author: JUSTICE CAMPBELL

text:
    CYNTHIA GLASSIE, Plaintiff-Appellant, v. PAPERGRAPHICS, INC., Defendant-Appellee and Third-Party Plaintiff-Appellee (Kathy Kitzing et al., Third-Party Defendants-Appellees).
    First District (1st Division)
    No. 1 — 91—2366
    Opinion filed June 28, 1993.

      Leo M. Bleiman & Associates, of Chicago (Laura Monahan-Jarvis, of counsel), for appellant.
    Condon & Cook, of Chicago (Paul S. Festenstein and Monica E. Rackauskas, of counsel), for appellee Papergraphics, Inc.
    Rooks, Pitts & Poust, of Chicago (Stephen E. Sward, of counsel), for appellee Kathy Kitzing.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff Cynthia Glassie appeals an order of the circuit court of Cook County granting motions to dismiss plaintiff’s negligence suit that were filed by defendant Papergraphics, Inc., and third-party defendants Kathy Kitzing and Julieanna Abelseth.

The record on appeal indicates the following facts. On May 15, 1989, plaintiff filed a complaint against Papergraphics. The complaint alleges that on December 24, 1987, Glassie attended a holiday party on Papergraphics’ premises. It is alleged that food was being prepared on portable burners located on a table at the party. Plaintiff was injured when one of the portable stoves erupted flames that burned plaintiff. Plaintiff alleged defendant was negligent in cooking with devices that use highly flammable liquid fuel, failing to warn or to mark the area around the stoves and cooking in an area where guests could be exposed to the flames. On September 18, 1990, Papergraphics filed a third-party complaint for contribution against Kitzing as owner of the stove and Abelseth as the person who poured fuel into the stove while attempting to ignite the stove.

Papergraphics, Kitzing and Abelseth filed motions to dismiss the complaints against them, pursuant to sections 2 — 406 and 2— 619(a)(9) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 406, 2 — 619(a)(9)). These parties contended that plaintiff’s exclusive remedy was to pursue a claim under the Workers’ Compensation Act (Act) (see Ill. Rev. Stat. 1985, ch. 48, pars. 138.5(a), 138.11).

Kitzing and Abelseth submitted substantially similar affidavits indicating that plaintiff, Kitzing and Abelseth were all employed by Papergraphics on December 24, 1987. Plaintiff, Kitzing and Abelseth attended a holiday party on that date, which was also attended by Mark Audino, president of Papergraphics. All company employees had been invited to the party. Plaintiff, Kitzing, Abelseth and Audino sat at the same table at the party. At the time of plaintiff’s injury, Audino was holding a burner to a fondue pot and Abelseth was pouring alcohol into the burner when it ignited, sending a ball of flame at plaintiff. According to Kitzing and Abelseth, the party began at about 11 a.m. on company time and company premises; both were paid for time spent on the premises and work completed that day.

Glassie submitted a counteraffidavit which adds that the party was planned by plaintiff, Kitzing and Abelseth. Glassie also states that before the party, Audino told the Papergraphics employees that they were relieved of their duties for the day and were free to leave.

Papergraphics did not submit affidavits in support of its motion to dismiss. However, Audino did answer interrogatories for Paper-graphics. These answers indicate that the party was to start at noon, that attendance was not mandatory and employees were not required to return to work afterwards.

Following a hearing, the trial court granted the motions to dismiss. Plaintiff timely filed a notice of appeal to this court. This court subsequently entered an order directing the parties to submit supplemental memoranda concerning the applicability of section 11 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.11) to this appeal.

The purpose of a section 2 — 619 motion is to provide a mechanism to dispose of issues of law or easily proved issues of fact. (Chicago Steel Rule Die & Fabricators Co. v. Malan Construction Co. (1990), 200 Ill. App. 3d 701, 558 N.E.2d 341; Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 501 N.E.2d 156.) A motion based on section 2 — 619(a)(9) asserts that the motion must be dismissed due to affirmative matters avoiding the legal effect of or defeating the claim. (Ill. Rev. Stat. 1985, ch. 110, par. 2— 619(a)(9).) However, in deciding the merits of the motion, a trial court cannot determine disputed factual issues solely upon affidavits and counteraffidavits. (See Premier Electrical Construction Co. v. La Salle National Bank (1984), 132 Ill. App. 3d 485, 493, 477 N.E.2d 1249, 1255-56.) Moreover, for the purposes of deciding the motion, the well-pleaded facts in plaintiff’s complaint and inferences therefrom are generally accepted as true. See Ayala v. Fox (1990), 206 Ill. App. 3d 538, 540, 564 N.E.2d 920, 921.

The issue on appeal is whether plaintiff may sue in negligence or whether she is limited to the remedies of the Workers’ Compensation Act. The exclusivity provisions of the Act may bar an employee from bringing a common law claim against his or her employer, unless the employee proves that: (1) the injury was not accidental; (2) the injury did not arise from his or her employment; (3) the injury was not received during the course of employment; or (4) the injury was not compensable under the statute. (Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 463, 564 N.E.2d 1222, 1226.) The parties dispute the second and third possibilities.

This court directed the parties to submit supplemental memoranda focusing on the applicability of section 11 of the. Act, which provides in relevant part as follows:

“Accidental injuries incurred while participating in voluntary recreational programs including but not limited to athletic events, parties and picnics do not arise out of and in the course of the employment even though the employer pays some or all of the cost thereof. This exclusion shall not apply in the event that the injured employee was ordered or assigned by his employer to participate in the program.” Ill. Rev. Stat. 1985, ch. 48, par. 138.11.

The defendants maintain in their memoranda that plaintiff has waived her ability to raise section 11 of the Act. However, a reviewing court may take judicial notice of a State statute, even if argument thereon could be deemed waived. (See American Federation of State, County & Municipal Employees, Council 31, A F L-CIO v. County of Cook (1991), 145 Ill. 2d 475, 480, 584 N.E.2d 116, 118 (hereinafter AFSCME).) The waiver rule is an admonition to the parties, rather than a limitation on the reviewing court, which has a responsibility for just results within a sound and uniform body of precedent. (AFSCME, 145 Ill. 2d at 480, 584 N.E.2d at 119.) Consequently, we turn to consider the effect of section 11 upon this appeal.

In cases decided upon facts occurring after the amendment of section 11 in 1980, the principal issues have been whether the activity was voluntary and whether the activity was a “recreational program.” (Kozak v. Industrial Comm’n (1991), 219 Ill. App. 3d 629, 579 N.E.2d 921; Cary Fire Protection District v. Industrial Comm’n (1991), 211 Ill. App. 3d 20, 569 N.E.2d 1338.) In their memoranda, defendants suggest that the party at issue here is not a “recreational program” within the scope of section 11 of the Act.

The record in this case indicates that plaintiff was injured at a party to which all Papergraphics employees were invited. Classic's affidavit indicates that Audino told the Papergraphics employees that they were relieved of their duties for the day and were free to leave. Papergraphics’ answers to interrogatories indicate that employees were- not required to attend the party. The record therefore indicates that the party at issue here was a “voluntary recreational program” within the meaning of section 11 of the Act.

Defendants argue that we should interpret the amendment of section 11 in light of the statements made during the legislative debate thereof. (See Morel v. Coronet Insurance Co. (1987), 117 Ill. 2d 18, 24, 509 N.E.2d 996, 999.) Defendants claim that these statements support their position. Defendants’ argument overlooks the rule that the best indication of legislative intent is the language of the statute itself. (See Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 441-42, 593 N.E.2d 522, 527.) The language of section 11 expressly indicates that a party falls within the scope of the term “voluntary recreational program.” Moreover, we note that the statements identified by defendants do not contradict our conclusion here.

Aside from section 11, defendants’ initial briefs cite case law in support of their position, but only Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005, involved an injury occurring after the amendment of section 11 of the Act quoted above. We agree with Papergraphics’ contention at oral argument that Orsini is not factually on point.

In sum, we conclude that the motions to dismiss should not have been granted. For all of the aforementioned reasons, we reverse the judgment of the circuit court of Cook County and remand the case for proceedings consistent with this opinion.

Reversed and remanded.

MANNING, P.J., and BUCKLEY, J., concur.


source: Caselaw Access Project

author: JUSTICE GIANNIS

license: Public Domain

text:
    RICHARD BUROFF, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF CHICAGO RIDGE et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 92—0566
    Opinion filed June 30, 1993.
    Rehearing denied August 6, 1993.
    Flood, Bredemann & Evans, of Park Ridge (James J. Flood, of counsel), for appellant.

      Thomas F. McGuire & Associates, Ltd., of Long Grove, for appellees.
   JUSTICE GIANNIS

delivered the opinion of the court:

Plaintiff, Richard Buroff, appeals from an order of the circuit court dismissing his complaint pursuant to sections 2 — 619(a)(1) and (a)(5) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 619(a)(1), (a)(5)). The circuit court determined that plaintiff’s complaint, which sought review of an order of the Board of Fire and Police Commissioners of the Village of Chicago Ridge (the Board), had not been timely filed under section 3 — 103 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 103). We have jurisdiction under Supreme Court Rules 301 and 303. 134 Ill. 2d Rules 301, 303.

On March 26, 1991, the Board entered findings and a decision on a three-count complaint filed against plaintiff. The counts charged plaintiff with violating certain rules and regulations of the Chicago Ridge police department. The Board found him guilty of all counts and terminated his employment.

On April 24, 1991, plaintiff filed a motion with the Board for reconsideration of its decision. A copy of this motion has not been included as part of the record on appeal, but there is no dispute that such a motion was filed.

Two days later, on April 26, 1991, plaintiff filed a complaint for administrative review in the circuit court of Cook County (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 103). In paragraph 8 of this complaint, plaintiff represented that “on April 24, 1991, the plaintiff petitioned the defendant for a rehearing, which petition was denied by said Board and plaintiff has therefore exhausted every administrative remedy available to him.” In fact, the Board had not yet acted on plaintiff’s rehearing petition. Copies of the summons and complaint were served upon defendants. Defendants did not, however, file an appearance in the circuit court.

On May 10, 1991, the Board held a hearing on the motion for reconsideration and the case was taken under advisement. On that same day, plaintiff filed a document in the circuit court entitled “Agreed Order,” which represented that plaintiff had given proper notice and the court was advised of an agreement and stipulation of the parties. The order stated that the case was dismissed without prejudice pursuant to section 2 — 1009 of the Code of Civil Procedure with leave to refile pursuant to section 13 — 217 of the Code. At this time, however, there was still no opposing attorney of record, nor does the record contain any evidence of an agreement between the parties.

