Zimmermann, 122 Ill. App. 3d 1042, 462 N.E.2d 502), the question of the existence of a duty is one of law to be determined by the court (Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307; Robinson v. The Suitery, Ltd. (1988), 172 Ill. App. 3d 359, 526 N.E.2d 566; Sampson v. Zimmerman (1986), 151 Ill. App. 3d 396, 502 N.E.2d 846; Duncan v. Rzonca (1985), 133 Ill. App. 3d 184, 478 N.E.2d 603; Zimmermann, 122 Ill. App. 3d 1042, 462 N.E.2d 502). If no duty is found to exist, no recovery is possible as a matter of law and summary judgment in favor of the defendant is proper. (Beal, 164 Ill. App. 3d 191, 517 N.E.2d 712.) The question of the existence of a duty is determined by considering a number of factors, namely, the foreseeability of harm (Beal, 164 Ill. App. 3d 191, 517 N.E.2d 712), the likelihood of the injury, the magnitude of the burden of guarding against it, the consequences of placing that burden upon the defendant, public policy, and social considerations (Dealers Service, 155 Ill. App. 3d 1075, 508 N.E.2d 1241). In the absence of any showing upon which the court could infer the existence of a duty, no recovery is possible as a matter of law and summary judgment in favor of the defendant is, therefore, appropriate. (Loosier v. Youth Baseball & Softball, Inc. (1986), 142 Ill. App. 3d 313, 491 N.E.2d 933; Keller v. Mols (1984), 129 Ill. App. 3d 208, 472 N.E.2d 161.) The facts of a particular case are germane to the determination of the existence of a duty, because the existence thereof depends upon whether, under the facts of the case, such a relationship exists between the parties as to require the imposition of a legal obligation upon one of them for the benefit of another. Robinson, 172 Ill. App. 3d 359, 526 N.E.2d 566.

In the present case the decedent, a 10-year-old child, was visiting the defendants’ home in the company of her 11 or 12-year-old sister. Her parents were not present. (Cf. Kay v. Ludwick (1967), 87 Ill. App. 2d 114, 230 N.E.2d 494 (mother of a four-year-old child injured while attempting to climb upon a moving riding lawn mower was, like the child, a guest at the defendant’s residence when the child was injured; the “primary responsibility” (87 Ill. App. 2d at 119, 230 N.E.2d at 497) for the safety of the minor child rested with its mother).) The motorbike that she was operating at the time of her injury and death was small and apparently intended for use by children; indeed, defendants had purchased this motorbike as a gift for their own six-year-old child. Prior to that visit the decedent had never seen the newly acquired motorbike. Just before eating, the decedent was told by one or more of her adult relatives that she, as well as her sister, could ride the motorbike if she wished. The decedent was asked if she wanted to ride or wanted to learn how to ride the child-sized motorbike but indicated that she did not wish to do so at that time. She was informed by her uncle of how easy the motorbike was to ride and that there was not a lot of difference between operating a two-wheeled motorbike like that one and the three-wheeled vehicle she had operated at her own home. Her cousin of approximately her own age, Jessica, had been riding the motorbike in her presence during her visit. Her even younger cousin, Jeremy, whose bike it was, appears likewise to have been riding it during her visit. Just after eating, her uncle was giving rides on his Harley Davidson motorcycle to the children present, including the decedent. The motorbike was in the front yard of the defendants’ residence when the decedent finished riding on her uncle’s motorcycle. Moments later she expressed to her cousin the wish to operate the motorbike. Both young cousins helped her to do so. Within minutes she was dead.

In view of these facts, as revealed by the pleadings and depositions, we think that in making the determination of the existence of duty in this case the trial court’s focus upon a single remark of the decedent was too narrow. Although the decedent indicated that she was not interested in operating the motorbike at the time her uncle told her she could ride it and offered to teach her how to do so, these other facts are highly relevant to the determination of the existence of duty here. They show the likelihood of injury and the foreseeability of harm; they show that the burden upon the defendants, as the adults in charge, of guarding against harm was slight, particularly when weighed against the enormity of the danger presented. They show a relationship between the decedent and the defendants requiring the imposition of a legal obligation upon the defendants for the benefit of the decedent. We think that under these facts and circumstances, as shown by the depositions herein, the court could well infer the existence of a duty on the part of the defendants to the decedent, Lana Dare, and we accordingly conclude that such a duty existed. As a result, genuine issues remain as to material facts concerning the breach of duty and proximate causation of damages. Thus, summary judgment was improperly granted by the trial court. We therefore reverse the judgment of the circuit court of Jefferson County and remand the cause for further proceedings.

Reversed and remanded.

RARICK and CHAPMAN, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM A. GRAMC, Defendant-Appellant.
    Fifth District
    No. 5—87—0349
    Opinion filed April 24, 1989.

      Daniel M. Kirwan and Larry R. Wells, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On March 3, 1987, the defendant, William A. Gramc, was tried before a jury and found guilty of aggravated criminal sexual assault. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(aXl).) The defendant was sentenced to a 26-year term of imprisonment. On appeal, the defendant raises two issues: (1) whether he was convicted beyond a reasonable doubt; and (2) whether the trial court abused its discretion in sentencing the defendant. We affirm.

The complainant testified that on November 4, 1986, at 12:30 p.m. she was doing her laundry at the Shiloh Station Laundromat when the defendant entered. No one else was in the laundromat at that time. After a short conversation, the defendant checked the bathroom and the doors, then came up behind the complainant and grabbed her around the neck. The complainant fought to escape from the defendant, got as far as the front door, and attempted to pull it open. The defendant kicked the front door shut with his foot and displayed a pocket knife, stating, “[I]f you do what I say, I won’t hurt you.” The defendant then forced the complainant into the bathroom of the laundromat and locked the door. The complainant, in what she described as an attempt to “try to psych” the defendant, asked him, “[W]hy you didn’t you just come up and ask me instead of grabbing me?” The defendant then took money from the complainant’s purse and forced her to perform an act of oral sex. The defendant next forced the complainant to undress, and after taking off his own clothes, he forced her to lie face down on the bathroom floor and submit to an act of anal sex. The defendant also forced the complainant to submit to an act of vaginal intercourse. During this time, the defendant told the complainant that he was dying of cancer and did not care what he did. The complainant estimated that they remained in the bathroom between IV2 and 2 hours, during which time they smoked several cigarettes. While still in the washroom, the complainant and the defendant became aware that other people were in the laundromat. The complainant stated that “he told me that I had better not scream or I would have that knife right through my throat.”

Following the sexual assaults, the defendant ordered the complainant to get dressed and took her car keys from her purse. He reminded her that he still had the knife and ordered her to follow him out of the laundromat. As they began to leave, the complainant noticed that there were two people in the laundromat. They did not look at her as she left the laundromat, and she said nothing to them because she feared for her life.

The building which housed the laundromat contained five or six other businesses. These businesses were open, and there were 10 to 12 cars parked in the parking lot at the time. One of the businesses was only about 10 steps away from the complainant as she walked to the car. The defendant unlocked the driver’s door of the complainant’s car and got in. He then unlocked the passenger’s door from the inside and the complainant got in the car. The complainant testified that she did not attempt to enter one of the businesses or run away because she was frightened.

