author: JUSTICE JOHNSON

text:
    J.O. PHILIP LINDAHL, Plaintiff-Appellant, v. THE CITY OF DES PLAINES, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 89—1155
    Opinion filed February 21, 1991.

      Robert V. Gildo, of Chicago, for appellant.
    Mark R. Mayer, of Hubbard, Hubbard, O’Brien & Hall, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, J.O. Philip Lindahl, sought to recover compensation from defendant, the City of Des Plaines, for his work in addition to his normal required hours. Plaintiff appeals the order of the circuit court of Cook County dismissing his claims pursuant to section 2— 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619).

On appeal, plaintiff contends that the trial court erred in dismissing his claims with prejudice and denying his motion to reconsider. The following issues are before this court: (1) whether plaintiff’s brief should be stricken; (2) whether plaintiff’s recovery is barred by the provisions of section 3 — 11—17 of the Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—17); (3) whether plaintiff met his burden of pleading estoppel; and (4) whether defendant’s affidavits provided a basis for dismissal.

We affirm.

Background

Plaintiff brought this action against his former employer, the City of Des Plaines, for breach of oral contracts, breach of contract implied in fact, and breach of contract implied in law (quantum meruit).

Thereafter, defendant filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) based on the statute of limitations, a motion to strike and dismiss pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 615, 2 — 619), and a motion to strike pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Defendant filed a memorandum in support of its motions.

Defendant filed relevant ordinances, appropriations, time sheets, and other materials in response to plaintiff’s production requests which were incorporated by reference into defendant’s section 2 — 619 motion, pleadings, and an affidavit. The affidavit was obtained from Ms. Donna McAllister, the city clerk for the City of Des Plaines on June 29, 1987. The affidavit consisted of the following statement:

“I, Donna McAllister, *** have reviewed all books and records for the period on 1972 to the present, and find that the City Council of the City of Des Plaines has passed no ordinances or resolutions relating to any oral or implied contract regarding J.O. PHILIP LINDAHL as Environmental Control Officer or Code Enforcement Officer.”

On the whole, the affidavit, ordinances, appropriations, and time sheets established that plaintiff was a salaried civil service employee of the City of Des Plaines, and that his employment was authorized by ordinances and appropriations from 1972 to 1985. The City Code of Des Plaines and sections 1 — 15—4, 1 — 15—7, and 1 — 15—8 of the compensation plan and position classification from 1972 through 1985 provided that plaintiff would not be eligible for “overtime” compensatory pay, but could obtain compensatory time off at the discretion of the head of his department. Later, during oral argument before this court, defendant admitted that it had a contract with plaintiff.

In lieu of depositions, plaintiff was allowed to interview employees of the City of Des Plaines and review any municipal ordinances regarding the allegations raised in the complaint. However, plaintiff chose not to conduct the interviews.

Plaintiff was granted leave to file his first amended complaint on February 23, 1988. The court allowed defendant’s motions to dismiss to stand as to plaintiff’s amended complaint. Plaintiff’s first amended complaint alleged that plaintiff was hired by defendant on June 1, 1972, as an environmental officer and was later employed by defendant from June 1, 1972, to December 31, 1985, as an environmental control officer and a code enforcement officer.

The complaint further alleged that plaintiff entered into an oral contract with defendant whereby plaintiff’s work week consisted of 37.5 hours for which he was to be paid an annual salary. Any hours worked in excess of the 37.5 weekly hours would constitute compensatory time, and that plaintiff, subject to the consent of his supervisor, could reimburse himself for compensatory time by taking time off from work equal to the accumulated compensatory time. The complaint also alleged that in the alternative, plaintiff agreed to accept payment for the accrued compensatory time upon the termination of his employment with defendant. The amended complaint further alleged that defendant executed certain documents ratifying and authorizing the terms of the agreement.

The first count of the amended complaint alleged that defendant breached the aforementioned contract. The second count of the amended complaint alleged that defendant, in breaching the contract, violated the Wage Payment and Collection Act (Ill. Rev. Stat. 1987, ch. 48, par. 39M — 1 et seq.). The third count of the complaint alleged that defendant breached the contract implied in fact. The final count of the complaint alleged that defendant’s action was a breach of contract implied in law (quantum meruit) based upon the fact that defendant accepted the benefit of plaintiff’s services without giving plaintiff just compensation, whereby defendant was unjustly enriched. Plaintiff failed to cite any specific ordinance or statutory authority for any of the terms of the alleged contract.

Plaintiff then filed a response to defendant’s motion to strike and dismiss on March 25, 1988. Defendant subsequently filed a reply to plaintiff’s response, attaching various affidavits.