On May 14, 1991, the Board issued its written finding and decision denying plaintiff’s motion for reconsideration. On June 4, 1991, plaintiff filed a motion to vacate the voluntary dismissal which stated “that certain proceedings that had been pending before the Board of Police and Fire Commissioners have been completed on May 14, 1991, and all administrative relief in this matter has been exhausted.” There is no indication in the record that notice was ever served upon the defendants. The court vacated the order of voluntary dismissal on June 17, 1991.

On July 17, 1991, the Board filed a motion to dismiss based upon sections 2 — 619(a)(1) and (a)(5) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 619(a)(1), (a)(5)). In support of the motion, the Board argued that the complaint filed by plaintiff on April 26, 1991, was premature because the petition for rehearing was still pending with the Board and that it was not until plaintiff’s petition was denied on May 14, 1991, that the matter became a final and appealable order. According to the Board, plaintiff had 35 days from May 14, 1991, until June 18, 1991, to file his complaint with the circuit court for administrative review. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 103.) The Board notes that the 35-day period is jurisdictional in nature (Condell Hospital v. Health Facilities Planning Board (1987), 161 Ill. App. 3d 907, 936), and argues that plaintiff’s act of vacating the voluntary dismissal within this 35-day period was insufficient to confer jurisdiction in the circuit court.

Plaintiff responded that it relied in good faith upon the agreement of defense counsel that a voluntary dismissal could be entered once it was determined that the complaint was prematurely filed. Plaintiff suggests that since defendants never objected to vacating the voluntary dismissal and reinstating the complaint, they should be estopped from moving to dismiss under section 2 — 619. Plaintiff states defendants suffered no prejudice by being ordered to answer the complaint.

Section 3 — 103 of the Code states in pertinent part: “Every action to review a final administrative decision shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 103.) The issue before us is whether plaintiff’s act of vacating a voluntary dismissal of his prematurely filed complaint within 35 days of the Board’s final order is sufficient to confer jurisdiction in the circuit court under section 3 — 103.

' Plaintiff states that he was diligent in filing both his complaint and issuing summons within 35 days of receipt of the Board’s findings and decision. He claims that he filed his motion for reconsideration before the Board, without access to the local rules of procedure and in an attempt to satisfy the language of the statute (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101). Plaintiff represented that after discussion with the Board’s attorney, George Witous, both parties agreed to voluntarily dismiss plaintiff’s complaint without prejudice pursuant to section 2 — 1009 of the Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1009.) Immediately after the Board denied his petition for rehearing, plaintiff filed a motion to vacate the voluntary dismissal and reinstate the case, which was granted 14 days later.

Defendants contend that George Witous, the Board’s attorney, merely informed plaintiff’s counsel of the administrative review options prior to the filing of plaintiff’s motion for reconsideration. It is defendants’ position that they did nothing to suggest or advise to plaintiff’s counsel when or how to proceed with his case.

We begin by noting that judicial review can only be undertaken where there is a final agency determination. (Jagielnik v. Board of Trustees of the Police Pension Fund (1991), 211 Ill. App. 3d 26, 32.) Such a determination is made following “some sort of adversarial process involving the parties affected, where a hearing on controverted facts is held, and ultimately a disposition is rendered by an impartial officer.” (Taylor v. State Universities Retirement System (1987), 159 Ill. App. 3d 372, 376.) In the absence of such a final administrative decision, the circuit court lacks jurisdiction to consider the matter. Ill. Rev. Stat. 1991, ch. 110, par. 3 — 102; Bi-State Development Agency v. Department of Revenue (1990), 205 Ill. App. 3d 668.

Section 3 — 101 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101) makes clear that an agency decision is not final and appeal-able during the time the agency considers a petition for rehearing:

“In all cases in which a statute or a rule of the administrative agency requires or permits an application for a rehearing or other method of administrative review to be filed within a specified time *** and an application for such rehearing or review is made, no administrative decision of such agency shall be final as to the party applying therefor until such rehearing or review is had or denied.”

In this case, plaintiff chose to pursue his post-decision rights under section G — 13 of the Board’s rules:

“Any defendant who has been found guilty of charges before the Commission may, within thirty (30) days of such finding petition the Commission in writing for a rehearing petition for such rehearing shall state fully on what grounds a rehearing is requested. The Commission may grant a new hearing if in their [sic] opinion the facts presented justify such action. If the petition for such rehearing is denied by the Commission, the order, finding or decision shall stand.”

As noted in Oliver v. Civil Service Comm’n (1967), 80 Ill. App. 2d 329, 333-34:

“Judicial review of an administrative decision may not be had until the aggrieved party has exhausted his administrative remedies. The Administrative Review Act provides that if an agency provides a method for rehearing a case, either by an agency rule or by a statutory provision, then an agency decision is not an appealable ‘administrative decision’ until the aggrieved party requests a petition and his petition is denied. The statute further provides that in the event an agency does not have a provision for rehearing, the final order becomes ripe for review when it is rendered by the agency.”

In this case, the Board had a rule pertaining to rehearing. Thus, once plaintiff chose to file a petition for rehearing, he was required to wait until the petition had been decided.

In International Harvester v. Industrial Comm’n (1978), 71 Ill. 2d 180, under similar facts, the supreme court held that the premature filing of a complaint seeking administrative review did not confer jurisdiction on the circuit court. The supreme court found an employer’s petition to correct errors following a decision by the Industrial Commission prevented the Commission’s decision from becoming final and appealable. The employer’s filing of a writ of certiorari with the circuit court during the time its petition with the Commission was still pending was therefore treated by the court as a nullity. See also Kelly v. Industrial Comm’n (1990), 203 Ill. App. 3d 626.

Here, as in International Harvester, once plaintiff chose to file a post-decision petition, it became incumbent upon him to wait for the Board’s final administrative determination before seeking review in the circuit court. It is undisputed that no complaint was filed nor was summons issued within the 35 days following the Board’s final decision. Indeed, even if it is assumed that plaintiff’s complaint had not been prematurely filed and that plaintiff had relied upon the “Agreed Order” granting him leave to refile his complaint pursuant to section 13 — 217 of the Code, this section required plaintiff to “commence a new action.” (See Ill. Rev. Stat. 1991, ch. 110, par. 13 — 217.) Plaintiff was therefore on notice that he was required to refile and issue a new summons, which he did not do. Cf. Behling v. Department of Labor (1988), 171 Ill. App. 3d 804 (plaintiff properly permitted to refile timely administrative review action under section 13 — 217 following dismissal).

In Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, the supreme court recognized that the 35-day requirement could be relaxed where a party makes a good-faith effort to issue summons within the statutory period, but due to some circumstance beyond his control the summons is not issued. (Lockett, 133 Ill. 2d at 355. See also Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 402-04; City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 382.) Plaintiff urges this court to relax the 35-day filing period where he has shown a good-faith effort to comply with the requirements of the Code. He specifically claims that relaxation of the 35-day period is appropriate where he was unfairly prejudiced by representations of the Board’s attorney that the dismissal of the original complaint could be later reinstated.

In the present case, however, we see nothing in the record which would have prevented plaintiff from filing a timely complaint and issuing a new summons within the statutory period. Nothing in the record indicates that the Board’s attorney did anything but advise plaintiff that he could not pursue his case in two forums simultaneously. Accordingly, we find that the trial court correctly dismissed plaintiff’s complaint for administrative review.

For the foregoing reasons, the order of the circuit court is affirmed.

Affirmed.

McNAMARA, P.J., and EGAN, J., concur.


author: JUSTICE RIZZI PRESIDING JUSTICE TULLY,

text:
    JOHNNY J. O’NEAL, Plaintiff-Appellant, v. ROBERT SHAW et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1 — 91—2612
    Opinion filed June 23, 1993.
    Rehearing denied August 11, 1993.
    TULLY, P.J., dissenting.
    Thomas E. Johnson, of Johnson, Schaaf, Jones & Snelling, of Chicago, for appellant.
    Michael E. Lavelle and Robert M. Motta, both of Lavelle, Holden & Juneau, Ltd., of Oak Park, for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff," Johnny J. O’Neal, brought this election contest action in the circuit court against defendants Robert Shaw, the Chicago Board of Election Commissioners and the Canvassing Board for the supplementary aldermanic election held on April 2, 1991, seeking a recount of the ballots cast in the supplementary election for the office of alderman from the ninth ward of the City of Chicago (Ninth Ward). Plaintiff subsequently filed a motion for leave to file an amended complaint, but the motion was denied due to plaintiff’s failure to comply with statutory notice requirements. Following a hearing on Shaw’s motion to strike and dismiss plaintiff’s complaint brought pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2-615, 2-619 (now 735 ILCS 5/2-615, 2-619 (West 1992))), the trial court entered an order dismissing plaintiff’s complaint as insufficient in law due to lack of required specificity. Thereafter, the trial court denied plaintiff’s further motion for leave to file an amended complaint on the grounds that it lacked jurisdiction to consider the matter. We reverse and remand.

Plaintiff and Shaw were candidates for election to the office of alderman from the Ninth Ward in the supplementary aldermanic election held on April 2, 1991. (See Ill. Rev. Stat. 1989, ch. 24, par. 21 — 26 (now 65 ILCS 20/21 — 26 (West 1992)).) The Canvassing Board proclamation revealed that Shaw received 4,904 (50.2%) of the ballots cast in the election while plaintiff received 4,864 (49.8%). On April 8, 1991, plaintiff filed a verified election contest complaint in the circuit court alleging that he would have been elected alderman from the Ninth Ward if all correct and lawful ballots cast in the supplementary election were properly counted. Later that day, the trial court entered an ex parte order granting plaintiff’s emergency motion for leave to file an amended complaint following the completion of a discovery recount. (See Ill. Rev. Stat. 1989, ch. 46, par. 22-9.1 (now 10 ILCS 5/22-9.1 (West 1992)).) Shaw filed a motion to vacate the April 8, 1991, ex parte order on the grounds that plaintiff failed to comply with statutory notice requirements. After initially denying the motion, the trial court reconsidered its ruling and entered an order granting Shaw’s motion to vacate the April 8, 1991, ex parte order.

On May 10, 1991, Shaw filed a motion to strike and dismiss plaintiff’s complaint as insufficient in law because certain allegations contained in the complaint did not state with specificity the grounds on which the election was being contested. Following a hearing, the trial court ruled that plaintiff’s complaint was insufficient in law and entered an order dismissing the complaint. Thereafter, plaintiff sought leave to file an amended complaint. The trial court ruled, however, that it lacked jurisdiction to consider the matter after plaintiff’s initial complaint was dismissed. This appeal followed.