After leaving the parking lot, the defendant drove the complainant to- a convenience store. He entered the store with the car keys in his possession to buy the complainant a Pepsi which she had requested. The defendant was in the store for approximately five minutes and the complainant stated that he watched her from the store. The defendant’s attorney questioned the complainant concerning her failure to cry out to people who were coming and going from the convenience store or to lock the car doors and sound the horn in an attempt to draw attention. The complainant testified that it would have been futile to lock the doors in view of the fact that the defendant had the keys to the car in his possession, and that she mouthed “help me” through the glass but no one who was entering or leaving the store looked at her. Concerning her failure to run while the defendant was in the convenience store, the complainant stated: “I was afraid that nobody would help me and I would run out and get killed by a car or something because I was so afraid.”

When the defendant returned to the car, he drove them behind a restaurant where the complainant was again forced to perform an act of oral sex. The defendant then drove the car without any apparent destination for some time, until the complainant told him that she needed to use the bathroom, hoping that he would take her to a service station where she could lock the bathroom door and scream until she was rescued. Instead, the defendant turned down an alley and instructed the complainant to relieve herself there. When she was finished, the defendant got out of the car and began to fondle her. In an attempt to “psych out” the defendant and make him stop, the complainant told him to stop because someone would see them. They then returned to the car, and while trying to leave, the defendant backed the car into a ditch. The defendant forced the complainant to try and push the car out of the ditch, and when she was unsuccessful, he told her to get behind the wheel while he pushed the car from the rear. When the defendant lifted the car out of the ditch, the complainant drove away, went directly to a service station, and called the police. The defendant was apprehended walking down the road about 15 minutes later. He was brought by the police to the service station where he was identified by the complainant.

After she had identified the defendant, the police drove the complainant back to the laundromat, where she finished doing her laundry. When questioned about this action, the complainant explained that the police had given her permission to go back and finish her laundry, and that the clothes she was washing when the defendant assaulted her represented her entire wardrobe and she feared they might be stolen. After finishing her laundry she returned home and called the police for further instructions. She was then taken to a hospital for an examination and tests. On cross-examination the complainant admitted that she had been under psychological treatment for some time but had been off medication for two years.

Veronica Paddock was the emergency room nurse at the hospital when the complainant arrived. She testified that the complainant was bruised on the neck and on one wrist.

Captain James Lay of the sheriff’s department testified that after the defendant was arrested, he took the complainant to the laundromat, where she identified a pack of cigarettes on the bathroom floor and a bottle of whiskey in the bathroom sink as belonging to the defendant. The complainant also gave Captain Lay a gray jacket and black belt from her car which she identified as belonging to the defendant. Captain Lay stated that to the best of his knowledge no weapon was ever found.

Ben Schmidt testified that he was working at Gas Mart on November 4, 1986, when a woman entered and asked to use the phone. She stated that she had been raped and needed to call the police. Schmidt stated that she was upset and crying. Later, when the defendant was brought to the gas station, the complainant identified him as her assailant. At that time she began to cry.

After closing arguments and instructions, the jury retired to deliberate. The jury sent a note back to the judge asking if it was necessary for them to find that the defendant had a weapon in order to convict him. After consultation with defense counsel and the prosecutor, the judge informed the jury that they had received all the necessary instructions and that they should review them. The jury found the defendant guilty of aggravated criminal sexual assault.

At the sentencing hearing, the State recommended a 15-year term of imprisonment. The defendant provided the court with a written statement of his version of the events of May 4, 1986. In that statement, he admitted having sex with the complainant in the bathroom of the laundromat and in her car. He claimed, however, that these acts were consensual. After considering the defendant’s statement and the arguments of counsel, the court sentenced the defendant to a 26-year term of imprisonment.

The defendant argues that he was not proved guilty beyond a reasonable doubt because the complainant’s testimony was so inconsistent with her having been a victim of forced sexual assault that it should be rejected as contrary to human nature and experience. In support of his position the defendant calls attention to the complainant’s failure to flee or call for help; her actions after the defendant’s arrest; and conduct of the defendant which was inconsistent with that of an assailant.

The defendant cites a number of specific situations where he claims that the complainant’s failure to flee or seek help demonstrates that she was not an unwilling victim of sexual assault. The defendant notes that the complainant did not call for help when she heard people come into the laundromat while she and the defendant were in the bathroom, nor did she seek help from the two people in the laundromat as she and the defendant walked by them on their way to the parking lot. The defendant also posits that the complainant could have run into one of the nearby businesses, or she could have fled when the defendant entered the driver’s side door of her automobile while she remained outside. We believe that the complainant’s inaction under these circumstances was understandable. The defendant had displayed a knife, threatened to Mil the complainant, and told her that he was dying of cancer and didn’t care what he did. He then brutally assaulted her in a public restroom in the middle of the day. Any reasonable person would be frightened in such a situation. This understandable fear, coupled with the defendant’s reminder to the complainant that he still had the knife, and his promise to her that if she left without screaming he would drive down the road and let her out, are sufficient to explain the complainant’s actions.

The defendant insists, however, that “most incredible of all was [the complainant’s] lack of action when left totally alone in a public parMng lot.” The defendant notes that the complainant was alone in the parMng lot of the convenience store for five minutes and yet she did not try to run away or roll down the car window and tell any of several passers-by of her situation. The defendant claims that the complainant’s conduct was a nonverbal statement that she had not been assaulted. We do not agree.

The significance of a victim’s failure to escape or seek assistance depends on the totality of facts and circumstances of the case. (People v. Redman (1986), 141 Ill. App. 3d 691, 704, 490 N.E.2d 958, 966; People v. Daniels (1984), 129 Ill. App. 3d 894, 899, 473 N.E.2d 517, 521.) There is no requirement that a victim of sexual assault attempt to escape or to cry out where she is restrained by fear or where to do so would endanger her life. (See Redman, 141 Ill. App. 3d at 704, 490 N.E.2d at 966; People v. Hendon (1975), 33 Ill. App. 3d 745, 750-51, 338 N.E.2d 472, 476.) In the instant case, the complainant testified that the defendant took the car keys when he left the car and that he watched her from the store. She also stated that she attempted to attract help by mouthing “help me” through the glass but no one who was entering or leaving the store looked at her. Concerning her failure to run away, she stated: “I was afraid that nobody would help me and I would run out and get killed by a car or sometiiing because I was so afraid.” While a more courageous or less prudent person might have chosen a different course of action, we do not believe that her conduct was so incredible as to raise a reasonable doubt concerning the defendant’s guilt. Similarly, we believe that her failure to attempt escape upon being let out of the car to relieve herself in the alley, and while attempting to push the car out of the ditch, are explained by her fear of the defendant. Furthermore, we do not view the complainant’s two attempts to “psych out” the defendant as indicative of a willingness on her part to engage in sexual activity, but rather as an attempt to avoid serious physical harm.