The affidavits were obtained from Ms. Arlene Donahue, the director of human resources and services for the City of Des Plaines; Ms. Donna McAllister, the city clerk of the City of Des Plaines; Mr. Gregory Peters, the comptroller of the City of Des Plaines; and Mr. Duane Bleitz, the former comptroller of the City of Des Plaines. Ms. Arlene Donahue made the following statement by affidavit:

“I, ARLENE DONAHUE, being first duly sworn upon oath

depose and state the following:

* **

■ 2. *** I have personal knowledge of the City employee compensation records (salary records) of all the employees and the Position Classification and Compensation Plans for the City of Des Plaines.

3. I have reviewed the City Code of the City of Des Plaines and the Compensation Plan and Position Classification, speeifically Sections 1 — 15—4, 1 — 15—7 and 1 — 15—8, and the salary positions contained in Section 1 — 15—4 as they applied to Civil Service employees; specifically for the years 1972 through 1985, for PHILIP LINDAHL and his positions of Environmental Control Officer and Code Enforcement Officer.

4. *** [A]s to the issue of Compensatory Time raised by PHILIP LINDAHL’S Complaint and Amended Complaint, PHILIP LINDAHL *** may have been only entitled to compensatory time, hour-for-hour, at the discretion of his department head, but was not entitled to any compensatory pay for the years 1972 through 1975 ***.

5. *** [T]his affidavit is made on affiant’s personal knowledge and, if sworn as a witness, I can and will testify competently to the facts hereinabove stated.”

Ms. Donna McAllister made the following statement by affidavit:

“I, DONNA McALLISTER, being first duly sworn upon

oath depose and state the following:

* * *

2. *** I reviewed all City Ordinances, appropriations, and contracts for the years 1972 through 1985, Position Classification and Compensation Ordinances for the years 1972 through 1985, *** and the City Job Evaluation Committee job descriptions and Certification of Civil Services status for PHILIP LINDAHL ***.

3. *** I have found no other appropriation ordinances, compensation ordinances, or contracts relative to PHILIP LINDAHL for the period 1972 through 1985.

4. *** [TJhis Affidavit is made on affiant’s personal knowledge and, if sworn as a witness, I can and will testify competently to the facts hereinabove stated.”

The affiants Gregory Peters and Duane Bleitz each tendered two separate affidavits. These affidavits are similar in content. In the first affidavit submitted by Mr. Peters and Mr. Bleitz, respectively, both affiants made the following statement:

“2. *** I have personal knowledge of the City employee compensation records (salary records of the employees and the Position Classification Plan and Compensation Plan for the City.

3. I have reviewed the City Code of the City of Des Plaines and the Compensation Plan and Position Classification, specifically Sections 1 — 15—4, 1 — 15—7, and 1 — 15—8, and the salary positions contained in Section 1 — 15—4 as they applied to Civil Service employees; specifically for the years 1972 through 1985, for PHILIP LINDAHL and his positions of Environmental Control Officer and Code Enforcement Officer.

4. *** [A]s to the issue of Compensatory Time raised by PHILIP LINDAHL’s Complaint and Amended Complaint, PHILIP LINDAHL *** [was probably] entitled to compensatory time, hour-for-hour, but was not entitled to any compensatory pay for the years 1972 through 1985 ***.

5. *** [T]his affidavit is made on affiant’s personal knowledge, and if sworn as a witness, I can and will testify to the facts herein above stated.”

In the second affidavits submitted by Mr. Peters and Mr. Bleitz, respectively, the affiants made the following identical statement:

“2. *** [F]or the years 1972 through 1975, the City of Des Plaines had no account entitled “Contingency Account” or “Interfund Account” but did have an account called “Salary Adjustment Account.” This account was used for the limited purpose of paying yearly salary step adjustments; and/or cost of living adjustments. This account was authorized for no other purpose and it has been used for no other purpose and it has been used for no other purpose for the years 1972 through 1985.

3. No other appropriation account existed for the purpose of paying compensatory pay to the position of Environmental Control Officer or Code Enforcement Officer, or specifically for PHILIP LINDAHL for the years 1972 through 1985.

4. *** [T]his affidavit is made on affiant’s personal knowledge and, if sworn as a witness, I can and will testify competently to the facts hereinabove stated.”

On August 18, 1988, the trial court granted defendant’s motion to dismiss, stating that it was based “specifically [upon] the provisions of chapter 24, section 3 — 11—17 of the Illinois Revised Statute.” The trial court also ruled with respect to the claim based upon section 3 — 11—17 that there was no evidence in the record of “any legal action taken by the City, through its corporate officers, that would support [the] alleged contract which the plaintiff claims [exists] in this case.” Finally, the trial judge stated that one “can’t have a contract with a municipality for the payment of money unless [there is an authorization by ordinance].” The court then gave plaintiff 30 days to file a motion to reconsider.