Plaintiff contends that the trial court erred when it dismissed his complaint as insufficient in law. Section 21 — 27 of the Revised Cities & Villages Act of 1941 provides in relevant part:

“Any candidate whose name appears on the ballots used in any ward of the city [of Chicago] at any election for alderman, may contest the election of the candidate who appears to be elected from such ward on the face of the returns, * * * by filing within 5 days after such election with the Clerk of the Circuit Court of Cook County, a complaint in writing, verified by the candidate making the contest, setting forth the grounds of the contest. *** In case the court shall decide that the complaint is insufficient in law, *** the complaint shall be dismissed.” Ill. Rev. Stat. 1989, ch. 24, par. 21 — 27.

A court having jurisdiction to consider an election contest complaint shall grant a recount where, based on the facts alleged in such complaint, there appears a reasonable likelihood that a recount will change the result of the election. (Ill. Rev. Stat. 1989, ch. 46, par. 23-23.2 (now 10 ILCS 5/23-23.2 (West 1992)).) If the court determines that the complaint is insufficient in law, the mandatory language of the statute requires the court to dismiss the complaint, thus terminating the jurisdiction of the circuit court. See Young v. Washington (1984), 127 Ill. App. 3d 1094, 1097, 470 N.E.2d 14, 16.

Plaintiff argues that the well-pled allegations contained in his complaint, if proven, would place a sufficient number of votes in issue to demonstrate a reasonable likelihood that a recount will change the result of the election. When considering the legal sufficiency of an election contest complaint, the court must determine whether the complaint contains specific factual allegations which, if proven, would establish fraud or a violation of the Election Code, the number of ballots affected and the precinct where the ballots were counted, and that the result of the election would have been different had the improper ballots not been counted. (See In re Contest of the Election for the Offices of Governor & Lieutenant Governor Held at the General Election on November 2, 1982 (1983), 93 Ill. 2d 463, 480, 444 N.E.2d 170, 177; Ross v. Kozubowski (1989), 182 Ill. App. 3d 687, 692, 538 N.E.2d 623, 627.) Where fraud is alleged, the complaint must contain specific facts from which fraud can be inferred or implied. (Vanderbilt v. Marcin (1970), 127 Ill. App. 2d 192, 198, 262 N.E.2d 42, 45.) Election contest complaints are to be construed liberally with a view toward doing substantial justice. See Goree v. Lavelle (1988), 169 Ill. App. 3d 696, 701, 523 N.E.2d 1078, 1081; Ross v. Kozubowski (1989), 182 Ill. App. 3d 687, 692, 538 N.E.2d 623, 627; Zahray v. Emricson (1962), 25 Ill. 2d 121, 124, 182 N.E.2d 756, 758; Armbrust v. Starkey (1954), 3 Ill. 2d 131, 141, 119 N.E.2d 910, 914-15; Joyce v. Blankenship (1948), 399 Ill. 136,140, 77 N.E.2d 325, 327.

Plaintiff alleges in his complaint that 15 votes should be deducted from Shaw’s vote total because at least 15 ballots cast for Shaw were not properly initialed by an election judge. The Election Code provides that only ballots which have been properly initialed by an election judge shall be counted. (Ill. Rev. Stat. 1989, ch. 46, pars. 17 — 9, 17-16, 24A-10.1, 24A-15.1 (now 10 ILCS 5/17-9, 17-16, 24A-10.1, 24A — 15.1 (West 1992)); Snow v. Natzke (1986), 140 Ill. App. 3d 367, 369, 488 N.E.2d 1077, 1078; but cf. Pullen v. Mulligan (1990), 138 Ill. 2d 21, 54, 561 N.E.2d 585, 599 (uninitialed absentee ballots in primary election may be counted if absentee ballots can be distinguished from in-precinct ballots and initialing requirement does not disparage the integrity of the election).) The following allegations are set forth in plaintiff’s complaint:

“7. In the 1st Precinct of the Ninth Ward, not less than five (5) ballots were counted in the totals for defendant Shaw when these ballots were not properly initialed by the judges and/or defective in that they were defaced with extraneous markings. At least five (5) votes should therefore be deducted from defendant Shaw’s total.
* * *
10. In the 5th Precinct of the Ninth Ward, not less than three (3) ballots were counted in the totals for defendant Shaw where these ballots were not properly initialed by a judge and/ or were defective in that they were defaced with extraneous markings. Defendant Shaw’s total should be reduced by three (3) votes.
***
12. In the 10th Precinct of the Ninth Ward, not less than two (2) ballots were counted in the totals for defendant Shaw where these ballots were not properly initialed by a judge and/ or were defective in that they were defaced with extraneous markings. Defendant Shaw’s vote total should be reduced by two (2) votes.
* * *
15. In the 29th Precinct of the Ninth Ward, at least five (5) votes were counted in the totals for defendant Shaw where the ballots were not properly initialed by a judge and/or were defective in that they were defaced with extraneous markings. Defendant Shaw’s vote total should be reduced by five (5) votes.”

We find that paragraphs 7, 10, 12 and 15 of plaintiff’s complaint contain sufficient factual allegations which, if proven, would establish that Shaw’s vote total should be reduced by 15 votes because 15 ballots in the aforementioned precincts should not have been counted because the ballots failed to comply with the requirements prescribed by sections 17-9, 17-16, 24A-10.1 and/or 24A-15.1 of the Election Code.

Plaintiff further alleges in his complaint that a net total of 21.34 votes should be deducted from Shaw’s margin of victory because the names and addresses of 72 voters do not conform with the names and addresses contained in the official register. The Election Code provides that only persons whose name appears on the official register of voters shall receive a ballot. (Ill. Rev. Stat. 1989, ch. 46, pars. 17 — 9, 18 — 5 (now 10 ILCS 5/17 — 9, 18 — 5 (West 1992)).) The following allegations are set forth in plaintiff’s complaint:

“8. In the 1st Precinct of the Ninth Ward, at least eight (8) voters were unlawfully permitted to vote in that their names and addresses did not conform to the name and address of a voter in the official register of voters or the judges permitted the voters to vote despite not properly completing the Challenged Voter Affidavit, which is Board of Election Form 1. 4.82 votes should be proportionally reduced from defendant Shaw’s vote totals, given the result of the balloting in this precinct. Whereas 3.17 votes should be reduced from plaintiff O’Neal’s vote total.
* * *
11. In the 10th Precinct of the Ninth Ward, at least seven (7) persons were wrongfully permitted to vote in that the name and address on their application for ballot did not conform to the name and address of a voter in the official register of voters or the judges permitted the voter to vote despite not properly completing the Challenged Voter Affidavit, which is Board of Election Form 1. 3.70 votes should be proportionately reduced from defendant Shaw’s vote total, given the result of the balloting in this precinct. 3.29 votes should be reduced from plaintiff O’Neal’s vote total.
* * *
16. In the 29th Precinct of the Ninth Ward, at least thirty (30) voters were unlawfully permitted to cast ballots, in that the name and address indicated on their application for ballot did not conform to the name and address of a voter in the register of voters, or the judges permitted the voter to vote despite not properly completing the challenged voter affidavit, which is Board of Election Form 1. 20.29 votes should be proportionately reduced from defendant Shaw’s vote total, given the results of the balloting in this precinct. 9.71 votes should be reduced from plaintiff O’Neal’s total.
17. In the 41st Precinct of the Ninth Ward, at least seven (7) voters were wrongfully permitted to vote in that the name and address on their application for ballot did not conform to the name and address of a voter in the official register of voters or the judges permitted the voter to vote despite not properly completing the Challenged Voter Affidavit, which is Board of Election Form 1. 4.57 votes should be proportionately reduced from defendant Shaw’s vote total, given the results of the balloting in this precinct. 2.43 votes should be reduced from plaintiff O’Neal’s total.
18. In the 45th Precinct of the Ninth Ward, at least eleven (11) voters were unlawfully permitted to vote in that the name and address on their application for ballot did not conform to the name and address of a voter in the official register of voters or the judges permitted the voters to vote despite not properly completing the Challenged Voter Affidavit, which is Board of Election Form 1. 7.14 votes should be proportionately reduced from defendant Shaw’s vote total, given the result of the balloting in this precinct. 3.86 votes should be reduced from plaintiff O’Neal’s total.
19. In the 50th Precinct of the Ninth Ward, at least nine (9) voters were unlawfully permitted to vote in that the name and address on their application for ballot did not conform to the name and address of a voter in the official register of voters or the judges permitted the voter to vote despite not properly completing the Challenged Voter Affidavit, which is Board of Election Form 1. 6.14 votes should be proportionately reduced from defendant Shaw’s vote total, given the result of the balloting in this precinct. 2.86 votes should be reduced from plaintiff O’Neal’s total.”

We find that paragraphs 8, 11, 16, 17, 18 and 19 of plaintiff’s complaint contain sufficient factual allegations which, if proven, would establish that Shaw’s vote total should be reduced by 46.66 votes and plaintiff’s vote total should be reduced by 25.32 votes because 72 ballots in the aforementioned precincts should not have been counted because the ballots were voted in violation of sections 17 — 9 and/or 18— 5 of the Election Code.

Plaintiff further alleges in his complaint that 4.83 votes should be deducted from Shaw’s margin of victory because at least 50 ballots were improperly voted by an election judge. Voting more than once, tampering with voting machines or otherwise intentionally disregarding or violating the Election Code is statutorily prohibited. (See Ill. Rev. Stat. 1989, ch. 46, pars. 29-5, 29-7, 29-12 (now 10 ILCS 5/ 29 — 5, 29 — 7, 29 — 12 (West 1992)).) The following allegation is contained in plaintiff’s complaint:

“9. In the 5th Precinct of the 9th Ward, an election judge took approximately 50 ballots and a voting machine out of the room where voting was taking place. On information and belief, these ballots were voted in the election, after having been cast by the election judge and not by lawfully registered voters. 27.4 votes should be proportionately reduced from defendant Shaw’s total, given the result of the balloting in this precinct, whereas 22.57 should be reduced from plaintiff O’Neal’s vote total.”

We find that paragraph 9 of plaintiff’s complaint contains sufficient factual allegations which, if proven, would establish that Shaw’s vote total should be reduced by 27.40 votes and plaintiff’s vote total should be reduced by 22.57 votes because 50 ballots in the fifth precinct should not have been counted because the ballots were voted in violation of sections 29 — 5, 29 — 7 and/or 29 — 12 of the Election Code.

