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    CRAIN ENTERPRISES, INC., et al., Plaintiffs-Appellees and Cross-Appellants, v. THE CITY OF MOUND CITY, Defendant-Appellee (Consolidated Grain and Barge Company, Defendant-Appellant and Cross-Appellee).
    Fifth District
    No. 5-87-0296
    Opinion filed October 11, 1989.

      A. Ben Mitchell, of Musick & Mitchell, P.C., of Mt. Vernon, for appellant.
    Harris, Lambert & Wilson, of Marion, and W.C. Spomer, of Cairo, for appellees Crain Enterprises, Inc., James W. Crain, Stephen Crain, Jeffrey Crain, and Tom Jennings.
    Mark H. Clarke, of Cairo, for appellee City of Mound City.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Defendant Consolidated Grain and Barge Company (Consolidated), successor in interest to Behimer & Kissner, appeals from an order of the circuit court of Pulaski County granting injunctive relief to the plaintiffs, Crain Enterprises, Inc., James W. Crain, Stephen Crain, Jeffrey Crain, and Tom Jennings (Crain). The injunction requires defendant Consolidated to remove certain obstructions, more specifically railroad tracks and related structures, which it placed on the west one-half of Commercial Avenue in Mound City, Illinois, because they interfered with plaintiffs’ easement rights. Crain has cross-appealed the finding of the trial court that certain ordinances enacted by defendant Mound City (the city) are valid exercises of its home rule powers.

While the facts of this case are largely undisputed, the procedural history is extensive. We will relate only so much of that history as is necessary for resolution of the issues involved. Crain Enterprises owns a manufacturing facility located at the intersection of Commercial Avenue and First Avenue in Mound City. Its warehouse complex is also on Commercial Avenue, approximately 3,000 feet north of the manufacturing facility. In 1980 defendant Consolidated became interested in constructing a grain elevator and transportation facility in Mound City. The purpose of this facility is to transfer bulk commodities such as grain or fertilizer from truck or rail transportation into barges, or vice versa. Consolidated determined that the only feasible site for this facility included property parallel and adjacent to the west half of Commercial Avenue. In other words, the Consolidated facility abuts Commercial Avenue on the west, while the Crain facility abuts Commercial Avenue on the east. Commercial Avenue had been a public street for over 100 years. The east half of Commercial Avenue contained two sets of railroad tracks which had been in place for over 60 years. Because these tracks were placed on and parallel to Commercial Avenue, the east half of Commercial Avenue was not used as a public thoroughfare, nor was it suitable for such use. Consolidated determined that it would be necessary, if its project was to succeed, to place three additional rail lines on the west half of Commercial Avenue, thereby closing the street to vehicular traffic.

After being approached by Consolidated concerning its need to close Commercial Avenue, the city enacted the three ordinances that are the subject matter of Crain’s cross-appeal. Ordinance No. 589 granted Consolidated a railroad franchise and leased the west 44 feet of Commercial Avenue to Consolidated to implement the franchise. Ordinance No. 612 vacated certain side streets to permit the installation of Consolidated’s grain elevator. Ordinance No. 625 vacated the west 44 feet of Commercial Avenue as a public street.

Prior to passage of the ordinances, James Crain appeared at the city council meetings to object to the closing of Commercial Avenue. Crain’s objections were: (1) that ordinance No. 589 was in violation of the street railway act because it would close Commercial Avenue to vehicles and pedestrians; (2) the ordinances were for a private purpose; (3) the ordinances would injure his company by restricting ingress and egress and by increasing rail traffic on the street; and (4) his own plans for business expansion would be stifled.

Despite the plaintiffs’ objections, on January 6, 1981, Mound City enacted ordinance No. 589, a franchise ordinance granting Consolidated the right to construct and operate railway lines over the west half of Commercial Avenue. Crain filed a complaint on April 1, 1981 (cause No. 81 — CH—2), seeking to enjoin the proposed railway and to have ordinance No. 589 declared invalid. In July of 1981 Consolidated began construction of the railway, and Crain obtained a temporary restraining order on July 14, which was dissolved on July 23. Consolidated resumed construction, and on September 15, 1981, the trial court entered a final order denying a preliminary injunction and dismissing Crain’s complaint with prejudice. Plaintiffs appealed to this court, arguing that they were entitled to amend their pleadings as a matter of right. On November 3, 1982, this court entered an order reversing the trial court and remanding with instructions to permit Crain leave to file an amended complaint. Crain Enterprises, Inc. v. City of Mound City (1982), 109 Ill. App. 3d 1223, 451 N.E.2d 2045 (unpublished Rule 23 order).

After remand, the trial court entered an order consolidating cause Nos. 81 — CH—2 and 81-MR-15. Cause No. 81-MR-15 had been initiated by Bulk Services, a competitor and neighbor of Consolidated, on December 3, 1981. In that complaint Bulk Services alleged that certain actions of Consolidated relating to the removal of a portion of the Conrail track on Commercial Avenue would injure Bulk Services’ business and it requested that the trial court enter a temporary restraining order preventing Consolidated from cutting or otherwise interfering with the railroad track. The Bulk Services cause of action was dismissed based upon a stipulation between the parties. Prior to the dismissal, however, Crain filed a motion to intervene in cause No. 81 — MR—15, maintaining that the actions of Consolidated, as alleged in the Bulk Services’ complaint, would also irreparably damage them. Accordingly, at the time of the order which consolidated cause Nos. 81 — CH—2 and 81 — MR—15, Crain’s claim was the only remaining cause of action in No. 81 — MR—15.

In the meantime, Consolidated had completed the railway and siding as well as other construction, including a seed warehouse, an office building, and two grain silos. In June of 1983, the city passed ordinance Nos. 612 and 625, which vacated certain side streets and the west 44 feet of Commercial Avenue. Plaintiffs amended their complaint in November of 1983 and in December added count II, seeking to have ordinance No. 625 declared void. Crain also instituted an additional lawsuit, cause No. 81 — MC—1, alleging that ordinance No. 612 was ultra vires because it was enacted for Consolidated’s exclusive use and for private purposes. By August of 1984 Consolidated completed construction of its facility. The total cost of the project was approximately $7.5 million. In May of 1985 plaintiffs amended their complaint and added count III, alleging that they had an easement right of access along Commercial Avenue based upon a plat originally recorded in 1856. A second count was also added to the complaint in cause No. 81 — MC—1 in which plaintiffs alleged that they had an easement in the streets and alleys conveyed by ordinance No. 612 pursuant to the same recorded plat.

The trial began on July 8, 1985, and concluded on July 12. On August 11, 1986, the trial court entered its judgment order and found: (1) that ordinance Nos. 589, 612 and 625 were legitimate exercises of the powers of a home rule municipality and served a substantial public purpose and provided a substantial public benefit; (2) Crain had a private right of easement, which arose from the recorded plat, over the vacated streets for ingress and egress to its property abutting those streets; (3) the structures and tracks placed upon the vacated streets constituted a nuisance, subject to abatement, to the extent that they deprived the plaintiffs of their private right to use the streets for ingress and egress to their property, and Consolidated was therefore required to remove the obstructions; (4) that the loss to the public from the issuance of an injunction, including the benefits derived from an annual payroll in excess of $1 million, utility taxes in excess of $15,000, and recapture of $400,000 plus interest in grant monies clearly exceeded the benefit to be derived by the plaintiffs; and (5) the court was not permitted to consider the public interest or balance the equities between the parties because the actions of Consolidated were intentional in starting, continuing, and completing construction after notice by the plaintiffs at public meetings prior to the enactment of ordinance No. 589 that the closing of Commercial Avenue would interfere with Crain’s ability to travel the streets sought to be closed, and in continuing and completing construction of the project after the filing of cause No. 81 — MC—1 on April 1, 1981, challenged the legal authority of the city to enact ordinance No. 589. Defendant Consolidated filed a post-trial motion on September 15, 1986, which was denied by the trial court on March 26, 1987. Consolidated now appeals the trial court’s grant of injunctive relief to the plaintiffs, and the plaintiffs have cross-appealed from the finding by the court that the ordinances in question were valid.

We first address the issue of the validity of ordinance Nos. 589, 612, and 625. As previously stated, ordinance No. 589 granted defendant Consolidated a franchise to construct and operate railway lines over the west half of Commercial Avenue. The plaintiffs contend that ordinance No. 625, which subsequently vacated the west half of Commercial Avenue, effectively repealed ordinance No. 589, notwithstanding a provision in ordinance No. 625 that ordinance No. 589 was to remain in full force and effect. Plaintiffs maintain that a franchise ordinance is incompatible with a vacation ordinance and both cannot cover the same subject matter at the same time. We do not agree. In vacating a portion of Commercial Avenue which abutted Consolidated’s land, ordinance No. 625 effected a conveyance of that land to Consolidated. This conveyance was, by its express terms, subject to the terms of the prior franchise agreement. The franchise ordinance, in turn, set forth the rights, duties, and obligations of the parties with respect to the construction, maintenance, and operation of the railway. We do not find these two ordinances to be incompatible.