Plaintiff filed a motion to reconsider on September 20, 1988. Plaintiff filed a brief in support of his motion to reconsider citing Eertmoed v. City of Pekin (1980), 83 Ill. App. 3d 362, on December 9, 1988. Defendant thereafter filed a memorandum in opposition to plaintiff’s motion to reconsider. The court denied plaintiff’s motion to reconsider on March 29,1989. This appeal followed.

Opinion

I

Defendant first contends that plaintiff’s brief should be stricken because plaintiff’s brief fails to establish jurisdiction over this case pursuant to Illinois Supreme Court Rule 341(e)(4) (134 Ill. 2d R. 341(e)(4)). Defendant maintains that plaintiff failed to include a section entitled “Jurisdiction” and a statement of the jurisdictional basis of this appeal. Plaintiff, in reliance upon Illinois Supreme Court Rule 301, counterargues that his brief should not be stricken. 134 Ill. 2d R. 301.

Illinois Supreme Court Rule 341(e)(4) reads as follows:

“(e) The appellant’s brief shall contain the following parts in the order named:

* * *

(4) ***

(i) In a case appealed *** as a matter of right from the Appellate Court, a brief statement under the heading ‘Jurisdiction’ of the jurisdictional grounds for the appeal ***.” 134 Ill. 2dR. 341(e)(4)(i).

Illinois Supreme Court Rule 301 reads, in pertinent part, as follows:

“Every final judgment of a circuit court in a civil case is appealable as of right. The appeal is initiated by filing a notice of appeal. No other step is jurisdictional.” 134 Ill. 2d R. 301.

We find that plaintiff’s brief should not be stricken. Rather than setting forth a brief statement of the basis for this appeal under the heading “Jurisdiction,” plaintiff set forth a brief statement of the basis for this appeal under the heading “Nature of the Action.” Under this heading, plaintiff wrote the following statement: “Appeal from a Final Order of Dismissal pursuant to Section 2 — 619 of the Illinois Civil Practice Act dismissing employment contract claims against Plaintiff’s former employer, the Defendant, CITY OF DES PLAINES.” Appeals from final orders of dismissal are the proper basis for an appeal to the appellate court of Illinois pursuant to Rule 301. (134 Ill. 2d R. 301.) Therefore, plaintiff’s error was one of form and not of substance.

Plaintiff has asked this court for permission to correct this error. Plaintiff petitions this court instanter for leave to amend his brief to include the following language:

“JURISDICTION

This is an appeal from a Final Order of Dismissal pursuant to Section 2 — 619 of the Illinois Civil Practice Act dismissing employment contract claims against Plaintiff’s former employer, the Defendant CITY OF DES PLAINES.”

Accordingly, we grant plaintiff leave to amend his brief.

II

We now turn our attention to plaintiff’s claim that the trial court improperly dismissed this case and that his recovery is permitted under section 3 — 11—17 of the Municipal Code. (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—17.) Plaintiff also relies upon Westbrook v. Middlecoff (1901), 99 Ill. App. 327, County of Coles v. Goehring (1904), 209 Ill. 142, McGovern v. City of Chicago (1917), 281 Ill. 264, Great Lakes Dredge & Dock Co. v.. City of Chicago (1933), 353 Ill. 614, Allen v. Treat (1966), 72 Ill. App. 2d 466, and Eertmoed v. City of Pekin (1980), 83 Ill. App. 3d 362.

Defendant maintains that the trial court properly granted its motion to dismiss pursuant to section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) because a municipal employee is not entitled to any compensation or benefits absent an express authorization and appropriation by an ordinance approved by a majority vote of the city counsel pursuant to the Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—17). Defendant also relies upon May v. City of Chicago (1906), 222 Ill. 595, Gathemann v. City of Chicago (1914), 263 Ill. 292, Selby v. Village of Winfield (1929), 255 Ill. App. 67, Harry Goldstine Realty Co. v. City of Chicago (1940), 306 Ill. App. 556, Chicago Patrolmen’s Association v. City of Chicago (1974), 56 Ill. 2d 503, Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, and South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361.

Municipalities derive their governmental authority from the Constitution and statutes of the State of Illinois. The Municipal Code provides as follows:

“The corporate authorities of each municipality may pass all .ordinances and make all rules and regulations proper or necessary, to carry into effect the powers granted to municipalities ***.” Ill. Rev. Stat. 1987, ch. 24, par. 1 — 2—1.