Plaintiff further alleges in his complaint that an absentee ballot cast for Shaw was improperly delivered to the precinct in which it was counted. The Election Code provides that an absentee ballot shall be returned by the voter who received such ballot by mail, or if more convenient, in person either by the voter or a spouse, parent, child, brother or sister of the voter, or by a company properly licensed by the State of Illinois. (Ill. Rev. Stat. 1989, ch. 46, par. 19 — 6 (now 10 ILCS 5/19 — 6 (West 1992)).) The following allegation is set forth in plaintiff’s complaint:

“14. In the 18th Precinct of the Ninth Ward, a purported absentee ballot was delivered to the polling place by a precinct captain for defendant Shaw. This absentee ballot was not processed by the Board of Election Commissioners and therefore was improperly counted for defendant Shaw in the vote totals. Defendant Shaw’s total should be reduced by one (1) vote.”

We find that paragraph 14 of plaintiff’s complaint contains sufficient factual allegations which, if proven, would establish that Shaw’s vote total should be reduced by one vote because one ballot in the eighteenth precinct should not have been counted because the ballot was not properly returned to the election authority as prescribed by section 19 — 6 of the Election Code.

The well-pled allegations contained in plaintiff’s complaint, when considered in a light most favorable to plaintiff, would establish that plaintiff received 4,816.11 correct and lawful ballots cast in the supplementary election while Shaw received 4,813.94 correct and lawful ballots. Accordingly, because the allegations of plaintiff’s complaint, if proven, would demonstrate that the result of the supplementary election would have been different had the allegedly improper ballots not been counted, we hold that the trial court erred as a matter of law when it dismissed plaintiff’s complaint as insufficient in law. It is therefore unnecessary to consider whether the results of the discovery recount should be incorporated into paragraph 20 of plaintiff’s complaint or to address plaintiff’s other contentions.

Accordingly, the order of the circuit court dismissing plaintiff’s complaint is reversed, and the case is remanded for further proceedings consistent with what is stated herein.

Reversed and remanded.

CERDA, J., concurs.

PRESIDING JUSTICE TULLY,

dissenting:

I must respectfully dissent from the majority’s opinion as I believe the allegations set forth in O’Neal’s complaint are, at best, conclusory and almost completely devoid of any factual basis.

As the majority correctly notes, “[w]here fraud is alleged, the complaint must contain specific facts from which fraud can be inferred or implied.” (248 Ill. App. 3d at 634-35, citing Vanderbilt v. Marcin (1970), 127 Ill. App. 2d 192, 198, 262 N.E.2d 42, 45; see also In re Contest of the Election for the Offices of Governor & Lieutenant Governor Held at the General Election on November 2, 1982 (1983), 93 Ill. 2d 463, 476, 444 N.E.2d 170, 175; Cooper v. Marcin (1976), 44 Ill. App. 3d 918, 921, 358 N.E.2d 1218, 1220; Cummings v. Marcin (1973), 16 Ill. App. 3d 18, 22, 305 N.E.2d 606, 609.) For the sake of brevity, I will examine only paragraph 9 of O’Neal’s complaint in light of this standard, although the same conclusions could be drawn with respect to many of the complaint’s other paragraphs as well.

In paragraph 9, there are no specific factual allegations, only nebulous references to some unnamed election judge having taken a voting machine somewhere. I do not believe it to be too exacting to require a plaintiff to plead fraud with particularity and fill in the details somewhat. Who is the election judge who allegedly stole approximately 50 votes? Where did the figure of approximately 50 votes come from? Where did all this information come from? Nothing can reasonably be inferred or implied from these “facts.” All that we have pled here is speculation and conjecture.

Therefore, I would affirm the judgment of the circuit court as O’Neal’s complaint is insufficient in law due to its lack of specificity.

       Where a portion of the vote can be identified with certainty, the illegal votes must be apportioned in a ratio of each candidates’ vote at a given precinct and reduced proportionately from the candidate’s vote totals. Jordan v. Officer (1988), 170 Ill. App. 3d 776, 788-89, 525 N.E.2d 1067, 1074-75.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ONE 1979 CHEVROLET C-20 VAN, Defendant (Elizabeth Anderson, ClaimantAppellee).
    Second District
    No. 2 — 92—0667
    Opinion filed August 16, 1993.

      David R. Akemann, State’s Attorney, of Geneva (Mark C. Monaco, Assistant State’s Attorney, and William L. Browers, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Fred M. Morelli, Jr., of Law Offices of Morelli & Cook, and Wilson Burnell, both of Aurora, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

The State appeals the circuit court’s entry of summary judgment in favor of claimant, Elizabeth Anderson, in the State’s forfeiture proceeding under the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 56½, par. 701 et seq. (now codified, as amended, at 720 ILCS 550/1 et seq. (West 1992))). The State contends that claimant’s van is subject to forfeiture and that the summary judgment should be reversed because: (1) the court erred in finding that claimant’s acquittal of criminal charges bars the forfeiture proceeding; and (2) the court erred in finding that the State did not institute the proceeding promptly.

On June 6, 1988, the Batavia police arrested claimant for driving under the influence of alcohol. During an inventory search of the van she was driving, the police discovered over 100 grams of marijuana in four packages under the driver’s seat and a marijuana smoking pipe alongside the seat. The police also found a gram scale in claimant’s purse. Claimant was charged with possession of marijuana with the intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, par. 705(d) (now 720 ILCS 550/5(d) (West 1992))) and possession of marijuana (Ill. Rev. Stat. 1987, ch. 5672, par. 704(d) (now 720 ILCS 550/4(d) (West 1992))). The Batavia police department took custody of the van. Four days later, the Batavia police department requested that the Federal Bureau of Investigation (FBI) initiate forfeiture proceedings. On June 10, the FBI began administrative proceedings, and five days later the Batavia police department relinquished control of the van. Claimant received notification of the Federal administrative proceeding, and she informed the United States Attorney’s office that she wished to contest it.

On September 22, 1988, the State filed a complaint for forfeiture of the van. The United States Attorney did not file the Federal forfeiture action until October 27, 1988. The State then voluntarily dismissed its forfeiture action on December 7, 1988. On February 15, 1990, the Federal district court ordered the forfeiture of the van. Claimant appealed to the United States Court of Appeals for the Seventh Circuit, which reversed the forfeiture on the basis that the district court lacked jurisdiction to order the forfeiture. (United States v. One 1979 Chevrolet C-20 Van (7th Cir. 1991), 924 F.2d 120.) The Federal district court issued its opinion on February 6, 1991.

In a bench trial, claimant was acquitted of possession with intent to deliver and was convicted of possession of marijuana.

On September 26, 1991, the State filed a complaint for forfeiture and for á turnover order. The State alleged that the van was subject to forfeiture, and it requested that the matter be transferred back to the Federal district court. Claimant filed an answer to the complaint and subsequently moved to dismiss the complaint pursuant to sections 2 — 619(a)(4) and (a)(5) of the Code of Civil Procedure (735 ILCS 5/2— 619(a)(4), (a)(5) (West 1992)). Claimant argued that the delay of 40 months between the seizure of the van and the filing of the complaint for forfeiture was not prompt action as required by section 12 of the Cannabis Control Act. (See Ill. Rev. Stat. 1987, ch. 56½, par. 712 (now codified, as amended, at 720 ILCS 550/12 (West 1992)).) Claimant also argued that her conviction of possession of marijuana did not authorize the forfeiture of the van under the applicable version of the Cannabis Control Act.

The court denied the motion for a turnover order and denied, without prejudice, the motion to dismiss. Claimant then filed a motion for summary judgment which alleged that her acquittal of possession with intent to deliver barred any further litigation of that issue, so that there was no genuine issue of material fact regarding the forfeitability of the van. In granting summary judgment for claimant, the court found that res judicata and collateral estoppel barred the forfeiture proceeding and that the action was not commenced within the time provided by law. The State appealed.

Initially, we will address claimant’s contention that the State’s appeal is untimely. Claimant points out that the only relief sought in the State’s complaint was for a turnover order for the van. On January 31, 1992, the trial court denied the State’s request for a turnover order. Claimant reasons that since the turnover order was the only relief requested, the State was required to file its notice of appeal within 30 days of the January 31, 1992, order, which it failed to do.

We find claimant’s contention interesting but without merit. The complaint filed by the State in this cause was captioned “COMPLAINT FOR FORFEITURE AND SUBSEQUENT TURNOVER ORDER.” At the hearing which resulted in the denial of the request for the turnover order, the assistant State’s Attorney indicated that he was proceeding on the second portion of the complaint, which he characterized as a “combination complaint and request for the turnover order.” Except in cases of default or those involving prejudice to the adverse party by reason of surprise, the prayer for relief does not limit the relief obtainable. (See 735 ILCS 5/2 — 604 (West 1992).) In the same order denying the request for the turnover order, the trial court also took claimant’s motions to dismiss under advisement. It is obvious, therefore, that the parties, including claimant, did not treat the denial of the turnover order as the conclusion of the proceedings and, therefore, could not claim surprise under these circumstances. Moreover, a party is not required to avail himself of an appeal pursuant to Supreme Court Rule 304 (134 Ill. 2d R. 304 (appeal of judgments as to fewer than all parties or claims)). The State’s appeal is therefore timely. We now turn to the merits of the appeal.

Summary judgment is appropriate only when the pleadings, depositions, affidavits and admissions on file show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (735 ILCS 5/2 — 1005(c) (West 1992); Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The documents supporting or opposing a summary judgment motion should be construed against the movant. (Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90, 131-32.) Since summary judgment is a drastic remedy, the court should grant it only if the movant’s right to judgment is clear and free from doubt. Outboard Marine Corp., 154 Ill. 2d at 102.

The State first contends that the prior acquittal does not bar relitigating the issue whether the van was used to facilitate the delivery of marijuana. The 1987 version of section 12(a)(3) of the Cannabis Control Act provided that a vehicle used to transport or to facilitate the transportation of marijuana for the purpose of delivery of marijuana was subject to forfeiture. (Ill. Rev. Stat. 1987, ch. 56½, par. 712(a)(3); cf. 720 ILCS 550/12(a)(3) (West 1992) (a vehicle used to transport or facilitate the possession or concealment of marijuana is subject to forfeiture).) Thus, to prevail in this forfeiture action, the State needed to prove that the van was used to facilitate the delivery of marijuana.