The defendant also maintains that the complainant’s conduct following his arrest was inconsistent with that of a victim. After identifying the defendant as the person who had assaulted her, the complainant returned to the laundromat and finished doing her laundry. She testified that the police had given her permission to go back ¿nd finish her laundry and that the five loads she was washing when the defendant assaulted her were her entire wardrobe and she feared that it might be stolen. After completing the laundry she returned home and called the police for further instructions. The police then came to her home and took her to the hospital to be examined. While such behavior might be considered unusual, we do not believe that it casts serious doubt on the complainant’s testimony. The defendant assaulted her while she was in the process of laundering her clothes. After identifying her assailant, she was taken by the police to the laundromat, where she identified various objects at the crime scene. Given that the clothes had already been partially laundered, and that she feared the possible loss of her entire wardrobe, completing the job once she had been taken to the laundromat may have been the simplest solution.

The defendant also argues that testimony of the complainant of certain conduct of the defendant is not consistent with that of one who is committing a sexual assault. For example, the complainant testified that upon leaving the laundromat and reaching her car, the defendant got in on the driver’s side, and then reached across the seat and unlocked the door on the passenger side so that the complainant could enter. The defendant opines that it is more likely that an assailant would have forced his victim to enter the driver’s side door before him and slide across the seat while he maintained a hold on her. In addition, defendant claims that an assailant would not leave his victim alone in the parking lot of a convenience store, nor would he have allowed her to get behind the wheel of the car while he attempted to push it out of the ditch. Finally, defendant notes that he was arrested on a public road while walking in a direction that would lead him towards, rather than away from, the laundromat.

While we agree that such conduct could be viewed as evidence that the defendant was unconcerned about the complainant’s escape or his own capture because no crime had been committed, there are reasonable alternative explanations. For example, it is possible that the defendant felt that the threats made to the complainant and his reminders to her of the weapon which he carried had made her frightened and submissive enough to allow him to take a few risks. The resolution of such issues is the function of the trier of fact, and its determination will not be disturbed unless the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. (People v. Redman (1986), 141 Ill. App. 3d 691, 490 N.E.2d 958; People v. Szudy (1982), 108 Ill. App. 3d 599, 439 N.E.2d 137.) We hold that the jury could have properly found that the defendant’s conduct did not create a reasonable doubt of his guilt.

In support of his position the defendant cites a number of cases in which defendants convicted of sex offenses have had their convictions reversed. (See, e.g., People v. Taylor (1971), 48 Ill. 2d 91, 268 N.E.2d 865; People v. DeFrates (1965), 33 Ill. 2d 190, 210 N.E.2d 467; People v. Scott (1950), 407 Ill. 301, 95 N.E.2d 315; People v. Carruthers (1942), 379 Ill. 388, 41 N.E.2d 521; People v. Wright (1986), 147 Ill. App. 3d 302, 497 N.E.2d 1261; People v. Rosario (1982), 110 Ill. App. 3d 1020, 443 N.E.2d 273; People v. Darcy (1974), 18 Ill. App. 3d 1068, 311 N.E.2d 353; People v. Keeney (1973), 10 Ill. App. 3d 296, 293 N.E.2d 492; People v. Bain (1972), 5 Ill. App. 3d 632, 283 N.E.2d 701; People v. Blevins (1968), 98 Ill. App. 2d 172, 240 N.E.2d 434.) The defendant contends that these cases stand for the principle that when a complainant is in control of her faculties and she passes up opportunities to flee or get help over a long period of time, her allegations of forced sexual acts and abduction must be rejected. We have examined the cases cited by defendant and we do not find them to be dispositive. We adhere to the general rule that a court of review will not disturb a conviction unless the evidence is so palpably contrary to the verdict or so unsatisfactory and unconvincing that it raises a serious doubt of the defendant’s guilt. (People v. DuPree (1987), 161 Ill. App. 3d 951, 962, 514 N.E.2d 583, 591.) Whether such a doubt exists will, of course, depend upon the facts unique to each case.

In the instant case, we hold that the evidence was sufficient to find the defendant guilty beyond a reasonable doubt. Although it is the duty of a reviewing court to carefully examine the evidence in a case alleging sexual offenses, the court must not usurp the function of the trier of fact in weighing the credibility of the witnesses and evaluating the evidence presented. (People v. Jameson (1987), 155 Ill. App. 3d 650, 656, 508 N.E.2d 267, 272.) If the testimony of the complaining witness is clear and convincing or is corroborated by some other facts or evidence, it is sufficient to support a finding of guilty. (People v. DuPree (1987), 161 Ill. App. 3d 951, 960, 514 N.E.2d 583, 588; Peo ple v. Daniels (1984), 129 Ill. App. 3d 894, 899, 473 N.E.2d 517, 521.) The testimony of the complainant in the present case was clear and convincing and corroborated by her prompt complaint after escaping from the defendant. (See People v. Redman (1986), 141 Ill. App. 3d 691, 490 N.E.2d 958.) Moreover, her testimony was further supported by the bruises observed by the emergency room nurse and the testimony that when the complainant entered the Gas Mart to call the police she was upset and crying.

Finally, the defendant contends that the trial court abused its discretion in sentencing him to a 26-year term of imprisonment when the State’s Attorney recommended only a 15-year term. We disagree.

Absent an abuse of discretion by the trial court, a sentence may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 884.) “[T]he trial court is normally the proper forum in which a suitable sentence is to be determined and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight.” (Perruquet, 68 Ill. 2d at 154, 368 N.E.2d at 887.) Furthermore, as the defendant acknowledges, a prosecutor’s sentencing recommendation is not binding on the trial court. People v. Dorris (1982), 110 Ill. App. 3d 660, 442 N.E.2d 951.

In the instant case, the defendant’s presentence report indicates that he was convicted in Missouri in 1980 for felony theft and placed on four years’ probation. This probation was terminated early due to his incarceration in Illinois when he was found guilty in a jury trial of aggravated battery to a child and sentenced to seven years in the Illinois Department of Corrections. He was released on mandatory supervised release on January 18, 1985, and was arrested approximately four months later on a charge of battery, to which he pleaded guilty. He was again arrested less than a year later, on April 14, 1986, for resisting a peace officer, and he again pleaded guilty.

At sentencing, the court listed the factors in aggravation, including that the defendant’s conduct threatened serious physical harm to the victim in addition to the trauma of the criminal sexual assault itself. The court detailed the facts of the defendant’s prior criminal history, his violation of probation from Missouri, and his violation of parole in Illinois. In sentencing the defendant, the court stated:

“So I find that you not only have a history of criminality, but you have a certain amount of disrespect for the system or the meaning behind all of it in light of the fact that you have chosen to violate your probation before and your parole thereafter. I would think a sentence in this case is necessary to deter others. I don’t find anything mitigating in your actions herein and I tend to disagree with the State. I don’t think you ought to receive fifteen years in the penitentiary. I think you ought to receive twenty-six years in the penitentiary.”

The court’s observations and specific finding that the State’s Attorney’s recommendation was inadequate indicate that the trial court weighed the evidence and the State’s recommendation and came to the conclusion that the seriousness of the defendant’s conduct was such that a 15-year sentence as recommended by the State’s Attorney was inappropriate. We find no abuse of discretion by the trial court in sentencing the defendant.

For the reasons given above, we affirm the defendant’s conviction for aggravated criminal sexual assault and affirm his sentence.