Plaintiffs next argue that ordinance No. 589 is invalid because a municipality has no power to grant the exclusive use or control of a public thoroughfare to a private person for any private purpose. (Greenlee Foundry Co. v. Borin Art Products Corp. (1942), 379 Ill. 494, 41 N.E.2d 532; Gerstley v. Globe Wernicke Co. (1930), 340 Ill. 270, 172 N.E. 829; General Electric Ry. Co. v. Chicago & Western Indiana R.R. Co. (1900), 184 Ill. 588, 56 N.E. 963; Ill. Rev. Stat. 1985, ch. 131V4, par. 1 (authorizing the laying of railroad tracks in streets “in such manner as not to unnecessarily obstruct the public use of such street”).) Plaintiffs also contend that ordinance Nos. 612 and 625 are invalid because they were enacted for the private benefit of defendant Consolidated without any showing that the public interest was served by vacation of the streets and alleys. Defendants Mound City and Consolidated maintain, and the trial court found, that the ordinances were a legitimate exercise of the city’s home rule powers. We agree.

Article VII, section 6(a) of the 1970 Illinois Constitution granted broad powers to home rule units of local government:

“Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt.” Ill. Const. 1970, art. VII, §6(a).

Furthermore, article VII, section 6(m), states that the powers and functions of home rule units are to be liberally construed. In City of Carbondale v. Yehling (1983), 96 Ill. 2d 495, 451 N.E.2d 837, the Illinois Supreme Court explained the two-part test to be used in determining the validity of an ordinance passed by a home rule unit. First, the subject matter of the ordinance must pertain to the city’s government and affairs. If it does, then it is necessary to determine whether the ordinance is preempted by State regulation of the subject matter.

We find that the regulation and vacation of streets and alleys located wholly within the borders of Mound City, which do not form a link in a State highway, are matters which pertain to the city’s government and affairs. While we acknowledge that some language in the cases cited by the plaintiffs indicates that the State has an interest in a city’s streets (see People’s Gas Light & Coke Co. v. City of Chicago (1953), 413 Ill. 457, 464, 109 N.E.2d 777, 781 (the “right of the people in the streets and highways of the State *** is a paramount right. The municipality cannot *** perform anything in derogation of this right of the sovereign people, nor may the city permit any uses or encroachments which are unreasonable and against the public interest”); People ex rel. Hill v. Eakin (1943), 383 Ill. 383, 391, 50 N.E.2d 474, 478 (“[t]he fee in streets and alleys is vested in the local municipality in trust for all the citizens of the State and not merely for local use”)), we note that those cases were decided long before the adoption of the 1970 Constitution. We therefore do not find them to be dispositive of the issue before us. Mound City passed the ordinances in question to stimulate economic development, provide an additional tax base for the city, and provide local employment. Plaintiffs do not deny that the city was beset by severe economic problems: an unemployment rate which was three times the State average, substandard housing, and a large percentage of residents with below average incomes. We believe that Mound City acted well within the limits of its home rule powers in enacting ordinance Nos. 589, 612 and 625.

Nor do we find persuasive the plaintiffs’ argument that the ordinances are outside the city’s home rule powers because they deal with real property. Plaintiffs quote the following language in support of this argument:

“[T]he powers of home-rule units relate to their own problems, not to those of the state or nation. Their powers should not extend to such matters as divorce, real property law, trusts, contracts, etc. which are generally recognized as falling within the competence of state rather than local authorities.” Ill. Ann. Stat., 1970 Const., art. VII, §6, Constitutional Commentary, at 23 (Smith-Hurd 1971).

In City of Carbondale v. Yehling (1983), 96 Ill. 2d 495, 451 N.E.2d 837, our supreme court addressed the same argument in the context of Carbondale’s use of its eminent domain power for the purpose of redevelopment of its business district. The court stated:

“We do not believe that the inclusion of real property law in the comments as to the matters to which home rule powers should not extend proscribes a home rule eminent domain ordinance. It is apparent that the language quoted in the context of the comments was a further clarification in leaving to the State those traditional areas of the law that are of statewide concern. Those comments reflect an intention that a divorce decree entered in Chicago will be honored in Waukegan, a contract signed in Evanston will not require additional consideration to constitute a valid contract in Peoria, and what is essential for a valid conveyance of a parcel of land in Joliet is also essential if the land is to be conveyed in Kankakee.” (Yehling, 96 Ill. 2d at 499, 451 N.E.2d at 839.)

Similarly, we do not believe that the regulation and vacation of the streets and alleys of Mound City are matters of real property law “which are generally recognized as falling within the competence of State rather than local authorities.”

We also find that the ordinances in question are not preempted by State regulation of the subject matter. Plaintiffs argue that the placement of railways in streets is governed by section 11 — 90—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 11— 90 — 1) and section 3 of “An Act in regard to street railroads” (Ill. Rev. Stat. 1987, ch. 131V4, par. 3). Both of these statutory provisions were enacted prior to 1970, however, and it is well settled that to restrict the home rule power, a statute must have been enacted subsequent to the adoption of our Constitution, and a home rule unit’s power supersedes any conflicting pre-1970 legislation. County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494, 389 N.E.2d 553; City of Carbondale ex rel. Ham v. Eckert (1979), 76 Ill. App. 3d 881, 395 N.E.2d 607.

Plaintiffs argue most strenuously, however, that ordinance Nos. 612 and 625 are invalid because they were adopted for the private benefit of Consolidated and without any showing that the public interest was served by vacation of the streets and alleys. However, “[i]f there is any substantial showing in the record that the public interest will be served by vacating or altering a street or alley, the ordinance is within the power of the council, no matter how much or how little private parties may be benefited thereby.” People ex rel. Sharp v. City of Chicago (1958), 13 Ill. 2d 157, 160, 148 N.E.2d 481, 483.

It is apparent from the record that the ordinances in question were enacted at Consolidated’s urging to enable it to complete its facility. It is also apparent that Consolidated’s presence in Mound City has provided substantial benefits to its citizens by way of improvements, employment, and increased tax revenues. We believe, therefore, that there is sufficient evidence that the ordinances as enacted were in the public interest (cf. People ex rel. City of Urbana v. Paley (1977), 68 Ill. 2d 62, 75, 368 N.E.2d 915, 921 (finding that city’s plan to issue bonds to finance urban redevelopment satisfied the public purpose requirement of article VIII, section 1(a), of the Illinois Constitution, and stating that the “[stimulation of commercial growth and removal of economic stagnation are also objectives which enhance the public weal”); People ex rel. City of Salem v. McMackin (1972), 53 Ill. 2d 347, 291 N.E.2d 807 (legislation intended to alleviate conditions of unemployment and promote economic development is in the public interest)). In addition, because we find that the ordinances in question are valid legislative acts, we hold that they are not, as plaintiffs contend, arbitrary and unreasonable, nor do they deprive plaintiffs of their property without due process. The plaintiffs have not disputed the sufficiency of the procedures employed in adopting the ordinances. The record shows that all interested persons received notice of the proposed ordinances and were given the opportunity to be heard.

Plaintiffs’ final contention is that ordinance No. 625 did not specifically vacate the portion of Second Street lying east of the west right-of-way line of Commercial Avenue, and therefore, Second Street should remain open. Plaintiffs’ argument apparently refers to the intersection of Second Street and Commercial Avenue. When two streets intersect, the area within the intersection is simultaneously part of each street. Plaintiffs seem to contend that while this area was vacated insofar as it constituted a part of Commercial Avenue, that portion of the street which included Second Street was not vacated. We agree with the trial court that the description of the property to be vacated by the ordinance, by reference to metes and bounds, effectively vacated all streets within the area described. In summary, we affirm the trial court’s finding that ordinance Nos. 589, 612 and 625 are valid.

We now consider the claim of defendant Consolidated that the trial court erred in issuing a mandatory injunction requiring removal of railroad tracks and other structures on Commercial Avenue. The court found that the plaintiffs have a private right of easement over the vacated streets for ingress and egress to their property based upon a plat originally recorded in 1856, and that the tracks and structures placed upon those streets by Consolidated constituted a nuisanee subject to abatement. Defendant Consolidated offers a number of arguments in support of its position that injunctive relief was improper, which we will address shortly. First, however, we consider Consolidated’s argument that the plaintiffs’ claim to a private easement is defeated by Mound City’s use of its discretionary power to regulate its streets. Consolidated contends that the city has the exclusive discretion to regulate the use of public streets without regard to any private easement rights. Defendant points out that an abutting property owner’s right of access to a public street “is subject, nevertheless, to the right of the State to regulate and control the public highway for the benefit of the public even though the abutter may be inconvenienced.” (Ryan v. Rosenstone (1960), 20 Ill. 2d 79, 82, 169 N.E.2d 360, 362.) However, as Consolidated itself admits:

“There are two rules of law as to the rights of property owners in the platted streets: First, the rule(s) in actions against public authorities, which are generally vested by law with discretion in such matters; and, second, the rule(s) in actions against the grantor, his privies, and other individuals — ie., involving private rights.” (Emphasis in original.) Bond v. Dunmire (1984), 129 Ill. App. 3d 796, 806, 473 N.E.2d 78, 85-86.