The Municipal Code requires that an appropriation be made by the municipal corporate authorities before the municipality may enter into a contract with another party. Section 8 — 1—7, in relevant part, provides as follows:

“[N]° contract shall be made by the corporate authorities, or by any committee or member thereof, and no expense shall be incurred by any of the officers or departments of any municipality, whether the object of the expenditure has been ordered by the corporate authorities or not, unless an appropriation has been previously made concerning that contract or expense. Any contract made, or any expense otherwise incurred, in violation of the provisions of this section shall be null and void as to the municipality, and no money belonging thereto shall be paid on account thereof.” (El. Rev. Stat. 1987, ch. 24, par. 8— 1-7.)

(See also Selby v. Village of Winfield (1929), 255 Ill. App. 67, 73; South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361, 368.) The Municipal Code further provides that all expenditures must be approved by the city council. The Code states:

“The passage of all ordinances for whatever purpose, and of any resolution or motion (1) to create any liability against a city or (2) for the expenditure or appropriation of its money, shall require the concurrence of a majority of all members then holding office on the city council, including the mayor, unless otherwise expressly provided by this Code or any other act governing the passage of any ordinance, resolution, or motion ***.” Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—17.

In addition, this court has found that “any contract made without a prior appropriation is null and void.” (Chicago Patrolmen’s Association v. City of Chicago (1974), 56 Ill. 2d 503, 508.) A municipality cannot be obligated to honor an “alleged implied contract which is ultra vires, contrary to statutes or charter provisions, or contrary to public policy.” (Emphasis in original.) South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361, 366.

The Illinois Supreme Court has held that persons dealing with a municipal corporation are “charged with the knowledge of the limitations of the power of that corporation for any contract attempted to be entered into by any of its officials.” (May v. City of Chicago (1906), 222 Ill. 595, 599-600.) “Everyone is presumed to know the extent of the powers of a municipal corporation ***.” Selby v. Village of Winfield (1929), 255 Ill. App. 67, 77.

The Illinois Supreme Court has decided several cases which are analogous to the case at bar. For example, in the case of May v. City of Chicago (1906), 222 Ill. 595, plaintiff, a salaried municipal employee, sought “overtime” compensation for additional work. The Illinois Supreme Court held that “[p]laintiff was a regular employee of a municipal corporation at a regular salary, and he is bound to perform the duties of his office for the compensation fixed, even though additional duties are imposed upon him.” (May, 222 Ill. at 599.) The supreme court held that plaintiff was not entitled to additional pay based upon quantum meruit, and that “[n]o appropriation having been made for this extra work of the plaintiff, it is impossible by any act of the city officials to create a liability against the city for the work.” May, 222 Ill. at 599.

In the similar case of Gathemann v. City of Chicago (1914), 263 Ill. 292, our supreme court held that a municipal employee’s compensation claim cannot be based upon any contract, implied or otherwise, and that the employee’s compensation was limited to the amount appropriated by ordinance. In Gathemann, the plaintiff was a civil service employee whose position, salary, and time off were enumerated in a municipal ordinance. Mr. Gathemann was given a new position which, by ordinance, did not provide for compensation for “overtime” work. Although plaintiff’s “overtime” reports were approved by the head of his department, and the chairman of the finance committee promised payment, the city refused to compensate plaintiff in excess of the salary authorized in the ordinance. In denying plaintiff’s claim, our supreme court stated that “[t]he rule is settled that a person accepting a public office with a fixed salary must perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of those duties even though the salary may be inadequate. *** Whenever he considers the compensation inadequate he is at liberty to resign.” Gathemann, 263 Ill. at 295-96.

Recently, in Chicago Patrolmen’s Association v. City of Chicago (1974), 56 Ill. 2d 503, the Illinois Supreme Court denied plaintiffs, who were police officers, “step” and “longevity” salary increases because such compensation was not provided for in the city’s appropriations ordinance. Plaintiffs based their right of recovery upon an implied in fact contract with the city, and equitable estoppel, citing their reliance upon the police superintendent’s representations with respect to the salary increases. The court found that plaintiffs’ claim failed because no prior appropriation was made. Chicago Patrolmen’s Association, 56 Ill. 2d at 507-08.

Plaintiff relies upon Westbrook v. Middlecoff (1901), 99 Ill. 327. We find that plaintiffs reliance upon Westbrook is inappropriate because Westbrook is older than, and contrary to, the more recent aforementioned precedent upon which we rely.

In addition, plaintiff relies upon Eertmoed v. City of Pekin (1980), 83 Ill. App. 3d 362. We are not persuaded by this case. The court in Eertmoed found that a municipality may enter into enforceable employment contracts with sanitation workers even though there was no authorization for said contracts. This case is an aberration because it is contrary to the relevant provisions of the Municipal Code (Ill. Rev. Stat. 1987, ch. 24, pars. 1 — 2—1, 8 — 1—10, 3 — 11—17) and recent case law.