Affirmed.

GOLDENHERSH and RARICK, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
    MARIANNE HOFFMEISTER, Plaintiff-Appellee, v. K MART CORPORATION, Defendant-Appellant.
    Fifth District
    No. 5-87-0776
    Opinion filed April 27, 1989.

      William J. Knapp, of Burroughs, Simpson, Hepler & Broom, of Edwardsville, for appellant.
    Brad L. Badgley, of Heiligenstein & Badgley, P.C., of Belleville, for ap-pellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

On July 27, 1987, plaintiff, Marianne Hoffmeister, filed a one-count complaint against defendant, K mart Corporation, in the circuit court of St. Clair County. The complaint alleged that on December 31, 1986, plaintiff sustained injuries when she tripped on an entry carpet which was turned up on the edge while shopping in defendant’s store in Fair-view Plaza, Centraba, Illinois. Centraba is located partially in Clinton County and partially in Marion County.

On September 14, 1987, defendant filed a motion to transfer venue from St. Clair County to either Clinton County or Marion County on forum non conveniens grounds. The motion, which is verified, alleges that plaintiff is a resident of the State of Florida; that the only known occurrence witnesses are plaintiff’s husband, also a resident of Florida, and plaintiff’s son, a resident of Centraba, Marion County; that the K mart store where the plaintiff fell is located in Centraba, Clinton County; that all K mart employees with whom plaintiff had any contact either before or after her fall reside in Clinton County; that plaintiff was examined in the emergency room of St. Mary’s Hospital in Centraba, Marion County; that plaintiff’s treating physician resides in the State of Florida; that a fair trial could be had in either Marion County or Clinton County; that the judicial backlog of cases is greater in St. Clair County than in Marion County; that trial of the cause in Clinton County would facilitate a jury view of the premises where plaintiff fell; that plaintiff’s lawsuit has no connection whatsoever with St. Clair County other than the fact that plaintiff’s attorneys have their offices there; and that to try the case in St. Clair County would place an undue burden on its citizens and court system.

On October 16, 1987, plaintiff filed an unverified response to defendant’s motion to transfer venue. The response alleges that the county seat of St. Clair County is only 30 to 35 miles from the site of plaintiff’s fall; that plaintiff had contact with only one K mart employee regarding her fall, whose address is unknown; that she was not treated, but only examined, at St. Mary’s Hospital in Centraba, and that all medical care and treatment has been performed by physicians practicing in the State of Florida; that the judicial backlog in St. Clair County is not great; that no jury view of the accident site will be necessary; that trial of the cause in St. Clair County would not burden its citizens or court system; arid that defendant’s motion was filed for the sole purpose of forum shopping.

The trial court denied defendant’s motion to transfer venue by order dated October 19, 1987, finding that the facts do not so strongly favor defendant as to defeat plaintiff’s choice of forum. Defendant appeals.

Since the Illinois Supreme Court’s decision in Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291, the law in Illinois regarding the doctrine oí forum non conveniens has been fairly well settled. Bland sets forth the various factors to be considered by the trial court in deciding a, forum non conveniens motion:

“Factors relating to the private interests of the parties include the ‘relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.’ [Citation.]
Public factors relevant here include the administrative difficulties flowing from court congestion; ‘a local interest in having localized controversies decided at home’; and the unfairness of burdening citizens in an unrelated forum with jury duty.” (116 Ill. 2d at 224, 506 N.E.2d at 1294.)

All of these factors must be weighed and balanced (Bland, 116 Ill. 2d at 225, 506 N.E.2d at 1294), keeping in mind that a plaintiff’s right to select a forum is a substantial one. (Bland, 116 Ill. 2d at 225, 506 N.E.2d at 1295.) Thus,

“[ujnless those factors strongly favor the defendant, then the plaintiff should be allowed to exercise his choice in deciding in what forum to bring the case when venue is proper.
If there are sufficient factors that favor the plaintiff’s choice of forum, then the defendant’s inconvenience should not be considered, provided venue is proper. For unless the balance strongly favors the defendant, then the plaintiff should be able to exercise his statutory right to choose his forum.” (Bland, 116 Ill. 2d at 225, 506 N.E.2d at 1295.)

We are mindful that the plaintiff has chosen a forum of which she is not a resident, and therefore her choice is entitled to less deference. (Bland, 116 Ill. 2d at 228, 506 N.E.2d at 1296.) However, less deference does not mean no deference, and we must still presume that plaintiff has chosen the forum because it is convenient to her, especially where she is not a resident of the State of Illinois and her counsel have their offices in the chosen forum. See Darnell v. Ralph Korte Equipment Co. (1986), 144 Ill. App. 3d 564, 569, 494 N.E.2d 1206, 1209.

The limited record we have before us, which consists of plaintiff’s complaint, defendant’s verified motion, plaintiff’s unverified response and the trial court’s written order, indicates that the factors do not so strongly favor defendant that plaintiff’s choice of forum should be overturned. The party seeking transfer of venue on forum non con-veniens grounds has the burden of showing that plaintiff’s chosen forum will be unduly burdensome or inconvenient to him. (Baker v. Burlington Northern R.R. Co. (1986), 149 Ill. App. 3d 674, 682, 500 N.E.2d 1113, 1119-20.) Here, defendant has failed to provide a record showing entitlement to the relief sought.

Looking at the factors involved, the parties do not dispute that alternative fora are available and that venue would be proper in Clinton County. As to access to sources of proof and the availability and cost of obtaining witnesses, the record reveals that only one K mart employee was contacted by plaintiff regarding her fall, and the address of this potential witness is unknown. Of the occurrence witnesses, one, plaintiff’s son, resides in Marion County. The other occurrence witnesses, plaintiff and her husband, reside in Florida. Although plaintiff was initially examined after her fall at a hospital in Marion County, all of her medical treatment was provided by physicians in Florida. Further, although defendant argues in its brief that all pertinent business records and reports are located in Clinton County, and that it will be necessary for defendant to produce numerous witnesses from Clinton County, the record does not support this argument. Finally, it is not likely that a jury view of the premises will be appropriate in this case, as plaintiff’s complaint alleges that she tripped over an entry carpet with an upturned edge.

We do not think these private interest factors, which relate to the convenience of the parties, so heavily weigh in defendant’s favor as to justify a transfer of venue. While some witnesses may reside closer to Clinton County than to St. Clair County, all are accessible in that they are subject to compulsory process. (See Darnell v. Ralph Korte Equipment Co. (1986), 144 Ill. App. 3d 564, 568, 494 N.E.2d 1206, 1209.) Furthermore, a transfer may entail greater cost and inconvenience to the parties’ attorneys. (Darnell, 144 Ill. App. 3d at 568-69, 494 N.E.2d at 1209.) Plaintiff’s attorneys have their offices in St. Clair County, while defendant’s attorneys are located in the adjacent County of Madison. We cannot say that the private interest factors militate in favor of defendant’s desired forum.