Consolidated asserts that the plaintiffs’ position is akin to that of the plaintiffs in First National Bank v. City of Chicago Heights (1978), 63 Ill. App. 3d 963, 381 N.E.2d 446, where abutting landowners sought to prevent the city from obstructing their access to Wilson Avenue, a platted and dedicated street which had never been improved or opened by the city. The trial court barred the city from obstructing the plaintiffs’ use of Wilson Avenue and the appellate court reversed.

“The decision to open a street is a discretionary function, assigned by law to a municipality alone. *** There is no showing here that the City abused its discretion in not opening Wilson Avenue, and concomitant to this exclusive discretion, the City had a right to prevent the plaintiffs’ unauthorized opening of and access to it.” First National Bank, 63 Ill. App. 3d at 968, 381 N.E.2d at 450.

Consolidated maintains that since a city has exclusive discretion not to open a street, it should have the same discretion to close a street. The First National Bank court, however, expressly distinguished the situation before it from those cases where a street had already been opened to the public or was in longtime use. More fundamentally, Consolidated refuses to recognize the difference between an action by a private party against a governmental body over the regulation of its streets, and an action by the same private party against another private party for interference with a private easement right. As our supreme court stated long ago:

“ ‘There is an essential and an inherent difference between the private proprietary rights of the abutting owner and the rights of the public as represented by the municipality. The municipal authorities cannot transfer rights which the municipality does not possess, and the easement of access is a private right entirely distinct from that of the public. As the easement of access is a private right, it remains in the owner and does not pass under a grant of the right of occupancy made by the municipal corporation.’ ” Hill v. Kimball (1915), 269 Ill. 398, 406-07, 110 N.E. 18, 22, quoting 2 Elliott, Roads & Streets §891 (3d ed.).

Ordinance No. 589, by which Mound City granted the defendant a railroad franchise, was, as we have held, a valid use of the city’s home rule powers to regulate its streets. The ordinance did not, however, deprive the plaintiffs of their right to bring suit against Consolidated, nor did it purport to settle the interests of private claimants in the street. Whether the city could have built the railroad facility and then leased it to Consolidated, as the defendant suggests, or whether the city could have exercised its eminent domain power to condemn the plaintiffs’ easement rights, are not questions presented by this case. The city did neither of these. Therefore, this case is governed by the general rules concerning interference with the easement rights of an abutting landowner by a private party, as illustrated by Cook v. Mighell Construction Co. (1976), 40 Ill. App. 3d 1032, 353 N.E.2d 43.

In Cook the defendant construction company, which owned property on both sides of a vacated city street, erected a barrier across the street. The trial court ordered the barrier removed, and the appellate court affirmed, finding:

“[W]here the owners’ rights are derived from the platting of a subdivision and where the street or a portion thereof is vacated by the municipality, the property owners abutting the vacated street, and those seeking access thereto, have an easement of access to their properties which is not extinguished by the action of the municipality in vacating the street in question.” Cook, 40 Ill. App. 3d at 1038, 353 N.E.2d at 48.

We do not find Consolidated’s attempt to distinguish Cook, on the basis that in Cook the municipality disagreed with the defendant’s activities, whereas here the city gave its approval, to be persuasive. Cook held that an abutting landowner’s easement of access is not extinguished by the actions of a municipality in vacating a street. We hold that the plaintiffs’ easement of access in the instant case was not extinguished by the actions of Mound City in granting Consolidated a railroad franchise or in vacating Commercial Avenue, absent any affirmative action by the city to condemn the plaintiff’s easement rights. We note parenthetically that, in its briefs, Consolidated does not dispute the trial court’s finding that plaintiffs have a private easement of access by virtue of the 1856 plat. We therefore assume, without deciding, the correctness of the court’s finding, although we are not convinced that this is a settled area of law in Illinois (see Rexroat v. Thorell (1982), 89 Ill. 2d 221, 228, 230, 433 N.E.2d 235, 238-39, cert, denied (1982), 459 U.S. 837, 74 L. Ed. 2d 79, 103 S. Ct. 83 (where the Illinois Supreme Court reversed a finding by the appellate court that the abandonment of a public roadway created a private easement in the road benefiting nearby land because “an easement by implication is not sanctioned if available alternatives affording reasonable means of ingress and egress exist.” In reviewing the authorities, the court stated that “many courts have held that a private easement arises in a public highway following its vacation or abandonment from the mere fact that the landowner’s property abuts thereon. [Citations.] Although title to the land vests in the owner of the fee, it is subject to the rights other landowners may have in the street as the necessary means of access to their property. [Citations.] It is thus recognized that the only easements which survive or arise are those reasonably necessary for means of ingress and egress.” (Emphasis added.))).

We next consider defendant Consolidated’s assertion that the plaintiffs’ claim is barred by the equitable doctrine of laches. Consolidated correctly points out that the doctrine of laches applies not only to the commencement of litigation, but also to the conduct of that litigation.

“ ‘Negligence in the prosecution of a suit after its commencement may bar relief. The mere institution of a suit does not of itself relieve a person from the operation of the rule of laches; if he fails to prosecute his suit diligently the consequences are the same as though no suit had been begun.’ ” Trustees of Schools of Township No. 38 North v. City of Chicago (1941), 308 Ill. App. 391, 400-01, 32 N.E.2d 180, 184, quoting 21 C.J. 215-16, citing Thomas v. Van Meter (1896), 164 Ill. 304.

Defendant’s laches argument is based upon the following series of events:

September 15,1981: plaintiffs’ motion for preliminary injunction is denied and their claim is dismissed on the pleadings,
October 13, 1981: plaintiffs file notice of appeal,
November 3, 1982: this court reverses judgment on the pleadings and remands with instructions to allow plaintiffs to amend their complaint.
November 21, 1983: plaintiffs file amended complaint,
February 5, 1985: defendant files its answer and affirmative defenses to plaintiffs’ amended complaint.
February 7, 1985: plaintiffs file their response to defendant’s affirmative defenses,
February 26, 1985: plaintiffs file various discovery motions,
May 24, 1985: plaintiffs file amended complaint asserting they have an easement based on the 1856 plat.

Consolidated complains that for more than two years following this court’s order remanding the case to allow plaintiffs to amend their complaint, the plaintiffs “did essentially nothing to prosecute their claim.” Defendant claims that in the interim it completed construction of its elevator and drying system, and it was thereby prejudiced by the plaintiffs’ delay. We do not agree.

First, while we do not approve of the delay of approximately one year between the time this case was remanded and the filing of plaintiffs’ amended complaint, we do not find such a delay to be so unreasonable as to bring the equitable doctrine of laches into play. Furthermore, we note that Consolidated did not appear to be in any particular hurry to conclude the litigation. More than a year elapsed between the filing of the amended complaint and Consolidated’s answer to that complaint. Plaintiffs then promptly filed their answer to the defendant’s affirmative defenses and commenced discovery. We find no undue delay by the plaintiffs.

Second, we do not believe that the defendant was prejudiced by any delay. A mere lapse of time will not invoke the doctrine of laches. (Weaver v. Watson (1984), 130 Ill. App. 3d 563, 474 N.E.2d 759.) The defendant must show that the delay “ ‘caused him to pursue a course different from what he would have otherwise taken’ ” (DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 136, 418 N.E.2d 413, 417, quoting People ex rel. Casey v. Health & Hospitals Governing Comm’n (1977), 69 Ill. 2d 108, 115, 370 N.E.2d 499, 502). The construction of the railroad tracks and related structures on Commercial Avenue was completed before this court issued its order remanding the case. Indeed, the defendant sought to have the plaintiffs’ initial appeal to this court dismissed on the ground that completion of the construction had rendered the controversy moot. (Crain Enterprises, Inc. v. City of Mound City (1982), 109 Ill. App. 3d 1223, 451 N.E.2d 1045 (unpublished Rule 23 order).) Throughout the course of this litigation the defendant has evidenced its intent to complete its facility despite the plaintiffs’ objection. We find the defendant’s suggestion that it was prejudiced by the plaintiffs’ inactivity to be disingenuous and without merit.

Defendant Consolidated also contends that the trial court erred in finding it was without discretion to balance the equities of the case. A court of equity will normally balance the hardship imposed on a defendant by a proposed injunction against the benefit to be derived by the plaintiff. (See, e.g., Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 192 N.E.2d 384; Malchow v. Tiarks (1970), 122 Ill. App. 2d 304, 258 N.E.2d 811; Stroup v. Codo (1965), 65 Ill. App. 2d 396, 212 N.E.2d 518.) “[I]f an encroachment is unintentional and the cost of removing it is great, and the corresponding benefit to the adjoining landowner is small and damages can be had at law, courts will ordinarily refuse to grant injunctive relief and not require the offending party to remove the encroachment.” (Terwelp v. Sass (1982), 111 Ill. App. 3d 133, 138-39, 443 N.E.2d 804, 808.) The record indicates that the benefits derived by the plaintiffs from the injunction consist of: (1) eliminating the need for plaintiffs to travel an extra 750 feet between their warehouse and the manufacturing facility; and (2) reducing the frequency of occasional blockage of First Street by trains loading or unloading at Consolidated’s facility. These benefits are small in comparison to the large cost of removing the offending rail lines and structures. Moreover, the trial court found that the balance of the equities “clearly favor[s] the public and the defendants.” The court, however, citing Calhoon v. Communications Systems Construction, Inc. (1986), 140 Ill. App. 3d 1012, 489 N.E.2d 23, believed that it had no discretion to refuse injunctive relief because it found that defendant Consolidated had acted intentionally.