Furthermore, we find plaintiff’s reliance upon County of Coles v. Goehring (1904), 209 Ill. 142, McGovern v. City of Chicago (1917), 281 Ill. 264, and Great Lakes Dredge & Dock Co. v. City of Chicago (1933), 353 Ill. 614, inappropriate. These three cases are distinguishable from the case at bar. Goehring, McGovern, and Great Lakes Dredge & Dock Co. all involve contractors that made bids for construction contracts and sought payment pursuant to those contracts. In addition, proper legislative appropriations were made for payment of the contractors in these cases.

In Goehring, Mr. Goehring brought an action of assumpsit against the County of Coles concerning a contract entered into between them in 1898 for the reconstruction and repair of the Coles County court house. The Coles County committee on grounds and buildings for the board of supervisors solicited bids for the repair work, and Mr. Goehring’s bid was accepted. “In December, 1898, a resolution was adopted by the board *** for repairing the court house, *** and the county clerk directed to draw and deliver *** an order [to Goehring] ***.” Goehring, 209 Ill. at 149.

The McGovern case also involved a contractor and his action to recover for payment for services rendered. M.H. McGovern, as assignee of the M.H. McGovern Company, brought an action of assumpsit to recover compensation for work and materials furnished pursuant to a 'written contract entered into between the city and the McGovern Company to repair asphalt pavement. The McGovern Company made a bid for the construction work, and the mayor and the superintendent of streets accepted the bid. An appropriation bill was adopted in February of 1908 for the repair of streets. “It was clearly the intention of the city council, in the appropriation ordinance of February 21, 1908, to appropriate the license fees collected to the repair of streets, and this was what the statute provided should be done with such fees.” McGovern, 281 Ill. at 279.

Similarly, in Great Lakes Dredge & Dock Co. v. City of Chicago (1933), 353 Ill. 614, the plaintiff, Great Lakes Dredge Co., brought an action in assumpsit to recover a sum for materials and labor furnished which were found necessary to aid in the completion of the contract between plaintiff and the City of Chicago for the straightening of the south branch of the Chicago River. In July of 1926, the City of Chicago adopted an ordinance for straightening the south branch of the Chicago River. The ordinance authorized the commissioner of public works to enter into contracts necessary to carry out the ordinance. The commissioner of public works entered into a contract with plaintiff pursuant to the ordinance. The ordinance constituted an appropriation for payment of plaintiff.

McGovern, Goehring, and Great Lakes Dredge & Dock Co. are distinguishable from the case at bar because defendants in those cases made legislative appropriations to pay the plaintiffs. In the instant case, defendant made no appropriation for “overtime” pay for plaintiff.

Plaintiff’s reliance upon these three cases is also inappropriate because construction contracts between a municipality and a contractor are unique and distinct from employment contracts between a municipal entity and a salaried employee. Construction contracts are unique because construction work is uncertain in that after the parties involved have agreed upon a price for the construction work, costs may escalate during construction and the contractor may encounter unforeseen circumstances which make the performance of the construction project more costly. (See, e.g., McGovern v. City of Chicago (1917), 281 Ill. 264, 275-76; Great Lakes Dredge & Dock Co. v. City of Chicago (1933), 353 Ill. 614, 619-20.) Plaintiff in the instant case was a salaried employee. Therefore, it is more appropriate for this court to rely upon available precedent involving employment contracts rather than cases involving construction contracts.

Finally, we find plaintiff’s reliance upon Allen v. Treat (1966), 72 Ill. App. 2d 466, inappropriate. Allen is a case involving a maintenance contract. We do not find this case persuasive because the court based its finding upon Great Lakes Dredge & Dock Co. v. City of Chicago (1933), 353 Ill. 614, which involved a construction contract. Allen v. Treat (1966), 72 Ill. App. 2d 466, 477.

The contention of appellant that he is entitled to additional compensation cannot be sustained. Plaintiff bears the burden of showing that he is entitled to additional compensation because a relevant appropriation was made. (Harry Goldstine Realty Co. v. City of Chicago (1940), 306 Ill. App. 556, 561.) Plaintiff has failed to meet this burden. The record reveals that defendant made no appropriation for additional compensation pay for plaintiffs “overtime” work. While plaintiff was employed, the City of Des Plaines ordinances and budget appropriations provided that plaintiff was a civil service employee who was paid a yearly salary. Plaintiff’s normal work week was 37.5 hours. Any time worked in excess of the 37.5 hours was considered “compensatory” or “overtime.” However, plaintiff was not eligible for “overtime” compensation based upon his job classification. Plaintiff could be given time off, when conditions permitted, at the discretion of the head of his department. However, there was no provision or authorization for the City of Des Plaines to pay plaintiff for his compensatory time.