We agree with the State that collateral estoppel principles do not apply here. The United States Supreme Court held in United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354, 361-62, 79 L. Ed. 2d 361, 368, 104 S. Ct. 1099, 1104, that an acquittal on criminal charges does not collaterally estop the State from relitigating the same issues in a forfeiture proceeding. “[T]he difference in the relative burdens of proof in the criminal and civil actions precludes the application of the doctrine of collateral estoppel” when the civil proceeding follows the criminal adjudication. (One Assortment of 89 Firearms, 465 U.S. at 362, 79 L. Ed. 2d at 368, 104 S. Ct. at 1104.) The burden of proof in a forfeiture proceeding is by a preponderance of the evidence. (People v. 1984 B M W 528E Automobile (1991), 208 Ill. App. 3d 930, 936.) However, a finding against the State in a forfeiture proceeding will collaterally estop the State to prove a defendant’s guilt in a subsequent criminal proceeding. People v. Buonavolanto (1992), 238 Ill. App. 3d 665, 669.

Since the criminal proceeding preceded the forfeiture action, One Assortment of 89 Firearms controls, and collateral estoppel does not apply. (We note that in 1990 the legislature enacted section 9 of the Drug Asset Forfeiture Act, which provides, in relevant part, that' an acquittal in a criminal proceeding will not bar a civil forfeiture action. (725 ILCS 150/9(J) (West 1992)).) We conclude that the court erred in granting summary judgment for claimant on this basis as a matter of law.

Claimant argues that there is no genuine issue of material fact on the question whether she possessed the marijuana with the intent to deliver. According to claimant, the undisputed evidence on this issue is from her affidavit wherein she stated that she possessed the marijuana for her own use. Claimant argues that the amount of marijuana found in the van was not sufficiently large to support an inference of the intent to deliver. However, claimant ignores the evidence that she had over 100 grams of marijuana in four bags, and she had a gram scale in her purse. (One 1979 Chevrolet C-20 Van, 924 F.2d at 121.) Aside from the amount of drugs possessed, the other factors which may support an inference of the intent to deliver include the manner in which the drugs were kept and the presence of paraphernalia used in the sale of drugs, including a scale. (People v. Songer (1992), 229 Ill. App. 3d 901, 905.) This evidence suggests that claimant was a dealer of marijuana. (See People v. Walker (1990), 194 Ill. App. 3d 864, 868.) Thus, there is a genuine issue of material fact regarding whether the van was used to transport marijuana for the purpose of delivery of marijuana.

The State next contends that the court erred in finding that the State did not institute suit promptly. We note that this issue was not raised in the summary judgment proceeding, and we cannot determine on what basis the court made this finding. However, the State does not argue that the court could not enter summary judgment on this basis.

According to the 1987 version of section 12(c), when property has been seized under the Cannabis Control Act, the forfeiture proceedings “shall be instituted promptly.” (Ill. Rev. Stat. 1987, ch. 56½, par. 712(c) (now codified, as amended, at 720 ILCS 550/12(c) (West 1992)).) The question of what length of time is “prompt” has been the subject of few Illinois opinions.

In People ex rel. Ward v. 1963 Cadillac Coupe (1967), 38 Ill. 2d 344, on October 28, the sheriff notified the State’s Attorney that the car was turned over to the sheriff. Despite the owner’s demand, on December 22, for the return of the car, the State’s Attorney did not file the forfeiture action until February 8. The court held that this 105-day delay was not “prompt.” 1963 Cadillac Coupe, 38 Ill. 2d at 347-48.

In People v. Glenn (1986), 142 Ill. App. 3d 1108, the court ruled that the trial court erred in dismissing the forfeiture complaint because the 12-month delay between the filing and the hearing was not unreasonable. However, in Glenn, the State’s Attorney promptly filed the complaint, and the delay occurred after the complaint was filed.

In People v. Strong (1986), 151 Ill. App. 3d 28, the court held that the 63-day delay between the seizure of the property and the filing of the forfeiture complaint was prompt. Strong, 151 Ill. App. 3d at 35.

These cases afford little guidance in a situation such as the present one, where the State initially filed the complaint for forfeiture a few months after the seizure of the property, but dismissed the complaint because the cause was proceeding in Federal court. In United States v. $8,850 in United States Currency (1983), 461 U.S. 555, 76 L. Ed. 2d 143, 103 S. Ct. 2005, the Supreme Court discussed the factors to consider to determine whether a delay in filing a forfeiture proceeding violates the claimant’s right to due process. The Court adopted the four-factor balancing test of Barker v. Wingo (1972), 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, to determine whether the 18-month delay in filing the forfeiture action was unreasonable. ($8,850, 461 U.S. at 556, 76 L. Ed. 2d at 147, 103 S. Ct. at 2008.) The factors to consider are: (1) the length of the delay; (2) the reason for the delay; (3) the claimant’s assertion of his or her right; and (4) the prejudice to the claimant. $8,850, 461 U.S. at 564, 76 L. Ed. 2d at 152, 103 S. Ct. at 2012.

This balancing of the factors is a fact-based determination. ($8,850, 461 U.S. at 565 n.14, 76 L. Ed. 2d at 152 n.14, 103 S. Ct. at 2012 n.14.) The following evidence was considered by the trial court during the summary judgment hearing. The State filed the first complaint slightly more than three months after the initial seizure. The State dismissed that complaint voluntarily after the FBI took possession of the van and the United States Attorney instituted forfeiture proceedings in Federal court. The State filed the second complaint seven months after the Court of Appeals rendered its decision. The entire period of the delay was 40 months. The district court ordered the forfeiture of the van, and that order was reversed on appeal for lack of jurisdiction. Claimant asserted her right to the van in the Federal proceeding. There was no evidence presented on the factor of the prejudice to claimant’s rights.

When reasonable persons could draw divergent inferences from undisputed facts, the trial court should not enter summary judgment. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358.) We believe that reasonable persons could draw divergent inferences from these facts on whether the delay was reasonable under the circumstances. We therefore remand the cause for further proceedings.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

UNVERZAGT and BOWMAN, JJ., concur.


author: JUSTICE COOK

text:
    ROBERT L. BENTLEY, Plaintiff-Appellant, v. GLENN SHIPLEY ENTERPRISES, INC., et al., Defendants-Appellees.
    Fourth District
    No. 4 — 93—0044
    Argued June 22, 1993.
    Opinion filed August 19, 1993.

      John McMahon (argued), of Zimmerly, Gadau, Selin & Otto, of Champaign, for appellant.
    Michael J. Tague (argued), of Flynn, Palmer & Tague, of Champaign, for appellees.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiff Robert Bentley commenced a supplementary proceeding to discover assets belonging to the judgment debtor, Glenn Shipley Enterprises, Inc. (Shipley Enterprises). Bentley .served Glenn Shipley and Shirley Shipley (the Shipleys) with third-party citations to discover assets of the judgment debtor in their possession. Bentley discovered $18,243.48 in checks written on the Shipley Enterprises corporate checking account by the Shipleys for their own personal expenditures unrelated to the corporation’s business. Bentley filed a motion for turnover order, requesting the trial court order the Shipleys to turn over $18,243.48 to him in partial satisfaction of his judgment against Shipley Enterprises. The trial court denied Bentley’s motion. Bentley appeals, contending the trial court erred in refusing to order the Shipleys to turn over $18,243.48. We reverse and remand.

On March 28, 1987, Bentley sustained injuries arising out of and in the course of his employment with Shipley Enterprises. Bentley filed an action against Shipley Enterprises with the Industrial Commission of Illinois, pursuant to the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). A hearing was held on April 9, 1990, and on August 3, 1990, the arbitrator awarded Bentley compensation. Shipley Enterprises did not appeal or otherwise move to have the award modified, set aside, or vacated, and the award thus became the final decision of the Industrial Commission. (Ill. Rev. Stat. 1985, ch. 48, par. 138.19(b).) Shipley Enterprises did not pay the compensation awarded Bentley.

On January 18, 1991, Bentley filed a two-count complaint in the circuit court of Champaign County seeking judgment on the workers’ compensation award. Count I requested judgment against Shipley Enterprises and count II requested judgment against Glenn Shipley and Shirley Shipley, individually. Count II alleged there was a “unity of interest” between Shipley Enterprises and the Shipleys, and the corporation was merely the Shipleys’ “alter ego.” On March 20, 1991, the trial court entered judgment on count I of the complaint in the amount of $15,720.70 (the amount of the workers’ compensation award plus interest) and dismissed count II with prejudice. The judgment on count I was later modified to include reasonable costs, additional interest, and attorney fees, for a total exceeding $18,600.

Bentley commenced supplementary proceedings to discover assets of the judgment debtor, Shipley Enterprises. The Shipleys confirmed they were the sole shareholders, officers, directors, and incorporators of Shipley Enterprises. It was revealed that $18,243.48 in corporate checks were written for the personal expenses of the Shipleys; all of these checks were paid to creditors of the Shipleys prior to September 3, 1990.

On July 14, 1992, Bentley filed a motion for turnover order, with a supporting memorandum, requesting that the trial court order the Shipleys to turn over $18,243.48 to be applied toward satisfaction of the judgment against Shipley Enterprises. The motion asked the court to either pierce the corporate veil and find the Shipleys liable individually, or order the Shipleys to deliver up the assets they misappropriated from Shipley Enterprises. After a hearing on the motion the trial court entered an order finding “Glenn Shipley and Shirley Shipley applied $18,243.48 in money belonging to Glenn Shipley Enterprises, Inc., for their personal benefit.” However, the trial court found this money “was not applied in contemplation of defeating the judgment of Plaintiff against the Defendant, Glenn Shipley Enterprises, Inc., and, therefore, is not property of the Defendant *** which this court may order to be delivered up in satisfaction of the judgment in this cause.” Accordingly, the trial court denied Bentley’s motion for a turnover order.

The trial court properly refused to pierce the corporate veil at the supplementary proceeding. Bentley advocated piercing the corporate veil in his initial complaint; however, the trial court dismissed that count with prejudice for failure to state a cause of action. Following the trial court’s dismissal with prejudice Bentley did not file a motion to amend the complaint, nor did he appeal the dismissal within 30 days. (134 Ill. 2d R. 303(a)(1).) Supreme Court Rule 273 provides:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” (134 Ill. 2d R. 273.)

A dismissal with prejudice for failure to state a cause of action acts as an adjudication on the merits and the doctrine of res judicata bars a subsequent action between the same parties on the same claim or cause of action. (McGann v. Illinois Hospital Association, Inc. (1988), 172 Ill. App. 3d 560, 568-69, 526 N.E.2d 902, 906-07; see Restatement (Second) of Judgments § 19(d) (1982).) As the dismissal with prejudice for failure to state a cause of action acted as a judgment on the merits, a subsequent action based on piercing the corporate veil was barred by res judicata.