In Calhoon this court held that the trial court erred in not issuing an injunction requiring the defendant cable company to remove its lines and equipment from utility poles located on the plaintiff’s property. The plaintiff had informed the defendant that it was trespassing on his property, but the defendant continued its operation despite the protest. The defendant argued that its encroachment should be deemed unintentional because it believed it had the benefit of the util,ity company’s easement under a “pole lease agreement” with the company, and that its activities were sanctioned by the defendant’s cable franchise agreement with the county. This court stated:

“One who knows of a claim to land which he proposes to use as his own proceeds at his peril if he goes forward in the face of protest from the claimant and places structures upon the land. [Citations.] Mere belief in one’s right, no matter how honestly and reasonably entertained, is no justification for preventing removal of the offending structure, nor is great expense of removal, when there has been a deliberate invasion of a plaintiff’s title to real estate and protest, followed by resort to the courts to ascertain the legal rights of the parties. [Citation.] The encroachment will be deemed deliberate if made after due warning. [Citations.] The duty of the courts is to protect rights, and innocent complainants cannot be required to suffer loss of their rights because of expense to the wrongdoer.” Calhoon, 140 Ill. App. 3d at 1016-17, 489 N.E.2d at 26-27.

Consolidated argues that Calhoon is distinguishable from the instant case because in Calhoon the defendant deliberately invaded the plaintiff’s land despite his claim of trespass. Consolidated asserts, on the other hand, that it had no notice of the plaintiffs’ claimed easement rights until May of 1985, long after it had completed construction. While the defendant admits that the plaintiffs objected to Consolidated’s proposed plan before any construction began, it contends that the plaintiffs’ objections were based on the validity of the proposed ordinances and never included an assertion of private easement rights. Consolidated concedes that it acted at its peril with regard to the plaintiffs’ claim that the ordinances were invalid, but insists that it cannot be deemed to have willfully disregarded rights which were never asserted.

In response to Consolidated’s argument, the plaintiffs maintain that it has always been their position that the defendant’s actions were improper and interfered with the plaintiffs’ rights. Plaintiffs contend that all the allegations necessary to show the existence of an easement in Commercial Avenue were contained in the original complaint.

Our review of the original complaint reveals the following salient paragraphs:

“(4) That Commercial Avenue is a public thoroughfare situated within the corporate limits of the City of Mound City, Illinois, and now is being used and has been used for a great number of years by the general public, including the above-named plaintiffs, together with the officers, employees, customers and patrons of plaintiff Crain Enterprises, Inc.
(5) That the property of the plaintiff, Crain Enterprises, Inc. is bounded on the west by the said Commercial Avenue and on the south by East First Street and on the north by East Second Street, the latter two streets intersect with the said Commercial Avenue.
(6) That plaintiff Crain Enterprises, Inc. has a factory on its property adjacent to Commercial Avenue and East First and East Second Streets aforesaid, and it finds it most convenient to use said Commercial Avenue, East First Street, and East Second Street for access to its property.
* * *
(11) That pursuant to the aforesaid Ordinance, defendant Behimer and Kissner, Inc. is authorized to construct and operate a receiving facility beneath such railroad tracks or siding as aforesaid upon Commercial Avenue at the northwest corner of the intersection of Commercial Avenue and Pennsylvania Avenue. That said receiving facility is to be constructed upon property which has heretofore been used for street purposes. That the aforesaid is an effort on the part of the defendant city to grant a part of a public street to a private corporation for private use and profit and to the detriment of the plaintiffs and the general public.
(12) That the closing of Commercial Avenue aforesaid to motor vehicle traffic and the use of same as a railroad siding and receiving facility by defendant Behimer and Kissner, Inc. constitute a hazard and inconvenience to the travelling public, including plaintiffs.”

We agree with Consolidated that the allegations contained in the plaintiffs' original complaint were not sufficient to apprise the defendant of any claim of a private easement right. No mention is made of the 1856 plat upon which the plaintiffs’ claim is based, nor is the term “easement” ever used. Furthermore, the language of the complaint indicates that the injury to the plaintiffs — the closing of Commercial Avenue — is the same as that shared by the general public, suggesting that plaintiffs are not asserting any private right of access.

Is an objection by the plaintiffs based on one ground, upon which the defendant ultimately prevailed, sufficient notice of all grounds for objection so that the defendant’s action should be deemed intentional? We do not believe so.

“An encroachment is ‘intentional’ if the owner either proceeded to construct after notice of the encroachment, or in ascertaining the boundary or completing the construction failed in the exercise of precaution so as to indicate a wilful disregard of the other owner’s rights.” Calhoon, 140 Ill. App. 3d at 1016, 49 N.E.2d at 26.

In the instant case the basis of the plaintiffs’ objection, that the ordinance allowing construction of the railway was invalid, was rejected by the trial court and this court. The plaintiffs did not assert their claim of a private easement right until long after construction was completed. The defendant therefore did not proceed in the face of notice of encroachment because the plaintiffs did not claim to have a private property interest in Commercial Avenue until May of 1985. “The test of the adequacy of notice is whether it clearly apprises a defendant of the claims to be defended against and whether the defendant, on the basis of the notice given, could anticipate the possible effects of the proceeding.” (Hyon Waste Management Services, Inc. v. City of Chicago (1977), 53 Ill. App. 3d 1013, 1018, 369 N.E.2d 179, 182.) We believe that the notice requirement necessary to deem an encroachment “intentional” should be strictly construed. This is because, under Calhoon, an intentional encroachment removes the trial court’s discretion to balance the equities of the case and prevents it from fashioning a remedy which accommodates the interests of all the parties. Before such a potentially harsh rule may be invoked, we believe that it must be clear from the record that the defendant acted without regard to the plaintiffs’ property interest in the disputed parcel. Defendant Consolidated had no notice of plaintiffs’ claimed easement until construction was complete. Also, given the suggestion in Rexroat v. Thorell (1982), 89 Ill. 2d 235, 433 N.E.2d 235, that such easements survive only when reasonably necessary for ingress and egress, the plaintiffs’ private interest in the street was not readily apparent or easily discoverable. We hold, therefore, that the defendant did not intentionally encroach on the plaintiffs’ easement rights, and the trial court erred in finding that it was without discretion to balance the equities of the case. We note that the trial court found that the equities favor the defendant. We wish to make clear, however, that our holding does not foreclose the trial court, on remand, from issuing some type of injunctive relief. Rather, we hold that the trial court is not required to issue the mandatory injunction sought by the plaintiffs, but is free to use its equitable powers to fashion a remedy which it deems appropriate. If the court finds that injunctive relief is not warranted, it may wish to consider allowing the plaintiffs to amend their complaint to include a count for damages. In view of our decision, we need not address Consolidated’s other arguments.

Based on the above, we reverse the finding of the circuit court of Pulaski County granting plaintiffs Crain Enterprises injunctive relief and remand for further proceedings consistent with this opinion. We affirm the judgment of the circuit court for the defendants Mound City and Consolidated Grain and Barge Company with regard to the validity of ordinance Nos. 589, 612 and 625.

Affirmed in part; reversed and remanded in part.

GOLDENHERSH and RARICK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
      In re MARRIAGE OF FRANK R. GETAUTAS, Petitioner-Appellant, and DOROTHY A. GETAUTAS, Respondent-Appellee.
    Second District
    No. 2—88—1267
    Opinion filed October 2, 1989.

      David J. Letvin and David Mark Stein, both of Letvin & Stein, of Chicago, for appellant.
    Mary K. Manning, of William J. Wylie & Associates, P.C., of Wheaton, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Petitioner, Frank R. Getautas (Frank), appeals from a final order entered by the trial court dissolving his marriage to respondent, Dorothy A. Getautas (Dorothy). On appeal, Frank contends that the trial court erred in finding that (1) no dissipation of marital assets occurred; (2) Frank owed a child support arrearage of $717.39; and (3) Dorothy was entitled to maintenance of $350 per month for three years. We affirm in part and vacate in part.

As the parties are familiar with the procedural history of this case and the voluminous exhibits admitted at trial, we need only set forth that evidence pertinent to resolving each of the issues raised.

Frank and Dorothy Getautas were married in 1968. During their marriage, they had three children, all of whom were emancipated at the time of trial. Although married for 20 years, both parties agree that the marriage was a troubled one. Within the first 10 years of the marriage, Dorothy filed two petitions to dissolve the marriage. The first was filed in 1973 or 1974, and the second in 1977. She voluntarily dismissed both petitions.

In 1977, Dorothy went to work part time as a clerk in a hospital. A few years later, she began working full time at the hospital and has continued to do so at various hospitals, except for a period of time while she was laid off in 1984. In addition to her work at the hospital, Dorothy began working for Frank’s business in 1984 without pay. While working for him, her duties included opening the mail, receiving business checks, and making bank deposits on behalf of the business.