Under the circumstances in the instant case, Illinois case law makes it clear that plaintiff is not entitled to receive compensation pay for his “overtime.” Plaintiff’s agreement with his supervisor whereby he was to obtain payment for his “overtime” is null and void. (Chicago Patrolmen’s Association v. City of Chicago (1974), 56 Ill. 2d 503, 508.) No liability may be imposed upon defendant because defendant cannot be held liable for an implied contract which is contrary to statutory provisions. (South Suburban Safeway Lines, Inc. v. Regional Transportation Authority (1988), 166 Ill. App. 3d 361, 366; see also May v. City of Chicago (1906), 222 Ill. 595, 599.) Plaintiff, upon dealing with defendant, was presumed to have known of the limitations of defendant’s liability for any contract which its officials attempted to enter into with plaintiff. (May, 222 Ill. at 599; Selby v. Village of Winfield (1929), 255 Ill. App. 67, 77.) Plaintiff was bound to perform his duties for fixed compensation even if additional duties were later imposed upon him. May, 222 Ill. at 599; Gathemann v. City of Chicago (1914), 263 Ill. 292, 295-96.

We find that plaintiff’s recovery is barred by section 3 — 11—17 of the Municipal Code. (Ill. Rev. Stat. 1987, ch. 24, par. 3 — 11—17.) A municipal employee is not entitled to additional compensation or benefits absent an express authorization and appropriation by an ordinance.

Ill

Defendant contends that plaintiff has failed to meet his burden of pleading estoppel. Defendant relies upon Eertmoed v. City of Pekin (1980), 83 Ill. App. 3d 362, Rose v. Rosewell (1987), 163 Ill. App. 3d 646, and Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927. Plaintiff maintains that he has met his burden of pleading estoppel because documents provided by the defendant clearly illustrate that defendant appropriated funds for the employment of plaintiff. Plaintiff fails to cite any authority in support of his position.

The doctrine of equitable estoppel is a doctrine by which “a person may be precluded by his act or conduct *** from asserting a right which he otherwise would have.” (Black’s Law Dictionary 483 (5th ed. 1979).) “Estoppel will generally arise where a party by his statements or conduct leads another to do something [that] he would not have done but for the statements or conduct of the other, and where the one guilty of the expressions or conduct should not be allowed to deny his utterances or acts to the loss of the innocent party.” Bank of Pawnee, 166 Ill. App. 3d at 938.

“While the doctrine of [equitable] estoppel has been [applied] to municipal corporations [citation], a finding of estoppel against a public body is not favored [citation].” (Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927, 938; see also Rose v. Rosewell (1987), 163 Ill. App. 3d 646, 651.) Equitable estoppel should not be invoked against a public entity “except ‘under compelling circumstances,’ where to do so would not defeat the operation of public policy.” Bank of Pawnee, 166 Ill. App. 3d at 939, quoting People ex rel. Brown v. State Troopers Lodge No. 41 (1972), 7 Ill. App. 3d 98, 105.

The doctrine of equitable estoppel may be invoked against a municipality if two prerequisites are met: “(1) an affirmative act on the part of the municipality; and (2) the inducement of substantial reliance by the affirmative act.” (Bank of Pawnee, 166 Ill. App.. 3d at 939; see also Rose, 163 Ill. App. 3d at 651.) Although fraud is not a requisite element of equitable estoppel, “it is [also] essential [that] there be fraudulent intent on the part of the party against whom estoppel is sought.” Bank of Pawnee, 166 Ill. App. 3d at 939.

The affirmative act which induces plaintiff’s reliance must be “[an] act[] of the municipality itself, such as legislation, rather than the unauthorized acts of a ministerial officer. [Citation.] Normally, a city or village cannot be estopped by an act of its agent beyond the authority expressly conferred upon that official, or made in derogation of a statute.” Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927, 939; see also Rose v. Rosewell (1987), 163 Ill. App. 3d 646, 651.

This court has previously held that a municipality cannot be estopped by an act of its agent beyond the authority specifically conferred on the agent. (Bank of Pawnee, 166 Ill. App. 3d at 939.) Moreover. “a contract made in violation of section 8 — 1—7 is void ab initio and cannot be enforced by estoppel or ratification.” (Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, 291.) Section 8 — 1—7 of the Municipal Code provides, in relevant part, that “no contract shall be made by the corporate authorities *** unless an appropriation has been previously made concerning that contract or expense. Any contract made, or any expense otherwise incurred, in violation of the provisions of this section shall be null and void as to the municipality.” Ill. Rev. Stat. 1987, ch. 24, par. 8 — 1—7(a).