Section 13 — 217 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 217) has been held to be a statute which “otherwise specifies” (emphasis omitted) for purposes of Rule 273. (Kraus v. Metropolitan Two Illinois Center (1986), 146 Ill. App. 3d 210, 212, 496 N.E.2d 1080, 1082.) Section 13 — 217 of the Code provides that a plaintiff may commence a new action within one year or within the remaining period of limitation, whichever is greater, in various situations, including where the action is dismissed for want of: prosecution. (Ill. Rev. Stat. 1991, ch. 110, par. 13 — 217.) That section, however, has no application to the present case where the count seeking to pierce the corporate veil was dismissed for failure to state a cause of action.

The trial court gave two reasons for denying Bentley’s motion for a turnover order. First, the trial court held that because the Shipleys applied the money for their personal benefit prior to Bentley becoming a judgment creditor of Shipley Enterprises, the “money was not applied in contemplation of defeating the judgment of Plaintiff [Bentley] against the Defendant, Glenn Shipley Enterprises, Inc., and, therefore, is not property of the Defendant, Glenn Shipley Enterprises, Inc., which this court may order to be delivered up in satisfaction of the judgment in this cause.” Bentley concedes the fact that the corporation’s money was applied for the Shipleys’ personal benefit before he became a judgment creditor might be significant if he were relying on a fraudulent conveyance theory, because such an action may require an intent to defraud. (See Bank of Aspen v. Fox Cartage, Inc. (1987), 158 Ill. App. 3d 939, 944-45, 511 N.E.2d 1234, 1237.) Bentley contends, however, the timing of the application of the corporation’s money for the Shipleys’ personal benefit is irrelevant to the relief requested by him, because section 2 — 1402(b)(3) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1402(b)(3)) does not require any showing of an intent to defraud the judgment creditor. We agree.

Section 2 — 1402(b)(3) of the Code as it relates to supplementary proceedings provides as follows:

“When assets or income of the judgment debtor not exempt from the satisfaction of a judgment, a deduction order or garnishment are discovered, the court may, by appropriate order or judgment:
* * *
Compel any person cited, other than the judgment debtor, to deliver up any assets so discovered, to be applied in satisfaction of the judgment, in whole or in part, when those assets are held under such circumstances that in an action by the judgment debtor he or she could recover them in specie or obtain a judgment for the proceeds or value thereof as for conversion or embezzlement.” (Ill. Rev. Stat. 1991, ch. 110, par. 2— 1402(b)(3).)

Supreme Court Rule 277(a), which implements section 2 — 1402 of the Code, provides in pertinent part as follows:

“A supplementary proceeding authorized by section 2 — 1402 of the Code of Civil Procedure may be commenced at any time with respect to a judgment which is subject to enforcement. The proceeding may be against the judgment debtor or any third party the judgment creditor believes has property of or is indebted to the judgment debtor.” 134 Ill. 2d R. 277(a).

These provisions create a comprehensive framework for discovery of assets through supplementary proceedings and are to be liberally construed. (O’Connell v. Pharmaco, Inc. (1986), 143 Ill. App. 3d 1061, 1068, 493 N.E.2d 1175, 1180.) In particular, section 2 — 1402(b)(3) of the Code gives courts “broad powers to compel, in a summary manner, the application of discovered assets or income to the satisfaction of a judgment.” (Froehlich v. J.R. Froehlich Manufacturing Co. (1981), 93 Ill. App. 3d 179, 186, 416 N.E.2d 1134, 1139.) To initiate such proceedings against a third party (here, the Shipleys), Rule 277 requires that the judgment creditor (here, Bentley) believe the third party has property of, or is indebted to, the judgment debtor (that is, Shipley Enterprises). The supplementary proceeding thereby enables the creditor to discover any such property or indebtedness. If the creditor can show the third party has property of or is indebted to the judgment debtor, the court is empowered under section 2 — 1402(b)(3) of the Code to compel the third party to deliver up any assets so discovered or the value thereof, if those assets are held under circumstances in which the judgment debtor could recover them in an appropriate action. Froehlich, 93 Ill. App. 3d at 186, 416 N.E.2d at 1139.

We hold section 2 — 1402 of the Code and Supreme Court Rule 277 do not require a finding of fraudulent intent on behalf of the judgment debtor in transferring assets to a third party in order for a court to force that third party to deliver up the assets to the judgment creditor. It is enough that the judgment debtor has the right to recover the assets from the third party. Accordingly, Bentley is not barred in a supplementary action against the Shipleys merely because the Shipleys came into possession of the assets before Bentley obtained the judgment against Shipley Enterprises. See Shatkin Investment Corp. v. Connelly (1984), 128 Ill. App. 3d 518, 524, 470 N.E.2d 1230, 1234 (judgment creditor is not limited to period after citation when questioning third party about location of judgment debtor’s assets).

The second reason the trial court refused to find in favor of Bentley was that, although the corporate money was applied to the Shipleys’ personal debts, the payments were not made directly to the Shipleys. The trial court indicated that if there was “a fund of money in the hands of the Shipleys which was property of the corporation,” it could order them to “pay it over in satisfaction of the judgment entered against the corporation.” The trial court held, however, that since the money was applied to the Shipleys’ debts and was not given directly to them, the Shipleys did not have possession of corporate assets.

The Shipleys contend they did not possess any corporate assets at the time of the citation since the corporation’s money spent on their personal debts was never in their hands. The Shipleys rely exclusively on Lange v. Misch (1992), 232 Ill. App. 3d 1077, 598 N.E.2d 412, where this court found the trial court erred in piercing the corporate veil in a supplementary proceeding and finding a controlling stockholder liable for the debt of a corporate judgment debtor where there was no evidence the controlling stockholder possessed any assets of the judgment debtor. In Lange, however, the record was devoid of any evidence regarding the transfer of any corporate assets to, or for the benefit of, the third party. Here, the evidence showed that “Glenn Shipley and Shirley Shipley applied $18,243.48 in money belonging to Glenn Shipley Enterprises, Inc., for their personal benefit.”

The fact the money went directly to the Shipleys’ creditors does not necessarily prevent judgment against the Shipleys. The court in Froehlich (93 Ill. App. 3d at 186, 416 N.E.2d at 1139-40) refused to apply assets held by a third party to satisfy a judgment against a corporation because the plaintiff failed to show the third party “had any assets of the corporation in his possession or control or that he was indebted to the corporation.” (Emphasis added.) Here, although the Shipleys never had physical possession of the money because it went to their creditors, the evidence indicated they were indebted, to the corporation for the payments made on their behalf and for their benefit to their creditors.

Finally, as to the corporate money paid to their creditors, the Shipleys contend they could have claimed a setoff for wages and value given to the corporation for which they were not paid, including personal guarantees of corporate debts. Despite the Shipleys’ claims, the trial court apparently did not find they were entitled to a setoff. The court specifically found that only the timing and the identity of the recipient of the payments prevented recovery:

“[B]ased on the record ***, I find it to be a fact that the $18,243.48 was applied from corporate monies to the personal debts, and for the benefit of, the Shipleys. So I want no lack of clarity in the record as to the amount of money, or for whose benefit it was paid out. It is the timing of the payments and the fact that the payments did not necessarily end up in the hands of the Shipleys, although perhaps made for their benefit, which I think is the infirmity in what Plaintiff asks me to do here.”

Because we hold that the transfers did not have to be made with the intent of defeating Bentley’s claim and that Bentley’s claim was not barred merely because the transfers were not made directly to the Shipleys, we reverse and remand for further proceedings. On remand Bentley may proceed, as if in the shoes of Shipley Enterprises, against the Shipleys to attempt to recover against the $18,243.48 he believes the Shipleys owe Shipley Enterprises. The parties may present further evidence but no further amendment to the pleadings appears to be necessary in light of the fact that strict pleading rules are not applied to supplementary proceedings cases.

Reversed and remanded.

KNECHT and GREEN, JJ., concur.


author: PRESIDING JUSTICE CHAPMAN

text:
    STANLEY JACOB et al., Plaintiffs-Appellees, v. C AND M VIDEO, INC., et al., Defendants-Appellants.
    Fifth District
    No. 5 — 92—0681
    Opinion filed August 10, 1993.

      Phillip H. Hamilton, of Farrell Law Firm, P.C., of Godfrey, for appellants.
    David M. Duree, of O’Fallon, and Reinert, Duree & Crane, P.C., of St. Louis, Missouri (David M. Duree and Robert L. Carter, of counsel), for appellees.
   PRESIDING JUSTICE CHAPMAN

delivered the opinion of the court:

On August 25, 1992, the plaintiffs, franchisees of C & M Video, Inc. (C & M), filed suit alleging that C & M and Terry Monroe committed common law fraud, violated the disclosure provisions of the Franchise Disclosure Act of 1987 (815 ILCS 705/1 et seq. (West 1992)), and breached their franchise agreements. Defendants filed a motion to dismiss on the basis that the arbitration provision in the franchise agreements requires the parties to submit to arbitration. C & M also filed a petition for temporary restraining order to enjoin the plaintiffs from violating the franchise agreements, from diverting any business of the C & M franchise, and from operating any similar business within a radius of 10 miles of any C & M store. The trial court denied both the motion to dismiss and the petition for injunctive relief. Defendants appeal.

The first issue on appeal is whether the trial court abused its discretion in denying defendants’ request to compel arbitration. The plaintiffs submit that defendants have waived their right to compel arbitration because the defendants’ motion to dismiss set forth plaintiffs’ alleged failure to serve a notice of default upon C & M in accordance with the franchise agreements. Plaintiffs assert that the defendants, who lost that issue, cannot now complain that the trial court should have compelled arbitration of that and other issues. Plaintiffs cite Cencula v. Keller (1987), 152 Ill. App. 3d 754, 504 N.E.2d 997, in support of their argument. In Cencula a contractor brought an action against a homeowner for the amount allegedly due on a contract. The court denied the homeowner’s motion to compel arbitration because the homeowner, by his answer, which alleged additional credits, and by his bill of particulars, which listed expense items, put into issue many facts which appeared to fall within the ambit of the contract’s arbitration clause. Cencula held such conduct was so inconsistent with the right to arbitrate that it constituted a waiver of that right.