Frank has been employed at G & E Instruments, Inc. (G & E), since 1979. G & E is a close corporation engaged in the resale of industrial control instruments. Frank is the corporation’s sole stockholder. While his income varies depending on the success of the business, the testimony revealed that he took home an estimated $2,000 a month during the marriage.

From the time they were married, Frank handled the financial affairs of the family penuriously. However, in 1981, Dorothy took over the family finances. Subsequently, the lifestyle of the family changed. Dorothy had a number of major improvements made to the marital residence; the children were enrolled in one of the best and most expensive private high schools in the area; gardeners and household help were employed; the children had orthodontia and dental surgeries; and the parties vacationed extensively.

Throughout the marriage there had been periods where the parties separated; however, they had always reconciled. In February 1986, after an argument with Frank, Dorothy left the marital residence and went to live with her family in Minnesota. Frank alleged that it was during this separation that he first discovered financial irregularities in their marital assets and in the accounts receivable at G & E. Frank testified that when he confronted Dorothy with the irregularities she gave no explanation as to where the money had been spent.

At Frank’s request, Dorothy returned to the marital home in July 1986. Frank filed for dissolution in December 1986, and Dorothy moved out of the marital residence the following year. The parties executed a written waiver of the two-year separation requirement contained in section 401 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 401(2)). At an uncontested hearing in August 1988, the trial court found grounds for dissolution based upon irreconcilable differences.

A lengthy trial then ensued regarding the issue of property distribution. The trial court found that the marital property of the parties consisted of the following: (1) the marital residence in Naperville; (2) G & E Instruments, Inc.; (3) a 1981 Audi automobile; (4) a 1984 Trans Am Pontiac automobile; and (5) various household furnishings in the marital home. Further, the court found that Frank owned the following nonmarital property: (1) $8,500 worth of stock which he had to sell in February 1986 to pay for bills and expenses of the parties during 1986 and 1987; and (2) a joint account with his mother. There was no evidence of marital monies having been placed into this account.

In its disposition of the marital estate, the court ordered, in pertinent part, that the marital residence be sold and the proceeds allocated first to reimburse Frank for the $8,500 of nonmarital property he had been forced to liquidate, with the remainder being allocated 60% to Dorothy and 40% to Frank. G & E Instruments, Inc., and the 1981 Audi were awarded to Frank, with Dorothy being awarded the 1984 Trans Am. The court ordered that the household furnishings be sold at public auction absent an agreement between the parties as to an equitable division. Additionally, the court ordered that Frank pay a child support arrearage in the amount of $717.39 and pay Dorothy maintenance of $350 per month for three years.

In distributing the marital property, the trial court specifically found that Dorothy had not dissipated any marital assets. This finding was made despite numerous exhibits presented by Frank in attempting to show that Dorothy liquidated nearly $150,000 by closing many of the parties’ bank accounts and cashing checks made payable to G & E without his knowledge. The court found that virtually all of the alleged acts of dissipation occurred prior to the irreconcilable breakdown of the marriage and, further, that Dorothy had not used any marital funds for purposes unrelated to the marriage. Frank filed this timely appeal.

Section 503(d)(1) of the Act provides:

“In a proceeding for dissolution of marriage *** the court shall assign each spouse’s non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit.” (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(1).)

Dissipation of marital assets occurs when a spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time when the marriage is in serious jeopardy or undergoing an irreconcilable breakdown. (In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 886; In re Marriage of Los (1985), 136 Ill. App. 3d 26, 31.) Whether a given course of conduct constitutes dissipation depends upon the facts of each case. (In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 174.) The trial court’s finding that no dissipation occurred will not be reversed on appeal absent an abuse of discretion. (Petrovich, 154 Ill. App. 3d at 886.) An abuse of discretion occurs only where no reasonable person could take the view adopted by the trial court. In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 31.

At trial, Dorothy admitted to closing many of the parties’ bank accounts and cashing checks made payable to G & E. However, the trial court found that the assets in question were not dissipated. The basis for the court’s finding was twofold. First, virtually all of the alleged dissipation occurred prior to the irreconcilable breakdown of the marriage; and second, Dorothy had not used any marital funds for purposes unrelated to the marriage.

By its very definition, dissipation occurs after the marriage is irreconcilably broken down. The trial court found that the breakdown occurred in the latter months of 1986, either in November or December. Frank contends that the court erred in this finding and argues that the breakdown occurred in 1979, or at least by 1984.

We do not believe that the trial court abused its discretion in the instant case. As to the factual history and breakdown of the marriage, the court had to base its finding upon scant testimony presented at trial. That testimony revealed that the marriage was a troubled one precipitated in great part by the differing attitudes of the parties with respect to the expenditures of marital funds. While there had been periods of separation throughout the marriage, the parties had always reconciled. Indeed, upon Frank’s request, Dorothy returned home after the February 1986 separation. It was not until December 1986 that Frank filed for dissolution. While it is possible to find an irreconcilable breakdown prior to commencement of dissolution proceedings (In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 1019), there is no indication that such finding is warranted here.

The second basis for the trial court’s holding of no dissipation was the finding that no marital funds were used for purposes unrelated to the marriage. The point of inquiry is that period of time after the marriage has irreconcilably broken down. The party who is charged with dissipation is under an obligation to establish by clear and specific evidence how those funds were spent. (In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 886; Smith, 128 Ill. App. 3d at 1022.) General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation. (Petrovich, 154 Ill. App. 3d at 886; Smith, 128 Ill. App. 3d at 1022.) However, whether a given course of conduct constitutes dissipation depends upon the facts of each case. In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 174.

In the case at bar, the marriage suffered an irreconcilable breakdown in November or December 1986. Dorothy admitted that subsequent to this time she took an early distribution of an IRA for a little over $200 and sold a piano to buy Christmas gifts. Although she gave no specific accounting as to the disposition of these assets, other than to say that she spent the money on herself and the children, the trial court found this to be sufficient under the circumstances. We agree. Given the nominal amount in question and the difficulty in proving the expenditures made with this amount, we find that Dorothy sustained her burden and sufficiently established how the funds were spent.

Frank contends that the trial court’s inquiry is not limited to that period of time after the irreconcilable breakdown of the marriage. We note the recent case of In re Marriage of O’Neill (1989), 185 Ill. App. 3d 566, wherein the court repudiated any ruling that says dissipation is limited in time to conduct which takes place during an irreconcilable breakdown of the marriage. We respectfully reject the holding in O’Neill.

In O’Neill, the court determined that payment of an attorney fee in defense of prosecution for a criminal offense was dissipation although the evidence did not indicate that the marriage was undergoing an irreconcilable breakdown at the time of the expenditure. O’Neill, 185 Ill. App. 3d at 567-69.

This ruling calls into issue every expenditure and economic decision from the moment the wedding vows are pronounced. We do not believe that by enacting section 503(d) of the Act, the legislature intended to cause the courts to become auditing agencies for every marriage that falters. The court’s reference in O’Neill to “extravagant purchases of clothing” indicates how easily the dissipation issue could be raised. O’Neill, 185 Ill. App. 3d at 569.

The ramifications of the O’Neill opinion are apparent when one considers the burden of proof applied to dissipation cases. While O’Neill did not address the burden of proof, the general principle is that a person charged with dissipation is under an obligation to establish by clear and specific evidence how the funds were spent. (Petrovich, 154 Ill. App. 3d at 886; Smith, 128 Ill. App. 3d at 1022.) Under O’Neill, each party would have to keep records of all expenditures made from day one, and the court would have to audit their affairs and make a parting adjustment. There is enough strain on the marriage relationship and the courts’ docket without causing the courts to be confronted with having to consider this large amount of time-consuming evidence.

With the advent of detailed discovery, the cost of dissolution proceedings has skyrocketed. Allowing lawyers, or possibly requiring them under a threat of malpractice, to question all expenses and economic decisions of a 20-year marriage (as we have before us) in the hope of uncovering something that could be called dissipation adds an unnecessary and wasteful burden of time and expense especially when no initial triggering event or threshold has been crossed. The relatively few dissipation cases now seen by this court would mushroom given the ease by which a party could allege extravagant purchases of clothes, cars, furniture, golf clubs, et cetera in nearly every dissolution case. It should not be the trial court’s role to account for the various financial inequities found in a “bad” marriage or bad business decisions, and the court should not be required to consider, allegations of “extravagant purchases” prior to the irreconcilable breakdown of the marriage.

“Dissipate” means “[t]o destroy or waste, as to expend funds foolishly.” (Black’s Law Dictionary 425 (5th ed. 1979).) The criminal act in O’Neill may have been foolish, but to defend oneself from prison is not foolish but reasonable. We respectfully decline to follow O’Neill.

While the trial court’s holding in the case at bar was in accord with ours, it further provided as a matter of record that Dorothy’s spending even prior to the breakdown of the marriage was done for marital purposes. The trial court found that the money in question was used to pay for household items, repairs, improvements, entertainment and expenses for the mutual benefit of both parties and their children and to support all of them in the lifestyle Dorothy felt was necessary for the family to which Frank did not object. Although Dorothy could not recall which accounts had been used for which expenditures, nor could she recall the exact cost of many of the expenditures, the trial court found, and we agree, that the explanations provided were sufficiently detailed to find that the funds were used for marital purposes.