We find that the circumstances of this case are not substantially compelling as to warrant the application of estoppel against defendant. In the case at bar, plaintiff is seeking to estop defendant from maintaining that the agreement between plaintiff and his supervisor is unenforceable. Defendant may be classified as a public body. The City of Des Plaines is “but a creature of the State and may exercise only those powers that the legislature [has] expressly or impliedly delegated.” (Rose v. Rosewell (1987), 163 Ill. App. 3d 646, 651.) Therefore, estoppel may be applied against defendant if defendant performed an affirmative act that plaintiff substantially relied upon and the act in question induced plaintiff’s cause of action. Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927, 939; Rose, 163 III. App. 3d at 651.

In the instant case, the doctrine of estoppel may not be invoked against defendant for two reasons. First, the representations of plaintiff’s supervisor were not acts of the City of Des Plaines itself. These representations were acts of defendant’s agent, who exercised no control over the city payroll. (Rose, 163 III. App. 3d at 651.) Second, plaintiff did not detrimentally rely upon his supervisor’s representations because knowledge of the limitations of defendant’s liability with respect to any contract which its officials attempt to enter into was imputed to plaintiff. (Bank of Pawnee, 166 Ill. App. 3d at 940; Selby v. Village of Winfield (1929), 255 Ill. App. 67, 77; May v. City of Chicago (1906), 222 Ill. 595, 599.) Furthermore, plaintiff has not presented any evidence of fraudulent intent on the part of defendant.

In addition, a municipality cannot be estopped by an act of its agent beyond the authority specifically conferred on the agent. (Bank of Pawnee v. Joslin (1988), 166 Ill. App. 3d 927, 939.) Nothing in the record indicates that plaintiff’s supervisor was granted the authority to enter into a contract with plaintiff to compensate plaintiff with “overtime” pay.

Furthermore, we have noted that contracts made in violation of section 8 — 1—7 are void ah initio and unenforceable pursuant to the doctrine of estoppel. (Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, 291.) The contract in the instant case was void ab initio because a contract was made while no appropriation was previously made for that contract or expense. See Ligenza, 133 Ill. App. 3d at 291; Ill. Rev. Stat. 1987, ch. 24, par. 8 — 1—7.

Accordingly, we rule that plaintiff has failed to meet his burden of proving estoppel. We therefore rule that defendant was not estopped to deny the enforceability of the contract.

IV

Finally, plaintiff contends that defendant’s affidavits do not provide a basis for dismissal pursuant to Illinois Supreme Court Rule 191 (134 Ill. 2d R. 191) and the Code of Civil Procedure (111. Rev. Stat. 1987, ch. 110, par. 2 — 619). Plaintiff also alleges that defendant’s motion to dismiss utilized defendant’s affidavits to establish an affirmative defense while plaintiff was not afforded the opportunity to obtain depositions from the affiants, or an evidentiary hearing in which it is incumbent upon the municipality being sued to prove affirmative defenses. Plaintiff relies upon Woods v. Village of La-Grange Park (1936), 287 Ill. App. 201, James Anderson Co. v. City of Highland Park (1934), 276 Ill. App. 327, Kelly v. Chicago Park District (1950), 341 Ill. App. 37, and Eertmoed v. City of Pekin (1980), 83 Ill. App. 3d 362.

Defendant maintains that there was a sufficient basis for dismissing plaintiff’s complaint because he failed to cite an ordinance approving his alleged oral contract, and defendant clearly showed that the relevant ordinances barred compensation for plaintiff’s overtime work. Defendant relies upon Supreme Court Rule 191 (134 Ill. 2d R. 191), section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619), and Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286.

The Code of Civil Procedure makes the following provision:

“(a) Defendant may, within the time for pleading, file a motion for dismissal *** upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
* * *
(9) That the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.
* * *
(c) If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing facts obviating the grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny it if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.” Ill. Rev. Stat. 1987, ch. 110, pars. 2-619(a)(9), (c).

Supreme Court Rule 191 provides in pertinent part:

“Affidavits *** submitted in connection with a motion for involuntary dismissal under section 2 — 619 of the Code of Civil Procedure *** shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.” 134 Ill. 2d R. 191(a).

In the instant case, plaintiff contends that the affidavit of Ms. Donna McAllister filed in response to his original complaint does not address the allegations in his first amended complaint. Plaintiff also contends that defendant fails to prove that plaintiff is barred from recovery based upon the contents of the affidavit.