In this case, contrary to Cencula, defendants’ motion to dismiss stated, at the outset, defendants’ demand for arbitration. In an alternative prayer for relief, defendants requested the court to compel arbitration and to stay the litigation pending the completion of arbitration. In Cencula defendant submitted arbitrable issues to the trial court for determination and did not assert his demand for arbitration until 9½ months after the complaint was filed. In this case defendants asserted their claim for arbitration when they filed their initial pleading. It is well settled that arbitration is a favored method of settling disputes in Illinois and that waiver can occur only when a party’s conduct is inconsistent with the arbitration clause. (Burnett v. Safeco Insurance Co. (1992), 227 Ill. App. 3d 167, 179, 590 N.E.2d 1032, 1041.) We cannot find that defendants, by filing their motion to dismiss, acted in a manner inconsistent with the arbitration clause.

Plaintiffs also argue that defendants have waived their right to seek arbitration because the defendants’ petition for temporary restraining order exceeded the scope of subparagraph C of the arbitration clause and would arguably have subjected the plaintiffs to litigation for trademark infringement. Subparagraph C of the arbitration provision provides:

“Nothing herein contained shall bar the right of either party to seek and obtain temporary injunctive relief from a court of competent jurisdiction in accordance with applicable law against threatened conduct that will cause loss or damage, pending completion of the arbitration.”

Defendants’ petition for temporary restraining order sought to prohibit the plaintiffs from: (a) violating the terms of the franchise agreement; (b) diverting or attempting to divert business or customers of the plaintiffs’ C & M franchised facilities to other competitive establishments; and (c) engaging in any similar business or operation within a 10-mile radius of their current locations. Defendants’ petition also prayed for other and further relief as the court deemed equitable and just.

Evidence was presented at the hearing on the petition that the franchisees had removed the C & M signs from their stores but were continuing to operate video stores under different names at those locations. Defendants requested a temporary restraining order to enjoin the plaintiffs from continuing to violate the restrictive covenant of the franchise agreement.

Plaintiffs argue that C & M clearly exceeded subparagraph C because the injunctive relief sought was not temporary in nature and was not against threatened conduct but was against conduct that had already occurred. Plaintiffs further contend that the injunctive relief was not against conduct “pending completion of arbitration,” in that the relief sought would have, according to defendants’ own argument, subjected plaintiffs to litigation in Federal court for trademark infringement. Counsel for the defendants argued at the hearing for injunctive relief that he intended to seek redress in the Federal court for trademark infringement. Contrary to plaintiffs’ assertion, however, defendants’ counsel has at all times acted consistently with his belief that all issues should be submitted to arbitration. For instance, in his opening statement at the hearing, defendants’ counsel stated that he expected the court to allow the defendants’ request for temporary injunctive relief and that plaintiffs’ complaint would later be dismissed due to the mandatory arbitration agreement.

Arbitration is a favored method of resolving disputes in Illinois, and a waiver of the right to arbitrate is disfavored. (D.E. Wright Electric, Inc. v. Henry Ross Construction Co. (1987), 183 Ill. App. 3d 46, 53, 538 N.E.2d 1182, 1187; Cencula, 152 Ill. App. 3d 754, 504 N.E.2d 997.) Waiver may occur, however, when a party acts in a manner inconsistent with the arbitration clause, thus indicating an abandonment of the right. (Atkins v. Rustic Woods Partners (1988), 171 Ill. App. 3d 373, 378, 525 N.E.2d 551, 555.) A party’s conduct amounts to waiver when the party submits arbitrable issues to a court for decision. (Kostakos v. K S N Joint Venture No. 1 (1986), 142 Ill. App. 3d 533, 536, 491 N.E.2d 1322, 1324.) In reviewing the record, we believe defendants’ request for a temporary restraining order was merely responsive. (See D.E. Wright Electric, Inc. v. Henry Ross Construction Co. (1989), 183 Ill. App. 3d 46, 538 N.E.2d 1182; Edward Electric Co. v. Automation, Inc. (1987), 164 Ill. App. 3d 547, 518 N.E.2d 172.) The motion to dismiss had not been decided by the trial court, but the plaintiffs allegedly continued to engage in conduct which defendants felt compelled to enjoin. Under the circumstances, defendants’ avenue for temporary injunctive relief was via the lawsuit initiated by the plaintiffs because the trial court already had jurisdiction over the case. We conclude that defendants did not waive their right to seek arbitration.

Plaintiffs also argue that the court properly denied defendants’ request for arbitration because defendant Terry Monroe is not a party to the arbitration agreement, and to compel arbitration would resolve only those issues between the plaintiffs and one of the two defendants. An examination of the record shows that Terry Monroe, as president of C & M, signed five of the seven franchise agreements on behalf of C & M (one with Jacob, two with the Freses, two with the Chestermans). The remaining franchise agreements were signed on behalf of C & M by plaintiff Peter Frese as director of franchising (one with Jacob, one with Webb).

Plaintiffs contend that Monroe signed on behalf of C & M and as president of C & M, not in an individual capacity. Thus, plaintiffs argue, arbitration cannot be compelled by Terry Monroe. Defendants argue that because all parties are signatories to the franchise agreements, the trial court erred in failing to compel arbitration as to all the parties. We disagree with the defendants.

A nonparty to an arbitration agreement can neither compel arbitration nor be compelled to arbitrate. (Vukusich v. Comprehensive Accounting Corp. (1986), 150 Ill. App. 3d 634, 640, 501 N.E.2d 1332, 1336.) As pointed out in Vukusich, the status of a person or entity entitled to compel arbitration is determined from the language of the agreement giving rise to the arbitration. (Vukusich, 150 Ill. App. 3d at 642, 501 N.E.2d at 1337.) An examination of the franchise agreements reveals that Terry Monroe signed the instruments on behalf of C & M, in his representative capacity as president of the corporation. Contrary to plaintiffs’ position, however, this does not mean that arbitration as to C & M is forestalled. Arbitration could, for instance, be compelled for all claims involving C & M, with claims involving Terry Monroe stayed until the completion of arbitration. See 710 ILCS 5/2 (West 1992); see also Vukusich v. Comprehensive Accounting Corp. (1986), 150 Ill. App. 3d 634, 501 N.E.2d 1332.

Plaintiffs next argue that the trial court did not err in denying defendants’ request to compel arbitration because the arbitration clause is unenforceable in that it lacks mutuality. Plaintiffs cite Hull v. Norcom, Inc. (11th Cir. 1985), 750 F.2d 1547, for the proposition that an arbitration agreement is not mutually binding where one party reserves the option to raise and resolve the majority of disputes in a court rather than through arbitration. Hull held that a mutual agreement to arbitrate was effectively abrogated by provisions granting one party a unilateral right to a judicial forum in the event of a breach of the agreement. Plaintiffs complain that C & M reserved to itself the right to resolve its most significant disputes in the courts and required the franchisees to resort to arbitration.

We disagree with plaintiffs’ argument. Plaintiffs overlook that subparagraph C of the arbitration provision at issue allows either party to seek temporary injunctive relief. Furthermore, while defendants have argued that they are not foregoing any right they might have to seek redress in the Federal court for trademark infringement in the event arbitration is not forthcoming, defendants assert, and we agree, that both parties under the terms of the franchise agreement agreed to submit disputes to arbitration. Nothing in the franchise agreement precludes either party from litigating issues in a court in the event arbitration is not invoked.

The next issue raised by the plaintiffs is that enforcement of the arbitration clause would be unconscionable because arbitration (1) would force the plaintiffs out of business and cause them to forfeit a substantial investment, and (2) would deny plaintiffs the protection of the Franchise Disclosure Act.

Without the benefit of a financial analysis of the parties’ potential losses, or similar evidence in the record, we rely solely on the representations of the parties that they will incur losses pending the outcome of this litigation. The risk of loss is apparent for all parties in the context of litigation. Plaintiffs would have this court believe that if arbitration is required they will automatically forfeit any claim for damages against the defendants. While we express no opinion on plaintiffs’ potential opportunity to recover such damages in the event damages are incurred, we are mindful of Illinois authority which allows for damages. See for instance Illinois law which allows for damages if the injunctive relief is improper (735 ILCS 5/11 — 110 (West 1992); Hirschauer v. Chicago Sun-Times (1989), 192 Ill. App. 3d 193, 548 N.E.2d 630) or where the doctrine of equitable recoupment is invoked (Cox v. Doctor’s Associates, Inc. (1993), 245 Ill. App. 3d 186). We find, therefore, plaintiffs’ argument that arbitration is unconscionable because of the risk of financial loss to be without merit.

In support of plaintiffs’ argument that enforcement of the arbitration clause would deny them the protection of the Franchise Disclosure Act (815 ILCS 705/1 et seq. (West 1992)), plaintiffs cite two Illinois cases: Barter Exchange, Inc. of Chicago v. Barter Exchange, Inc. (1992), 238 Ill. App. 3d 187, 606 N.E.2d 186, and State Farm Fire & Casualty Co. v. Yapejian (1992), 152 Ill. 2d 533, 605 N.E.2d 539.

In Barter Exchange, the court ruled that a Texas corporation could not compel an Illinois corporation to arbitrate a franchise agreement executed in Illinois in Texas because to do so would deny the Illinois franchisee the protection of the Franchise Disclosure Act. The court further held that while the Franchise Disclosure Act permits arbitration in a forum outside of Illinois, the issue of whether the parties entered into an enforceable contract is not arbitrable because the question of whether a contract existed is an issue of law determinable only by a court. (Barter Exchange, 238 Ill. App. 3d at 194, 606 N.E.2d at 190.) At the outset we note that Barter Exchange is distinguishable because the choice-of-law provision in this franchise agreement provides for Illinois. As for the court’s decision in Barter Exchange that the question of the existence of a contract is always for a court to decide, we disagree. The question of the existence of a contract is a question of contract application and interpretation for the arbitrator, not the court, and the court should not deprive the party seeking arbitration of the arbitrator’s skilled judgment by attempting to resolve the ambiguity. (Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 448, 530 N.E.2d 439, 445.) As set forth in Cusamano v. Norrell Health Care, Inc. (1992), 239 Ill. App. 3d 648, 654, 607 N.E.2d 246, 250, the arbitrator can provide the relief plaintiffs request, and if the arbitrator does not address a particular issue, plaintiffs can then file suit.