Turning now to the public interest factors, which relate to the administration of the courts, defendant argues that court congestion is much greater in St. Clair County than in Clinton County, citing a 1984 Annual Report of the Administrative Office of the Illinois Courts to the Supreme Court. While court congestion is certainly a factor to be considered, the circuit court of St. Clair County, which denied defendant’s motion to transfer venue, apparently did not consider this factor to weigh heavily in defendant’s favor. The trial court was in a better position than this court to assess the burden posed by its own docket, and we will not second-guess its judgment. Baker v. Burlington Northern R.R. Co. (1986), 149 Ill. App. 3d 674, 679, 500 N.E.2d 1113, 1118.

Defendant also argues that plaintiff’s lawsuit has no factual connection to St. Clair County and that St. Clair County has no interest in the litigation. While this is certainly a factor to be considered, it is only one factor, which the trial court apparently found was outweighed by other factors favoring plaintiff’s choice of forum.

Whether a forum non conveniens motion should be granted or denied rests -within the sound discretion of the trial court, and its ruling -will not be disturbed absent an abuse of discretion. (Darnell v. Ralph Korte Equipment Co. (1986), 144 Ill. App. 3d 564, 566, 494 N.E.2d 1206, 1207.) Thus, on review of a trial court’s decision regarding a forum non conveniens motion, the question is not whether a reviewing court would have weighed the factors differently or would have resolved the issue as did the trial court. (Darnell, 144 Ill. App. 3d at 570, 494 N.E.2d at 1210.) The only concern on review is whether the trial court’s decision constitutes an abuse of discretion. (Darnell, 144 Ill. App. 3d at 570, 494 N.E.2d at 1210.) A cause should be transferred on forum non conveniens grounds only in exceptional circumstances when it has been shown that the interests of justice require a trial in a more convenient forum. (Torres v. Walsh (1983), 98 Ill. 2d 338, 346, 456 N.E.2d 601, 605.) The case now before us is not such a case. We find no abuse of discretion in the trial court’s denial of defendant’s motion to transfer venue, especially in this case where the situs of the alleged injury is an adjoining county.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE KNECHT

text:
    WINFIELD VILLAGE COOPERATIVE, Plaintiff-Appellant, v. IVAN L. RUIZ et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0576
    Opinion filed March 9, 1989.
    — Rehearing denied May 22, 1989.

      Robert J. Waaler, of Waaler & Evans, P.C., of Champaign, for appellant.
    Frederic M. Grosser, of Grosser & Hays, of Champaign, for appellees.
   JUSTICE KNECHT

delivered the opinion of the court:

On April 29, 1988, the circuit court of Champaign County dismissed a complaint filed by plaintiff Winfield Village Cooperative against defendants Ivan L. Ruiz and Marilyn Ruiz. Plaintiff has appealed. We reverse and remand.

The sole issue presented for review is whether the circuit court has subject-matter jurisdiction over a forcible entry and detainer action against a licensed amateur radio operator based on a claim of radio frequency interference.

Plaintiff operates a cooperative housing development in Savoy, Illinois. On August 21, 1987, defendants signed an occupancy agreement with plaintiff for a dwelling unit. After moving into the dwelling unit, defendant Ivan L. Ruiz, a licensed amateur radio operator, installed and operated a shortwave radio transmitter. The operation of the shortwave radio transmitter allegedly caused radio frequency interference with the consumer electronic equipment (i.e., radios, stereos, telephones, and television sets) of the occupants in the adjacent dwelling units. One of these occupants filed a complaint with the Federal Communications Commission. Upon notification of the complaint, defendant undertook efforts to resolve the radio frequency interference. To date, the efforts of defendants to resolve the radio frequency interference have been unsuccessful.

On March 15, 1988, plaintiff notified defendants that the operation of the shortwave radio transmitter violated the occupancy agreement. Plaintiff advised defendants to cease and desist operation of the shortwave radio transmitter. Plaintiff also advised defendants any further complaints of radio frequency interference would result in legal action to terminate the occupancy agreement and evict them from the dwelling unit. On April 6, 1988, in response to the continued operation of the shortwave radio transmitter, plaintiff served defendants with notice of termination of the occupancy agreement. On April 29, 1988, plaintiff filed a forcible entry and detainer complaint (Ill. Rev. Stat. 1987, ch. 110, par. 9 — 102(a)(2)) to evict defendants from the dwelling unit.

A bench trial was set on July 5, 1988. At the outset of the bench trial, defendants made an oral motion to dismiss the action for lack of subject-matter jurisdiction. Defendants contended Federal law deprived the circuit court of jurisdiction over radio frequency interference incidents. The circuit court allowed the motion and dismissed the action.

The preemption doctrine originates in the supremacy clause of the Federal Constitution. (U.S. Const., art. VI, cl. 2.) Under this doctrine, the court is to examine the Federal statute in question to determine congressional intent to preempt. Congressional intent to preempt is shown in the following circumstances:

“[F]irst, when Congress, in enacting a federal statute, has expressed a clear intent to pre-empt state law [citation]; second, when it is clear, despite the absence of explicit pre-emptive language, that Congress has intended, by legislating comprehensively, to occupy an entire field of regulation and has thereby ‘left no room for the States to supplement’ federal law [citation]; and, finally, when compliance with both state and federal law is impossible [citation], or when the state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’ ” (Capital Cities Cable, Inc. v. Crisp (1984), 467 U.S. 691, 699, 81 L. Ed. 2d 580, 588-89, 104 S. Ct. 2694, 2700.)

Absent these circumstances, congressional intent to preempt is not shown. Guschke v. City of Oklahoma City (10th Cir. 1985), 763 F.2d 379, 383.

The Federal statute in question is the Communications Act of 1934 (Act) and its amendments. (47 U.S.C. §151 et seq. (1982).) The Act empowers the Federal Communications Commission (FCC) with exclusive jurisdiction over the field of radio communications. (47 U.S.C. §151 et seq. (1982); Radio Station WOW, Inc. v. Johnson (1945), 326 U.S. 120, 89 L. Ed. 2092, 65 S. Ct. 1475.) The field of radio communications plainly encompasses the technical matter of radio frequency interference. (See Head v. New Mexico Board of Examiners in Optometry (1963), 374 U.S. 424, 430 n.6, 10 L. Ed. 2d 983, 988 n.6, 83 S. Ct. 1759, 1763 n.6.) Among its powers, the FCC (1) grants licenses for radio communication (47 U.S.C. §301 (1982)); (2) assigns frequency bands to radio stations (47 U.S.C. §303(c) (1982)); (3) determines the location of radio stations (47 U.S.C. §303(d) (1982)); and (4) regulates the effect of radio apparatus emissions (47 U.S.C. §303(e) (1982)). To carry out its powers, the FCC is authorized to promulgate regulations (1) to limit the interference potential of radio devices (47 U.S.C. §302(a)(l) (1982)); (2) to establish minimum performance standards for home electronic equipment (47 U.S.C. §302(a)(2) (1982)); and (3) to prevent interference between radio stations (47 U.S.C. §303(f) (1982)).

Examination of the Act and its amendments establishes that the FCC does not have exclusive jurisdiction over radio frequency interference incidents. The Act is not designed to resolve the private disputes of its licensees on station operation matters. (Cable Vision, Inc. v. KUTV, Inc. (S.D. Idaho 1962), 211 F. Supp. 47, 57, vacated (9th Cir. 1964), 335 F.2d 348.) This being the case, the State courts retain jurisdiction to resolve the private disputes of licensees even though the disputes may affect a field regulated by the FCC.