Frank contends that it was not until February 1986 that he became aware of the fact that Dorothy was depleting the family savings and cashing G & E checks. The trial court found that Frank’s testimony was not credible. Determinations regarding credibility made by the trial court will not be disturbed unless manifestly against the weight of the evidence. In re Marriage of Los (1985), 136 Ill. App. 3d 26, 32; In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 100.

There is sufficient evidence in the record to support the court’s finding. Given the income of the family, there was no way that the family’s style of living could be financed through any means other than the depletion of the family’s savings. The types of expenditures which Dorothy testified as to having made were ones which Frank could not help but have noticed. Further, G & E is a close corporation of which Frank is the sole stockholder. It is doubtful that he would not periodically review the financial affairs of his business. The above facts support the trial court’s finding that the expenditures were made for marital purposes, and, thus, the trial court did not abuse its discretion in so finding.

The second issue raised on appeal is whether the trial court’s finding of a child support arrearage in the amount of $717.39 should be vacated.

On December 2, 1987, an order was entered calling for Frank to pay Dorothy $239.13 on the first and 15th of each month commencing December 15, 1987, until further order of court. While entitled an “Agreed Order,” it does not contain the signature of either Frank or his attorney.

On December 31, 1987, the trial court entered an order entitled “Support Order” which calls for semimonthly payments of $239.13 on the first and 15th of each month commencing January 1, 1988, and ending June 15, 1988. The order further provides, “[arrearage of $239.13 on Order entered December 2, 1987 is payable through the clerks office eft. 12/15/87.”

On September 8, 1988, the trial court found there was a $717.39 arrearage and ordered Frank to pay it. The trial court reiterated its finding in the final judgment entered December 7, 1988. On appeal, Frank argues that he is not obligated to make the December 15, 1987, payment because neither his signature nor his attorney’s signature appears on the “Agreed Order.” The record supports Frank’s contention that he did not approve the order. In addition, the record does not indicate that Frank received notice of the order, or that he was present when it was issued. Because the “Agreed Order” does not appear to have been approved by Frank, it cannot be enforceable as against him. (First State Bank & Trust Co. v. Stackler (1981), 93 Ill. App. 3d 619, 623.) Therefore, we find that the trial court erred in relying on the order in determining the amount of arrearage. Specifically, the court erred in adding the $239.13 December 15,1987, payment to the amount it found Frank owed.

Frank further contends that he is not obligated to make the two payments that were due in June 1988 under the support order. As a basis for his contention, Frank argues first that the “Agreed Order” entered December 2, 1987, was not by itself effective to continue the support obligation beyond May 18, 1988, the date upon which the Getautas’ youngest two children became emancipated. Second, he alleges that the December 31, 1987, support order setting the June 15 end date was entered without any notice to himself or his attorney and, therefore, is unenforceable.

Because we have already found the agreed order to be unenforceable, we need only address Frank’s second argument. After reviewing the record, we find no evidence to indicate that Frank was given notice prior to the entry of the support order of December 31, 1987, nor does Dorothy allege that notice was in fact given. This court has held that prior to the entry of a new order, a party must give notice that a motion will be presented to the court and that, absent such notice, the order is void. (Vortanz v. Elmhurst Memorial Hospital (1989), 179 Ill. App. 3d 584, 590; Maras v. Bertholdt (1984), 126 Ill. App. 3d 876, 881.) Since Frank did not receive notice of the support order, that order was void. By relying on the void order in determining the amount of the arrearage, we believe that the trial court abused its discretion in ordering Frank to pay the support arrearage. Thus, we find that the trial court erred in its ruling as to child support and hold that there is no outstanding child support arrearage.

The third issue raised on appeal is whether the trial court erred in awarding maintenance to Dorothy in the amount of $350 per month for a period of three years. The propriety of a maintenance award, as well as the granting of such an award, are matters within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Aslaksen (1986), 148 Ill. App. 3d 784, 790.

Under section 504(a) of the Act, a trial court may grant maintenance if it finds that the spouse seeking maintenance (1) lacks sufficient property to provide for his or her reasonable needs, (2) is unable to support himself or herself through appropriate employment, or (3) is otherwise without sufficient income. (Ill. Rev. Stat. 1987, ch. 40, par. 504(a).) The amount and duration of a maintenance award is to be determined after considering all relevant factors, including: (1) the financial resources of the party seeking maintenance; (2) the time necessary to acquire sufficient education or training to enable a party seeking maintenance to find appropriate employment; (3) the standard of living established during the marriage; (4) the duration of the marriage; (5) the age and the physical and emotional condition of both parties; (6) the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance; and (7) the tax consequences of the property division upon the respective economic circumstances of the parties. (Ill. Rev. Stat. 1987, ch. 40, par. 504(b); Aslaksen, 148 Ill. App. 3d at 790.) The trial court is to establish on the record the basis for the maintenance award. Aslaksen, 148 Ill. App. 3d at 790.

In the case at bar, the trial court noted that Frank has a degree in electrical engineering and has operated his own business for a number of years. He was found to be in good health and has demonstrated throughout the years an ability to generate an income more than adequate to support himself.

In comparison, the trial court noted that while Dorothy had some college education, she has worked in entry level jobs throughout the marriage. Thus, it was found that her ability to earn a living is limited to the type of employment she now has absent some further training. As a result, the trial court found that Dorothy has a much more minimal opportunity for the acquisition and accumulation of capital assets than Frank.

We believe that the above facts constitute a sufficient basis for the trial court’s award of maintenance. The trial court properly considered the statutory factors set forth in section 504(b) of the Act and made a just finding. Frank has cited no cases which would lead us to a contrary conclusion. Therefore, we agree with the trial court’s ruling with respect to the award of maintenance.

For the reasons stated, that portion of the trial court’s judgment finding that Frank owed a child support arrearage of $717.39 is vacated; the remainder of the judgment is affirmed.

Affirmed in part; vacated in part.

REINHARD and McLAREN, JJ., concur.


author: JUSTICE REINHARD

text:
      In re MARRIAGE OF SCOTT BRESNAHAN, Petitioner-Appellant and Cross-Appellee, and CHARLENE BRESNAHAN, Respondent-Appellee and Cross-Appellant.
    Second District
    No. 2—89—0017
    Opinion filed October 2, 1989.
    John B. Clarke, of John B. Clarke & Associates, of Arlington Heights, for appellant.

      Michael J. Evans, of O’Brien, Hanrahan, Wojcik & Fay, of Woodstock, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Petitioner, Scott Bresnahan, appeals from an order of the circuit court of McHenry County in post-dissolution of marriage proceedings requiring that visitation between petitioner, the noncustodial parent, and his son Aaron Bresnahan be in the presence of one of the paternal grandparents and subject to supervision by the Illinois Department of Children and Family Services (DCFS) and Wisconsin Social Services. Respondent, Charlene Bresnahan, the former spouse, has filed a cross-appeal; however, as she has not requested any relief from the judgment below in her appellate brief, we dismiss the cross-appeal.

The only issue raised on appeal is whether the circuit court erred in restricting visitation between petitioner and Aaron, after having found that visitation would not seriously endanger the child’s physical, mental, moral or emotional health.

At the outset, we note that petitioner has failed to comply with our supreme court rules in the preparation of his appellate brief. The statement of facts in petitioner’s brief does not sufficiently present the facts necessary to an understanding of the case and does not contain adequate citations to the record as required by Supreme Court Rule 341(e)(6) (107 Ill. 2d R. 341(e)(6)). The argument section of petitioner’s brief contains lengthy excerpts from the proceedings below in violation of Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)). Finally, the appendix does not contain a copy of the judgment appealed from or the notice of appeal as required by Supreme Court Rule 342(a) (107 Ill. 2d R. 342(a)).

Nonetheless, we have thoroughly reviewed the record, which establishes the following facts. Petitioner filed a petition for dissolution of marriage against respondent, Charlene Bresnahan, n/k/a Charlene Johnson, on November 10, 1983. On March 8, 1984, respondent filed a counterpetition for dissolution of marriage. Thereafter, the parties executed a marital settlement agreement providing for, inter alia, distribution of property and custody of the parties’ minor child, Aaron. The agreement provided that upon dissolution of the marriage respondent would have custody of Aaron and would be permitted to reside with Aaron on Washington Island, Wisconsin, until Aaron’s fourth birthday, at which time respondent agreed to move within 100 miles of Woodstock, Illinois. The agreement set forth a schedule for visitation providing petitioner with nine days’ visitation per month. On May 2, 1985, a judgment of dissolution of marriage was entered incorporating the agreement.

Thereafter, on June 9, 1987, respondent filed a petition to modify the visitation and relocation provisions of the agreement. On June 24, 1987, respondent filed a motion to suspend visitation during the pendency of criminal proceedings against petitioner in connection with alleged sexual abuse of other children and, in an amended motion, alleged that an investigation conducted by Court Services of Door County, Wisconsin, disclosed signals that Aaron had been sexually abused. On August 18, 1987, the circuit court entered an order requiring the DCFS to conduct an investigation of possible sexual abuse of Aaron, providing for DCFS supervision of visitation until further order of the court, and continuing the matter until September 29, 1987. On January 8, 1988, respondent also filed an amended petition for visitation.