Plaintiffs cite State Farm Fire & Casualty Co. v. Yapejian (1992), 152 Ill. 2d 533, 605 N.E.2d 539, for the proposition that the arbitration clause should be interpreted narrowly so as not to require arbitration of the disputes at bar. Plaintiffs contend that State Farm supports their contention that the requirement to arbitrate all issues eviscerates enforcement of the Franchise Disclosure Act. State Farm, which dealt with issues involving uninsured motorist coverage, held that once coverage is established arbitration is limited to disputes concerning covered claims. The court noted that absent an explicit statement of legislative intent that the General Assembly intended to transfer responsibility for resolving all issues regarding uninsured motorist coverage away from the courts, it would interpret section 143a of the Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 755a), which required arbitration of “any dispute with respect to such coverage,” narrowly. State Farm, 152 Ill. 2d at 543-44, 605 N.E.2d at 544.

State Farm did not dispel arbitration as a tool for resolving disputes. The decision merely reinforced the rule that the status of an issue as arbitrable is determined from the language of the agreement giving rise to the arbitration. (See Vukusich v. Comprehensive Accounting Corp. (1986), 150 Ill. App. 3d 634, 642, 501 N.E.2d 1332, 1337.) Plaintiffs’ argument that the Franchise Disclosure Act is eviscerated if arbitration of disputes is required holds little weight given the fact that the Act itself recognizes arbitration as a tool in resolving franchise disputes (see 815 ILCS 705/4 (West 1992)). We do not agree with plaintiffs’ argument that it would be unconscionable to enforce the arbitration clause.

The next issue on appeal is whether the court abused its discretion in denying defendants’ motion to dismiss, thereby refusing to abide by the arbitration clause in the franchise agreements. Each of the parties’ franchise agreements contains the following provision:

“ARBITRATION
A. Except as specifically otherwise provided in this Agreement, the parties agree that any and all disputes between them, and any claim by either party that cannot be amicably settled, shall be determined solely and exclusively by arbitration in accordance with the rules of the American Arbitration Association or any successor thereof. Arbitration shall take place at an appointed time and place in Effingham County, Illinois.
B. Each party shall select one arbitrator (who shall not be counsel for the party), and the two so designated shall select a third arbitrator. *** Judgment upon any award of the majority arbitration shall be binding and shall be entered in a court of competent jurisdiction. The award of the arbitrators may grant any relief which might be granted by a court of general jurisdiction, including, without limitation, by reason of enumeration, award of damages and/or arbitrators^] and reasonable attorney’s fees, against either or both parties, in such proportions as the arbitrators shall determine.
C. Nothing herein contained shall bar the right of either party to seek and obtain temporary injunctive relief from a court of competent jurisdiction in accordance with applicable law against threatened conduct that will cause loss or damage, pending completion of the arbitration.
D. It is the intent of the parties that any arbitration between FRANCHISOR and FRANCHISEE shall be of FRANCHISEE’S individual claim and that the claim subject to arbitration shall not be arbitrated on a classwide basis.”

For reasons which are not apparent from the trial court’s order, defendants’ motion to dismiss was denied. Defendants contend that not only do the contracts require that all claims between the parties be submitted to arbitration but sections 1 and 2 of the Uniform Arbitration Act (710 ILCS 5/1, 2 (West 1992)) also support such a position. For the reasons discussed herein, we agree that the trial court abused its discretion in denying defendants’ motion to dismiss. We further find that the court abused its discretion in not ordering that the claims between the plaintiffs and C & M be submitted to arbitration. As we have already determined in this opinion, Terry Monroe, in his individual capacity, is not a party to the franchise agreements, and therefore, we remand for a determination of whether the claims involving Terry Monroe should be severed from those involving C & M, stayed pending arbitration of the claims between plaintiffs and C & M, or dealt with in another manner as determined by the trial court.

Arbitration is a favored method of settling disputes. (D.E. Wright Electric, Inc. v. Henry Ross Construction Co. (1989), 183 Ill. App. 3d 46, 53, 538 N.E.2d 1182, 1187.) According to the Uniform Arbitration Act, if the language of the arbitration agreement is clear and if it is obvious that the dispute desired to be arbitrated falls within the scope of the arbitration clause, the court should decide the arbitration issue and compel arbitration. (Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 445, 530 N.E.2d 439, 443.) In determining the scope of the arbitration clause, the court examines both the wording of the clause and the terms of the contract. (Atkins v. Rustic Woods Partners (1988), 171 Ill. App. 3d 373, 378, 525 N.E.2d 551, 555.) In this case the plaintiffs do not dispute the literal meaning of the language of the franchise agreements that the parties agree that any and all disputes between them “shall be determined solely and exclusively by arbitration.” We have already addressed the specific arguments the plaintiffs have posed with regard to the arbitration clause, and we cannot find that the arbitration clause should not be enforced as to the issues raised in plaintiffs’ complaint against C&M.

An additional argument which has been posited on appeal is that the potential severance of the claims against Terry Monroe from the claims against C&M would thwart judicial economy and the best course would be to try all claims in a court. In the instant case we cannot find that the policy of judicial economy should outweigh the policy of favoring arbitration. Generally, an agreement to arbitrate is enforced despite the existence of claims by third parties or of pending multiparty litigation. Atkins v. Rustic Woods Partners (1988), 171 Ill. App. 3d 373, 380, 525 N.E.2d 551, 556; M.D. Building Material Co. v. 910 Construction Venture (1991), 219 Ill. App. 3d 509, 519, 579 N.E.2d 1059, 1065.

The last issue for our consideration is whether the trial court erred in refusing C & M’s request for injunctive relief. In its petition for temporary restraining order with notice and other injunctive relief, C&M requested an order enjoining, prohibiting, and restraining the plaintiffs from the following:

(a) violating the terms of the individual franchise agreements;

(b) diverting or attempting to divert business or customers of any C & M franchised facility to any competitive establishment; and (c) participating in the operation of any similar business within a radius of 10 miles of any existing franchised facility.

Notice was given of the hearing on the petition for injunctive relief, a hearing was held, and the trial court denied defendant’s request for relief.

As a preliminary matter, a question is raised in the briefs as to what standard of review we should apply because there is some question as to whether the trial court treated the defendant’s petition as one for a temporary restraining order or one for a preliminary injunction. A temporary restraining order issued with notice and a preliminary injunction issued with notice are the same type of relief and, whether referred to under either term, require the same elements of proof. (Kable Printing Co. v. Mount Morris Bookbinders Union Local 65 — B (1976), 63 Ill. 2d 514, 524, 349 N.E.2d 36, 40; Houseknecht v. Zagel (1983), 112 Ill. App. 3d 284, 291, 445 N.E.2d 402, 407.) The party seeking a preliminary injunction or temporary restraining order must establish that it has a protectable right, that it will suffer irreparable harm if injunctive relief is not granted, that its remedy at law is inadequate, and that there is a likelihood of success on the merits. (Houseknecht v. Zagel (1983), 112 Ill. App. 3d 284, 291-92, 445 N.E.2d 402, 407.) The party seeking relief is not required to make out a case which would entitle him to relief on the merits; rather, he need only show that he raises a “fair question” about the existence of his right and that the court should preserve the status quo until the case can be decided on the merits. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 382, 483 N.E.2d 1271, 1275.) In evaluating these factors, we are mindful that the scope of review in an interlocutory appeal is normally limited to determining whether the trial court abused its discretion in granting or refusing the requested interlocutory relief. (Zurich Insurance Co. v. Raymark Industries, Inc. (1991), 213 Ill. App. 3d 591, 594, 572 N.E.2d 1119, 1122; Best Coinop, Inc. v. Old Willow Falls Condominium Association (1983), 120 Ill. App. 3d 830, 458 N.E.2d 998.)

“ ‘A preliminary injunction is issued to preserve the status quo until the trial court may consider the merits of the case. In ruling on a motion for such relief, controverted facts or the merits of the case are not decided. In reviewing the discretion exercised by the trial court, an appellate court may decide only whether the petitioner has demonstrated a prima facie case that there is a fair question as to the existence of the rights claimed; that the circumstances lead to a reasonable belief that they probably will be entitled to the relief sought, if the evidence sustains the allegations of the petition; and that matters should be kept in status quo until the case can be decided on its merits. In sum, the only question before us is whether there was a sufficient showing to sustain the order of the trial court.’ ” (Emphasis in original.) Dixon Association for Retarded Citizens v. Thompson (1982), 91 Ill. 2d 518, 524-25, 440 N.E.2d 117, quoting City of Chicago v. Airline Canteen Ser vice, Inc. (1978), 64 Ill. App. 3d 417, 432-33, 380 N.E.2d 1106, 1118.

At the hearing on the petition for injunctive relief, Hershal Monroe, president of C & M, testified that, with the exception of the Chestermans’ franchise, which is in the process of being terminated, all but one of the franchisees in this case have either been terminated or have not been renewed. Monroe testified that each of the franchisees ceased paying royalty and advertising fees, even though the seven stores they operate have total gross revenues of approximately $17,900 per week. He testified that the franchisees have removed their C & M signs from their businesses and no longer operate under the name C & M Video. They do, however, continue to operate video rental businesses from the same locations, which is allegedly in violation of the franchise agreements. Monroe testified: “This will destroy the whole system. There is no reason to have a franchising system if this happens.” He testified that the actions of the plaintiffs will damage C & M’s goodwill and foster the potential problem of recruiting new franchisees into the system. Counsel for C & M argued that irreparable injury will occur in the form of destruction of the statewide franchise which consists of approximately 28 stores including the plaintiffs’ stores. Counsel argued that if injunctive relief is not granted the entire C & M franchise will be destroyed and no amount of damages can compensate for that loss.

While Monroe testified that employee morale was low and that irreparable injury to the franchise system was inevitable, there was no showing that the perceived threat of irreparable harm, if realized, would not be compensable at law. From a review of the record, we cannot say that the trial court abused its discretion in denying the request for preliminary injunctive relief.

We conclude the trial court erred in denying the motion to dismiss with respect to C & M. Since the arbitration clause covers the dispute between plaintiffs and C & M, the motion to dismiss should have been allowed in favor of C & M, and we remand for that purpose. We also reverse the trial court’s refusal to order arbitration as between plaintiffs and C & M and remand for an order compelling arbitration between them. We also remand for a determination of the status of the claims between plaintiffs and Terry Monroe. We affirm the trial court’s denial of C & M’s request for preliminary injunctive relief.

Affirmed in part; reversed in part and remanded.

MAAG and WELCH, JJ., concur.

       The plaintiffs are four franchisees: Stanley Jacob, Lillian Jacob, and S L J Investment, Inc.; William and Darlene Chesterman; Nelda J. Webb; and Peter A. Frese, Jr., Jennifer Frese, and Tayco Entertainment, Inc.