Such retention of jurisdiction has been approved by the Supreme Court. In Radio Station WOW, Inc. v. Johnson (1945), 326 U.S. 120, 89 L. Ed. 2092, 65 S. Ct. 1475, the State court set aside a fraudulent transfer of a licensed radio station. The Supreme Court held the Act did not deprive the State court of jurisdiction over the fraud action. The Court stated:

“We have no doubt of the power of the [State] court to adjudicate, and conclusively, the claim of fraud in the transfer of the station ***. *** [W]e find nothing in [the Act] that dislodges the power of the States to deal with fraud merely because licensed facilities are involved.” (Johnson, 326 U.S. at 131, 89 L. Ed. at 2101, 65 S. Ct. at 1481-82.)

In Regents of the University System of Georgia v. Carroll (1950), 338 U.S. 586, 94 L. Ed. 363, 70 S. Ct. 370, the State court enforced a contract repudiated by a licensee to meet the license renewal conditions set by the FCC. The Supreme Court held the Act did not deprive the State court of jurisdiction over the contract action. The Court stated:

“[T]he *** Act does not specifically empower the [FCC] to adjudicate the contractual liability of a licensee for its contracts or to declare a licensee’s contracts unenforceable in the courts ***.
*** We do not read the *** Act to give authority to the [FCC] to determine the validity of contracts between licensees and others.” Carroll, 338 U.S. at 600, 602, 94 L. Ed. at 374, 375-76, 70 S. Ct. at 378, 379.

In this case of first impression, the dispute is a breach of contract action between plaintiff landlord and tenant defendants based on a claim of radio frequency interference. Plaintiff contends the operation of the shortwave radio transmitter by defendants violates the use restriction on the dwelling unit. The use restriction provides a tenant is not to commit or permit any interference with the rights of the other tenants to be free from unreasonable nuisance. Since the defendants voluntarily signed the occupancy agreement, they are charged with full knowledge of the restrictions on the use of the dwelling unit.

Resolution of the dispute will not involve State regulation over the field of radio communications. Radio communications are incidentally implicated in that radio frequency interference is alleged as the breach of the occupancy agreement. In all other respects, the dispute implicatés only the State laws of contracts and landlord-tenant relations. Since the dispute is private in nature, the circuit court should have retained jurisdiction over its resolution.

The judgment of the circuit court of Champaign County dismissing the action is reversed, and the action is remanded with directions for a trial on the merits.

Reversed and remanded with directions.

McCULLOUGH, P.J., and LUND, J., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MYRON L. BARBER, Defendant-Appellant.
    Fourth District
    No. 4—88—0518
    Opinion filed April 28, 1989.
    — Rehearing denied May 23, 1989.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

After a bench trial, defendant was convicted of unlawful use of weapons by a felon (Ill. Rev. Stat. 1987, ch. 38, par. 24 — 1.1(a)) and, subsequently, was sentenced to three years’ imprisonment (Ill. Rev. Stat. 1987, ch. 38, pars. 24 — 1.1(d), 1005 — 8—1(a)(6)). Defendant appeals arguing the trial court erred in denying his motion to suppress.

We affirm.

The motion alleged the police without probable cause or consent searched defendant’s clothing and as a result arrested him. On January 11, 1988, police officers were dispatched to a residence in Springfield. Several persons had called the police reporting people on the porch had been firing a weapon and had reentered the house. At the suppression hearing, defendant testified that he had been visiting the house on January 11, 1988. The house belonged to Karen Eubanks. The police arrived at about 4:05 p.m., talked to Eubanks, then searched defendant. Prior to the search, he was sitting at a coffee table in the living room eating chicken. The police did not have a warrant for his arrest; however, after discovering an ammunition clip loaded with .45 caliber ammunition in his pocket, the police arrested him.

On cross-examination, defendant stated he was standing by the door when the police arrived. He listened to the police questioning Eubanks. He sat down when police officers walked in. Eubanks did not give police permission to search the house. As a police officer started to talk to him, he stood up. The ammunition clip was two inches wide and four inches long.

Springfield police officer Randy Wilson stated that he knocked on the front door and received permission to enter. He saw defendant seated at the dining room table, eating chicken. He also saw David Williams and Bessie Davis. All denied any knowledge of shots being fired from the residence. Defendant stated his name was Calvin Gino. Officer Edward Flesch, who was on the front porch, told the officers inside the house that he had found two .45 caliber shell casings on the porch. During questioning, defendant stood up and started to walk away from Wilson, who noticed a bulge in defendant’s right rear pocket. Wilson was concerned about his safety and decided to search defendant.

Wilson stated no one was arrested prior to the search, he did not have a warrant for defendant’s arrest, did not know the shell casings came from defendant personally, and suspected the presence of a weapon in the house but had no actual knowledge that one was there. He learned after the search that defendant had given him a false name. Wilson admitted his police report did not mention the bulge in defendant’s pocket.

Other police officers, who were present, corroborated Wilson’s testimony. The trial court denied the motion to suppress the ammunition clip.

The police officers’ trial testimonies were consistent with their testimonies at the suppression hearing. Additionally, Wilson testified defendant stated Eubanks fired a .45 caliber automatic at a tire on the Williams vehicle. Defendant denied firing the weapon. Defendant had placed the ammunition clip in his pocket after he had found it in Eubanks’ vehicle.

The State introduced a certified copy of defendant’s prior felony conviction.

Defendant argues his constitutional rights were violated when Officer Wilson conducted a search for weapons absent a warrant, consent, or probable cause to believe defendant was involved in the commission of an offense. Defendant contends Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, is inapplicable in the instant situation. Defendant maintains protective searches may only occur in public places and not in private residences. Secondly, defendant argues no probable cause existed to arrest him prior to the search.

A trial court’s determination on a motion to suppress will only be overturned where it is contrary to the manifest weight of the evidence. (People v. Galvin (1989), 127 Ill. 2d 153.) Although the factual situation in Terry involved a protective search in a public setting, the limited question before the court was whether it was always unreasonable for police officers to seize a person and subject him to a limited search for weapons absent probable cause to arrest. (Terry, 392 U.S. at 15, 20 L. Ed. 2d at 902-03, 88 S. Ct. at 1877.) The Terry Court noted the great need for law enforcement officers to protect themselves from violence in situations where they lacked probable cause for an arrest. The Court also noted that the fourth amendment protected persons and a balance needed to be reached between the need to protect the officer in an investigatory setting and the need to protect the person’s fourth amendment rights.

In its analysis, the Court determined the circumstances under which the fourth amendment would permit the stopping for investigatory purposes of a person. The Court then determined when a permissible protective search could occur once the officer was investigating suspicious circumstances. The Court concluded that when a reasonably prudent man in the circumstances presented to the officer would believe his safety or the safety of others was in danger, a limited protective search for weapons was permissible. The Court stressed that an articulable set of reasons for the belief must exist. The officer could not justify the search based upon a hunch. The Court stated:

“[Wjhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” Terry, 392 U.S. at 30, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884-85.