Numerous continuances were subsequently entered and other motions decided during this time. On October 14, 1988, petitioner filed a petition seeking custody of Aaron and, alternatively, to reinstate and set his visitation rights. Thereafter, on October 24, an evidentiary hearing commenced on the matter of respondent’s January 8, 1988, petition for visitation only. At the conclusion of the hearing, the trial judge acknowledged the pendency of respondent’s petition to modify the settlement agreement filed June 9, 1987, and petitioner’s petition for custody filed October 14, 1988. The trial court found that visitation would not seriously endanger Aaron’s physical, mental, moral, or emotional health and on January 20, 1989, entered the order appealed from setting forth a schedule for visitation requiring the presence of one of the paternal grandparents and providing for supervision by DCFS and Wisconsin Social Services. The court further ordered that visitation be reviewed on August 17,1989.

Although neither party raises the issue of this court’s jurisdiction to review the order of January 20, 1989, we have a duty to consider jurisdiction and dismiss an appeal if jurisdiction is wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440, 490 N.E.2d 1252; Voiland v. Warsawsky (1989), 182 Ill. App. 3d 332, 334, 538 N.E.2d 764.) The appellate court lacks jurisdiction, subject to certain exceptions, to review judgments or orders which are not final. (Flores v. Dugan (1982), 91 Ill. 2d 108, 112, 435 N.E.2d 480; In re Marriage of Spizzo (1988), 168 Ill. App. 3d 487, 492, 522 N.E.2d 808.) To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court need only proceed with execution of the judgment. Kellerman v. Crowe (1987), 119 Ill. 2d 111, 115, 518 N.E.2d 116; In re Marriage of Spizzo, 168 Ill. App. 3d at 492, 522 N.E.2d at 811.

In view of the pending matters in this case, we conclude that we are without jurisdiction to hear this appeal. In In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, our supreme court addressed the appealability of orders determining matters ancillary to a claim for dissolution of marriage. The court stated:

“A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties’ marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. [Citation.] They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim.” (Emphasis in original.) 96 Ill. 2d at 119, 449 N.E.2d at 140.

Leopando involved a judgment of dissolution awarding custody of the parties’ child to the defendant, but reserving the issues of maintenance, property division, and attorney fees for future determination. The court announced a prospective rule that in such circumstances the custody order is not a final judgment as to a separate claim in a dissolution proceeding, and is not appealable under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Leopando, 96 Ill. 2d at 120, 449 N.E.2d at 140.

While our supreme court stated in In re Custody of Purdy (1986), 112 Ill. 2d 1, 5, 490 N.E.2d 1278, that Leopando does not govern post-dissolution proceedings, the court further determined that the kind of piecemeal litigation the decision in Leopando was intended to prevent did not occur in Purdy because the issue of custody and “all related claims” had been decided. (Emphasis in original.) (112 Ill. 2d at 5, 490 N.E.2d at 1280.) Subsequently, in In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 523 N.E.2d 573, the appellate court held that the Leopando reasoning applied where, following a final judgment of dissolution, several post-dissolution petitions addressing interrelated matters are filed. In Stockton, it was held that the related matters in post-dissolution proceedings constitute a single claim and no appeal would lie prior to resolution of all related matters. 169 Ill. App. 3d at 323-24, 523 N.E.2d at 577; see also In re Marriage of Johnson (1989), 187 Ill. App. 3d 94, 97; In re Marriage of Brenkacz (1989), 185 Ill. App. 3d 606, 541 N.E.2d 838.

In the instant case, matters closely related to the issue of visitation are pending. Petitioner’s petition for custody, if granted, would necessarily supersede the order appealed from. Similarly, if the court grants respondent’s petition to modify the judgment of dissolution with respect to visitation and relocation, apparently for reasons independent of the allegations of sexual abuse, the order appealed from may be affected. Accordingly, we hold that the order of January 20, 1989, is not a final order from which an appeal would lie. Therefore, the appeal and the cross-appeal are dismissed.

Appeal and cross-appeal dismissed.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: JUSTICE WOODWARD

text:
    ORLANDO T. CORYELL, Plaintiff-Appellant, v. LOMBARD LINCOLN-MERCURY MERKUR, INC., Defendant-Appellee.
    Second District
    No. 2—88—0522
    Opinion filed September 28, 1989.

      Orlando T. Coryell, of LaGrange, appellant pro se.

    Kenneth Moy, of Kenneth Moy, Ltd., of Clarendon Hills, and Scott D. Bromann, of Speer & Associates, of Wheaton, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, Orlando Coryell, appeals from a judgment of the circuit court of Du Page County, which entered a directed finding for defendant, Lombard Lincoln-Mercury Merkur, Inc., on both counts of the amended complaint.

Plaintiff filed a small claims complaint against defendant on August 17, 1987. He later filed an amended small claims complaint which consisted of two counts. In count I, plaintiff alleged the following. On July 30, 1983, plaintiff brought his Mercury automobile (Mercury) to defendant for repairs. At the time of the repairs, defendant, as part of the contract, promised a lifetime guarantee on the repair, i.e., to wit, “We fix it right, or we fix it free.” In reliance on this lifetime service guarantee, plaintiff permitted defendant to install a rebuilt carburetor in his Mercury. Subsequently, on a number of occasions, plaintiff brought the Mercury to defendant’s shop for repairs which were necessitated by the rebuilt carburetor’s failure to perform properly. At the time the amended small claims complaint was filed, the Mercury still ran poorly, the result of defendant’s failure to fix the car properly.

In count II, plaintiff alleged the following. On June 8, 1987, plaintiff brought the Mercury to defendant’s repair center. Defendant made certain adjustments in the Mercury, which rendered the car unsafe for travel. Plaintiff refused to pay the $615.54 bill charged by defendant which, in turn, refused to deliver the vehicle to plaintiff until the outstanding bill was paid. As a result of the failure to deliver the Mercury, plaintiff failed to attend a final job interview, at which he was to discuss a job offer. Plaintiff subsequently was not hired for the position. Plaintiff alleged suffering stress, fear, and mental anguish, resulting from defendant’s breach of warranty and sought a $500 judgment for said suffering.

Before we discuss the small claims hearing, we note that no court reporter was present, and, thus, no transcript exists. A report of proceedings was apparently reconstructed by the parties and certified by the trial court. The court below, in certifying said report of proceed- ' ings, stated that although plaintiff made no formal offer of exhibits A through J, the court considered said exhibits in reaching its decision. Our reading of the report of hearing shows that indeed plaintiff did formally offer said exhibits and that the trial court improperly failed to rule on the submitted exhibits. For purposes of this appeal, we will treat the tendered exhibits as part of the record on appeal.

At the small claims proceeding on May 1, 1988, plaintiff appeared pro se, and defendant was represented by two attorneys. After plaintiff had rested his case, the court below granted defendant’s motion for a directed finding. Regarding count I (breach of warranty), the court found there were no elements of damage proved and that defendant did not breach its warranty of repair. Regarding count II (consequential damages), the court found that the claimed damages were too remote and were not a reasonably foreseeable consequence of defendant’s alleged wrongdoing.

On appeal, plaintiff raises two issues in his pro se appellate brief, namely, (1) the trial court erred by ruling that no express or implied warranty existed and that defendant had not breached express and implied warranties; and (2) defendant did not legally impound plaintiff’s automobile.

Initially, plaintiff argues that defendant created an express warranty, i.e., a lifetime service guarantee “We fix it right, or we will fix it free,” by making said statements on an advertising brochure and a sign prominently displayed in defendant’s customer service area. Plaintiff asserts that the advertising brochure which was specifically addressed to him and the warranty sign, which plaintiff estimated was 3 feet by 4 feet, induced him to use defendant’s repair services.

At the small claims hearing, plaintiff testified:

“I received this advertising brochure in the mail which I submit to the court as Exhibits B and C. This brochure states ‘We fix it right or we fix it free’. Please note that the Compare Repair Guararantees [sic] chart specifically includes carburetors.
On July 30, 1985 I contracted with Lombard Lincoln-Mercury to have my stationwagon’s carburetor fixed. As I stood at the service writer’s desk I saw a large sign hanging on the wall. It looked like it was about 3 feet by 4 feet in size. The sign said ‘Lifetime Service Guarantee’.
I asked about what the sign meant. I was told it applied only to Ford parts.
I told the service writer the condition of the stationwagon: black smoke comes out the tail pipe but the engine only uses a quart of oil every 2000 miles, the gas mileage on the highway is now 18 miles to the gallon, the engine has a sound like a vacuum leak, the engine snaps and crackles, and fumes come into the car.
The service writer and I discussed whether a simple repair would fix the problems or whether overhauling the carburetor would be the solution. He emphaised [sic] that a fix would not be a permanent solution only overhauling the carburetor would fix it.
I told him to go ahead and rebuild the carburetor.”

On the side of the brochure to which plaintiff’s address is affixed, the following language is found:

“Attention: Lincoln, Mercury and Ford owners . . .
OUR LIFETIME SERVICE GUARANTEE-WE FIX IT RIGHT, OR WE FIX IT FREE!!’ ”

On the portion of the page reserved for the return address is defendant’s name and address.

On the other side of the brochure is the following language:

“The guarantee of a lifetime.
If you currently own a Ford, Mercury, Lincoln or Ford light truck, you can take advantage of the Lifetime Service Guarantee at participating Ford or Lincoln-Mercury dealers. It’s good for as long as you own your car. New or used, no matter what year, no matter where you bought it, no matter how long you’ve owned it, no matter how many miles you drive.
Free parts. Free labor.
Once you pay for a covered repair, that’s it. If that repair needs to be made again, we’ll fix it free. Free parts. Free labor. It costs you absolutely nothing.
Even the fine print looks good.
The list of what’s covered reads like an inventory of the Ford Motor Company Parts Department. In fact, it’s easier to tell you what’s not covered. Only tires, batteries, hoses and belts, brake and clutch linings, upholstery and sheet metal repairs are excluded. It’s a limited warranty for cars in normal use.
Now look at the competition.
Study the chart and you’ll see, for example, that the Lifetime Service Guarantee is the only one that covers engine work (parts and labor on carburetors, fuel pumps, radiators, etc.) for as long as you own your car. No department store, no discount store, no muffler company, no other automaker can say the same.
And it’s a simple truth that no one else offers you the kind of security that comes with the Lifetime Service Guarantee. Perhaps because no other car company or service facility has the kind of confidence in the quality of their repair work that we have.
Quality is Job 1.
Qualify is Job 1 at Ford Motor Company. And we’re just as committed to the quality of our service. That’s why we offer the Lifetime Service Guarantee. So take advantage of the repair guarantee that’s as good as the cars it covers. See us for quality service and the Lifetime Service Guarantee.” (Emphasis added.)

A chart on this page compares the repair guarantees of car company dealers and car repair franchises, e.g., Midas Muffler, and B.F. Goodrich. The chart indicates that on major engine work, including repair of carburetors, Ford and Lincoln dealers offered a lifetime guarantee on parts and labor.

Further, evidence shows that on or about July 30, 1985, plaintiff owned a 1981 Mercury Colony Park station wagon, which he brought to defendant for repairs. The car’s odometer read 43,112 miles. (We observe here that each repair order form used by defendant contains the following language “PARTS AND SERVICE WORK PERFORMED ARE WARRANTED FOR 90 DAYS OR 4,000 MILES WHICHEVER OCCURS FIRST.”) After a mechanical diagnosis, defendant rebuilt the carburetor and replaced the following items: fuel filter, air filter, breather, plugs, transmission filter, transmission gasket, and transmission fluid. Plaintiff paid defendant for the repairs, which totaled $432.93.

On or about August 1, 1986, plaintiff brought his vehicle to defendant for repairs. The car’s odometer read 50,260 miles. Defendant replaced the carburetor, which cost $680.06, plus labor. Defendant also set the engine timing and specification, cleaned the ECK system, serviced the smog valve, and, apparently, replaced the spark plugs. The total bill was $844.66.

On or about February 13, 1987, plaintiff again brought his vehicle to defendant for repairs. The car’s odometer read 53,182 miles. Defendant reset the carburetor at no charge. Defendant also replaced the timing chain and gears, fuel pump, and oil filter, and oil. The total bill was $615.54.

On February 19, 1987, plaintiff wrote Mr. Larry Sherman, president of the defendant, stating that he disputed payment for the February 13, 1987, repair. Plaintiff further stated that he was withholding payment for said repairs “until I get a safe car and a resolution of what lifetime guarantee means.”

On or about February 25, 1987, plaintiff again brought the vehicle to defendant for repairs. The car’s odometer read 53,928. Defendant replaced the carburetor at no charge, pursuant to the 4,000-mile warranty of the August 1, 1986, repair order, even though more than 90 days had elapsed.

On April 11, 1987, plaintiff sent a letter to Mr. Mark Rupprecht, defendant’s service director, stating that the car was not performing “any better now than when [defendant] first rebuilt the carburetor.”

On or about May 13, 1987, plaintiff again brought the vehicle in for repairs stating that the car stalled and its gas mileage was poor. Defendant made repairs at no charge. Finally, on or about June 8, 1987, plaintiff again brought the vehicle in for repairs. Defendant adjusted the idle speed at no charge. The car’s odometer read 57,041. On this date, defendant held plaintiff’s car until he secured cash to pay for the disputed replacement of the timing chain and fuel pump on February 12, 1987. Because defendant withheld the return of his vehicle, plaintiff was three hours late for an interview with a prospective employer, who had allegedly offered a job to plaintiff. Said employer allegedly withdrew the job offer.

After plaintiff rested his case, defendant moved for a directed finding on both counts of the amended complaint. As to count I (breach of warranty), the court directed a finding on it, reasoning that no elements of damage were proved and that defendant did not breach its warranty of repair. In so finding, the following dialogue took place:

“THE COURT: Was the mailing (advertising brochure) attached to the service order[?]
MR. CORYELL: No. How could I attach the sign? What is an inducement?
THE COURT: Unless the advertising is attached it is not binding.”

Further, the court below directed a finding on count II (consequential damages) holding that damages arising from the loss of the alleged job offer were too remote and were not a reasonably foreseeable consequence of defendant’s alleged wrongdoing.

We initially observe in nonjury cases, at the close of plaintiff’s case in chief, defendant is permitted to move for a finding in his favor. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151.) In deciding the motion, the trial court is to weigh the evidence and, if the ruling is favorable to the defendant, enter a judgment dismissing the action. (81 Ill. 2d at 154.) The trial court must consider all the evidence, including any favorable to defendant. A reviewing court shall not reverse the trial court’s decision unless it is against the manifest weight of the evidence.

The court, when ruling on a motion for a directed finding, must determine whether plaintiff made a prima facie case. (81 Ill. 2d at 154.) If a plaintiff fails to do so, defendant is entitled to a judgment as a matter of law. 81 Ill. 2d at 154-55.

To create an express warranty of goods sold, no particular words or forms of expression are necessary, but a positive assertion of a matter of fact by seller at the time of the sale for the purpose of assuring the buyer of said fact and thereby inducing him to make the purchase, constitutes an express warranty. (Beckett v. F.W. Woolworth Co. (1941), 376 Ill. 470.) Moreover, the buyer must show reliance on the seller’s representations in order for an express warranty to exist. Hrosik v. J. Keim Builders (1976), 37 Ill. App. 3d 352.

Plaintiff’s unrebutted testimony shows that he asked the employee at defendant’s service desk about the sign behind the service counter which described the lifetime service guarantee on parts and labor of covered repairs. The service person stated that said guarantee applied only to Ford parts. Apprised that plaintiff was interested in obtaining the lifetime service guarantee, defendant’s service person did not say that plaintiff needed to do anything more than have defendant’s service department make the repair with Ford parts. Moreover, the brochure, which induced plaintiff to bring his car to defendant’s service department, gave no indication that a customer needed to do anything more than to take his Ford, Lincoln, Mercury, or light Ford truck for covered repairs at a participating Ford or Lincoln-Mercury dealer, e.g., the defendant.

Further unrebutted testimony and evidence put forward by plaintiff shows that on August 1, 1986, defendant charged plaintiff for a second repair of the carburetor, which defendant had originally rebuilt on July 30, 1985. The cost of this carburetor repair was $680.06.

Defendant argues that the brochure is merely a solicitation, an invitation to potential customers to inquire further as to the availability and requirements for such lifetime warranty. Yet the brochure gives no requirements for said warranty other than paying for a covered repair on a Ford made car at a participating dealer. Nor did defendant’s service representative inform plaintiff of anything further he must do to qualify for the lifetime service guarantee.

Based upon the record before us, we find that plaintiff established a prima facie case of express warranty and a subsequent breach of said warranty. Plaintiff accepted the brochure’s invitation and took his Mercury to defendant, a participating Lincoln-Mercury dealer. He inquired as to the lifetime warranty and was told it applied only to Ford made parts. Plaintiff, in reliance on the express warranty, had defendant make repairs on his Mercury. Unless defendant can put forward proof that the repairs were not made with Ford parts, thereby negating an element of the express warranty, plaintiff on remand will prevail as to subsequent repairs made specifically regarding the Mercury’s carburetor. The other repairs {e.g., replacing the timing chain) likewise were covered by the lifetime service guarantee, but the record shows that none of those repairs had to be redone by defendant. Thus, plaintiff cannot recover for the other repairs made by defendant.

Regarding plaintiff's other issue, that defendant’s impounding of the Mercury was unjustified, he cites no authority in support of his contention and, thus, waives this argument. Associated Investment Corp. v. Laidlaw Waste Systems, Inc. (1987), 152 Ill. App. 3d 279.

For reasons stated above, we find that the court below erred in granting defendant’s motions for directed finding, and accordingly, we reverse the judgment of the circuit court and remand this cause of action for further proceedings consistent with this opinion.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J., concur.