See also Galvin, 127 Ill. 2d 153.

We find the location of the protective search is not the controlling factor in determining its constitutional validity. In People v. Williams (1976), 37 Ill. App. 3d 151, 345 N.E.2d 705, the court denied defendant’s motion to suppress a weapon. Two witnesses had identified defendant as being a person seen in the vicinity of a shooting. Police officers stopped defendant, frisked him for weapons, and talked to him. Subsequently, the officers went with defendant to his room. Defendant's roommate gave the police permission to search the room. After the officers discovered literature on a pistol, defendant indicated it belonged to him. The officers then frisked defendant and they discovered a loaded weapon. The court held that after police officers discovered the literature and heard the defendant say the weapon was his, Terry authorized an additional search of the defendant.

Similarly, the circumstances here could lead the officers to reasonably conclude they were in danger. The officers were called to the residence to investigate gunshots; they received permission to enter the house; shells were discovered on the front porch of the house; the officers knew persons involved in shooting the weapon had reentered the house; after the officers were invited into the home, they discovered four persons present who denied any knowledge of the shooting; and defendant, who started to walk away from the officer during questioning, had a suspicious bulge in his pocket. The factors present here were sufficient to authorize the limited search which occurred. The trial court did not err in denying the motion to suppress. Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; Williams, 37 Ill. App. 3d 151, 345 N.E.2d 705; see also United States v. Mack (W.D. Penn. 1976), 421 F. Supp. 561, aff’d (1978), 568 F.2d 771.

For the above reasons, we affirm the trial court.

Affirmed.

LUND and GREEN, JJ., concur.


author: JUSTICE SPITZ

text:
    RONNING ENGINEERING COMPANY, INC., Plaintiff-Appellant, v. ADAMS PRIDE ALFALFA CORPORATION et al., Defendants (River Forest State Bank and Trust Company, as trustee, et al., Defendants-Appellees).
    Fourth District
    No. 4—88—0707
    Opinion filed April 13, 1989.

      William M. McCleery, Jr., of Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy, for appellant.
    James L. Palmer, of Scholz, Staff & Palmer, of Quincy, for appellee River Forest State Bank and Trust Company.
    James L. Palmer, of Scholz, Staff & Palmer, of Quincy, and Robert B. Oxtoby, of Van Meter, Oxtoby & Funk, of Springfield, for appellee Illinois National Bank of Springfield.
   JUSTICE SPITZ

delivered the opinion of the court:

Plaintiff Ronning Engineering Company, Inc., filed a complaint in the circuit court of Adams County, to foreclose a mechanics’ lien and to obtain a money judgment for services rendered, against defendants Adams Pride Alfalfa Corporation (Adams Pride), River Forest State Bank and Trust Company (River Forest), Illinois National Bank of Springfield (INB), the County of Adams, Continental Cement Company (Continental Cement), and unknown owners. Motions to dismiss were subsequently filed by several of the defendants. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619.) The trial court dismissed the complaint after a hearing and granted plaintiff leave to amend.

Plaintiff then filed a two-count amended complaint against the aforementioned defendants on July 15, 1988. Count I of the complaint sought to foreclose a mechanics’ lien against the defendants. Count I alleged the following. The plaintiff was a corporation located in Overland Park, Kansas, engaged in the business of providing professional engineering services. Defendant Adams Pride was the owner of certain real estate in Adams County, Illinois. On or about July 1, 1986, the plaintiff entered into a verbal contract with Adams Pride to furnish professional engineering services in connection with the construction of a manufacturing facility for Adams Pride on the Adams County real estate. Pursuant to the verbal contract, Adams Pride agreed to pay the plaintiff for services rendered. On or about August 12, 1987, the plaintiff completed all that was required to be done under the verbal contract, at which time Adams Pride owed the plaintiff $25,749.40 for plaintiff’s services.

Count I further alleged that the plaintiff had frequently demanded that Adams Pride pay the balance due but that it refused to do so and therefore the plaintiff filed a claim for mechanics’ lien against Adams Pride on November 30, 1987. Count I also alleged that Adams County, River Forest, and INB claimed an interest in the above real estate pursuant to a mortgage and security agreement dated June 1, 1986, and filed July 1, 1986. Further, the real estate was subject to an assignment of rents and leases entered into by Adams Pride, Adams County, River Forest, and INB, which was dated June 1, 1986, and filed July 1, 1986. Finally, Continental Cement claimed an interest in the real estate by virtue of a mechanics’ lien filed February 7, 1987, and amended February 27,1987.

Count II of the complaint sought the entry of a money judgment for the amount allegedly due and owing for services rendered by the plaintiff under the aforementioned verbal contract.

Attached to the complaint was plaintiff’s claim for a mechanics’ lien against Adams Pride. The claim for lien contained a description of the tract of land in question and the balance due after allowing all credits. The claim for lien also stated:

“That on or about September 20, 1985 [the plaintiff] made and entered into a written contract with said Owner to furnish professional engineering services for a feasibility study for an alfalfa processing plant based on the use of the owner’s natural gas resources. A copy of the contract is attached hereto and made a part hereof. The owner requested continuing professional engineering services on the same terms to design a manufacturing facility on said real estate.
That on or about August 12, 1987, [the plaintiff] completed all that was required to be done by it under said contract and the continued professional services.”

Attached thereto was a “proposal” by the plaintiff to perform services. The proposal was dated September 4, 1985, and was directed to “L. & A. Energy, Inc. — Attn: Mr. Tom Logan — Adams County Joint Venture.” The document indicated, inter alia, that the plaintiff would accomplish a feasibility study for an alfalfa processing plant within 30 days of the receipt of a purchase order and downpayment. The document further stated, “Price F.O.B. Manufacturer: Not to Exceed $5,000.00 plus travel expenses.” The proposal was accepted and executed by Clement Stone on behalf of Adams County joint venture and Richard L. Ronning on behalf of the plaintiff, on September 11, 1985. On top of Stone’s signature was a stamp bearing the following notation: “received — Sep 20 1985 — Clement Stone Office of the President.” Also attached was a “Fee and Invoice Schedule,” outlining the plaintiff’s charges for consulting and engineering services.

On August 5, 1988, River Forest and INB filed a motion to dismiss or, in the alternative, for judgment on the pleadings on count I of plaintiff’s complaint. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2— 619.) The motion alleged that plaintiff’s claim for mechanics’ lien was defective in that it: (1) failed to make any mention of the verbal contract of July 1, 1986, alleged in plaintiff’s complaint, and (2) referred to and incorporated a written contract dated September 4, 1985. The motion further alleged that the written contract referred to in the mechanics’ lien claim: (1) was not signed by Adams Pride, the alleged owner of the real estate; (2) limited the obligation under the contract to $5,000 plus travel expenses; and (3) involved services which did not come within the meaning of the Mechanics’ Liens Act (Act) (Ill. Rev. Stat. 1987, ch. 82, par. 1 et seq.) and are incapable of being secured by a mechanics’ lien.

After a hearing, the trial court granted the motion to dismiss (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619). In its written order of dismissal, filed August 25, 1988, the trial court found that count I of plaintiff’s complaint was deficient as a matter of law in that it failed to strictly comply with the requirements of section 7 of the Act (Ill. Rev. Stat. 1987, ch. 82, par. 7). The court entered a finding of no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Plaintiff now appeals from the trial court's order of dismissal as to River Forest and INB.

Plaintiff argues on appeal that its claim for a mechanics’ lien substantially complied with all the requirements of section 7 of the Act (Ill. Rev. Stat. 1987, ch. 82, par. 7), and was therefore enforceable against third-party defendants River Forest and INB. Specifically, plaintiff contends that its claim for lien contained a “brief statement of the contract” between the owner and the contractor upon which the lien claim was based, as required by section 7. Plaintiff asserts that the claim for lien contained a description of a written contract entered into on September 20, 1985, by the plaintiff and Adams Pride. Plaintiff acknowledges that this description “contains an error” as the written contract was actually between the plaintiff and Adams County joint venture. Plaintiff argues, however, that the claim for lien identified Adams Pride as the owner and stated that Adams Pride requested continuing professional engineering services from the plaintiff on the same terms as those in the written contract. Plaintiff further argues that the claim for lien stated the plaintiff had completed the work required under the written contract and the continuing professional services and that the amount due by Adams Pride for the services rendered was $25,749.40. Plaintiff concludes that the claim for lien, read as a whole, substantially complied with section 7 of the Act because “in essence” it described a “written contract between [plaintiff] and Adams County Joint Venture for a feasibility study for an alfalfa processing plant, subsequently request [sic] by Adams Pride that [plaintiff] continue to provide professional engineering services to it for the construction and manufacturing facility and the performance of the requested service for which it has not yet been compensated.”

Defendants River Forest and INB argue that plaintiff’s claim for a mechanics’ lien was facially defective because it did not contain a brief statement of the contract as required by section 7 of the Act and thus was unenforceable. Defendants argue that the claim for lien contained material contradictions and was internally inconsistent. In particular, defendants point out that the claim for lien stated that on September 20, 1985, the plaintiff entered into a written contract with Adams Pride, as owner, for a feasibility study. Defendants note, however, that the September 20, 1985, written contract, attached to and incorporated in the claim for lien, was between the plaintiff and Adams County joint venture — not Adams Pride. Defendants also assert that the claim made no mention of a July 1, 1986, verbal contract between plaintiff and Adams Pride which was alleged in plaintiff’s complaint for foreclosure on the mechanics’ lien. Defendants conclude that the plaintiff relied upon the wrong contract to support its lien.

Motions to dismiss a pleading admit facts well pleaded but not conclusions unsupported by allegations of specific facts upon which such conclusions rest. (Burke v. Sky Climber, Inc. (1974), 57 Ill. 2d 542, 316 N.E.2d 516; People ex rel. Lee v. Kenroy, Inc. (1977), 54 Ill. App. 3d 688, 370 N.E.2d 78.) In determining the propriety of a dismissal of a complaint or portions thereof based upon a motion to dismiss, the appellate court is concerned only with questions of law presented by the pleadings. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill. 2d 552, 328 N.E.2d 538; Circle Security Agency, Inc. v. Ross (1981), 99 Ill. App. 3d 1111, 425 N.E.2d 1283.

Count I of plaintiffs amended complaint, which was dismissed by the trial court on motion by the defendants, sought to foreclose plaintiffs mechanics’ lien. This appeal concerns the sufficiency of the plaintiff’s “statement of the contract” contained in plaintiff’s claim for a mechanics’ lien. Section 1 of the Act provides that any person who, under a contract with the owner of a lot or tract of land, furnishes labor, materials, or fixtures for the construction, alteration, or repair of the property “is known under this Act as a contractor, and has a lien upon the whole of such lot or tract of land.” (Ill. Rev. Stat. 1987, ch. 82, par. 1.) This lien attaches as of the date of the contract, but the lien is unenforceable against third parties unless the contractor strictly complies with section 7, which provides in part:

“No contractor shall be allowed to enforce such lien against or to the prejudice of any other creditor or incumbrancer or purchaser, unless within 4 months after completion *** he or she shall either bring an action to enforce his or her lien therefor or shall file in the office of the recorder of the county in which the building, erection or other improvement to be charged with the lien is situated, a claim for lien, verified by the affidavit of himself or herself, or his or her agent or employee, which shall consist of a brief statement of the contract, the balance due after allowing all credits, and a sufficiently correct description of the lot, lots or tracts of land to identify the same." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 82, par. 7.

See also Steinberg v. Chicago Title & Trust Co. (1986), 142 Ill. App. 3d 601, 491 N.E.2d 1294.

As mechanics’ liens were not recognized by the common law or in equity, but exist only by virtue of statutes creating them and providing a method for their enforcement, those statutes must be strictly construed with reference to the requirements upon which the right depends. (First Federal Savings & Loan Association v. Connelly (1983), 97 Ill. 2d 242, 454 N.E.2d 314; Schmidt v. Anderson (1911), 253 Ill. 29, 97 N.E. 291.) A mechanics’ lien is valid only if each of the statutory requirements is scrupulously observed. (Connelly, 97 Ill. 2d 242, 454 N.E.2d 314.) The burden of proving that each requisite has been satisfied is on the party seeking to enforce the lien. (Edward Electric Co. v. Automation, Inc. (1987), 164 Ill. App. 3d 547, 518 N.E.2d 172.) Once the contractor has complied with the statutory prerequisites, the Act is to be liberally construed in order to carry out its remedial purpose. (Ill. Rev. Stat. 1987, ch. 82, par. 39.) The supreme court has recognized that the purpose of the Act is to permit a lien upon premises where a benefit has been received by the owner and where the value or condition of the property has been increased or improved by reason of the furnishing of such labor and materials. Connelly, 97 Ill. 2d 242, 454 N.E.2d 314; Colp v. First Baptist Church (1930), 341 Ill. 73, 173 N.E. 67.

An examination of the claim for mechanics’ lien in the case at bar clearly reveals that it does not comply with the requirements of section 7. The claim for lien described the tract of land covered in the claim, recited the balance due on the contract, and was verified. However, it did not contain a sufficient “brief statement of the contract.” (Ill. Rev. Stat. 1987, ch. 82, par. 7.) Indeed, plaintiff’s claim for lien described the wrong contract. Count I of plaintiff’s complaint alleged that the claim for mechanics’ lien was based upon a verbal contract entered into on July 1, 1986, between the plaintiff and Adams Pride. However, the mechanics’ lien claim described the contract forming its basis as a written contract entered into on September 20, 1985, between the plaintiff and the owner, Adams Pride. Attached to and incorporated in the claim for lien was a written contract, dated September 20, 1985, entered into between the plaintiff and Adams County joint venture — not Adams Pride. In view of the foregoing, it cannot be said that the plaintiff’s mechanics’ lien claim contained a sufficient statement of the contract forming the basis of the claims. Hence, plaintiff’s mechanics’ lien claim failed to comply with the requirements of section 7 and was therefore unenforceable. Accordingly, the trial court properly dismissed count I of plaintiff’s complaint which sought to foreclose the mechanics’ lien.

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

Affirmed.

LUND and GREEN, JJ., concur.