We find that there was a sufficient basis for dismissing plaintiffs complaint because he failed to cite an ordinance approving his alleged oral contract. Defendant’s motion to dismiss was properly granted pursuant to section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619) because plaintiff’s claim was barred by sections 3 — 11—17 and 8 — 1—7 of the Municipal Code (Ill. Rev. Stat. 1987, ch. 24, pars. 3— 11 — 17, 8 — 1—7). Therefore, plaintiff’s claim was “barred by other affirmative matter avoiding the legal effect of or defeating the claim.” Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9).

Section 2 — 619(a) permits the use of affidavits. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a).) The affidavits filed on March 25, 1988, complied with Supreme Court Rule 191. (134 Ill. 2d R. 191.) First, the affidavits were based upon the personal knowledge of the affiants. It is sufficient that “the affidavit[s] here expressly state[ ] that the affiantfs] had personal knowledge of the allegations contained in the motion to dismiss, and that if called as a witness, [each] affiant could competently testify to the matters asserted therein.” (Downers Grove Associates v. Red Robin International, Inc. (1986), 151 Ill. App. 3d 310, 317.) In addition, the affidavits set forth with particularity the basis of defendant’s defense, i.e., that no appropriation or other approved compensation pay for plaintiff’s “overtime” work. Furthermore, these affidavits did not cite any inadmissible conclusions of law and fact. Finally, defendant submitted certified copies of all material including ordinances and budget appropriations.

We also find that the trial court properly dismissed this case because courts must accept an affidavit as true if it is uncontradicted by a counteraffidavit or other evidentiary materials. “When facts within an affidavit are not contradicted by counteraffidavit, they must be taken as true notwithstanding the existence of contrary unsupported allegations in the adverse party’s pleadings.” (Ligenza v. Village of Round Lake Beach (1985), 133 Ill. App. 3d 286, 293.) Defendant’s affidavits regarding the lack of appropriation for overtime pay are uncontradicted by plaintiff, because plaintiff did not tender evidence or a counteraffidavit alleging that there was an appropriation or ordinance authorizing compensation pay for plaintiff’s “overtime” work.

With respect to plaintiff’s allegation that the affidavit of Ms. McAllister filed on June 29, 1987, failed to address the allegations in his first amended complaint, we find that Ms. McAllister’s affidavit complied with Supreme Court Rule 191 (134 Ill. 2d R. 191) because plaintiff’s initial complaint made general allegations that a contract with defendant existed. The initial affidavit of Ms. McAllister simply countered plaintiff’s general allegations. Plaintiff’s complaint was not specific; therefore, Ms. McAllister’s affidavit is not required to be more specific.

Finally, plaintiff, in reliance upon Woods v. Village of La-Grange Park (1936), 287 Ill. App. 201, and Kelly v. Chicago Park District (1950), 341 Ill. App. 37, has alleged that defendant’s affidavits constituted an affirmative defense, and that the trial court improperly failed to allow plaintiff the benefit of obtaining depositions from the affiants, or an evidentiary hearing.

We find plaintiff’s reliance upon these cases inappropriate. Plaintiff cites Woods as a case in which this court ruled that defendant’s affidavits were used to establish an affirmative defense to plaintiff’s actions, and that it is incumbent upon a municipality being sued to prove the affirmative defense. In fact, the court’s ruling was limited to the issue of judicial notice of the content of an affirmative defense. The court ruled that before judicial notice could be taken of an affirmative defense, the subject matter of the affirmative defense must be properly presented to the court. Woods, 287 Ill. App. at 210.

However, plaintiff’s reliance upon Woods is inappropriate for a more fundamental reason, the reason being that Woods was ruled upon by this court twice. The appellate court of Illinois rendered a second Woods decision known as Woods v. Village of LaGrange Park (1939), 298 Ill. App. 595. Plaintiff fails to note the existence of the latter case, which modifies the aforementioned law upon which plaintiff relies. (Woods, 298 Ill. App. at 616.) We believe that it would have been more appropriate for plaintiff to rely upon or at least cite to the latter decision.

Furthermore, plaintiff relied upon Kelly v. Chicago Park District (1950), 341 Ill. App. 37, which was later reversed by the Illinois Supreme Court in Kelly v. Chicago Park District (1951), 409 Ill. 91.

Finally, the facts do not substantiate plaintiff’s contention. The record shows that defendant did not preclude plaintiff from conducting discovery. The trial court granted leave to plaintiff to interview employees of the City of Des Plaines and to review any existing documents, and defendant agreed. Plaintiff chose not to do so and, therefore, cannot claim to have been denied the right to discovery.

We, therefore, find that the affidavits conformed to the requirements of Rule 191 (134 Ill. 2d R. 191(a)) and that the trial court properly relied upon the affidavits in considering the merits of defendant’s motion to dismiss. Accordingly, we find that there was a sufficient basis for dismissing plaintiff’s complaint.

For the aforementioned reasons, we affirm the trial court’s decision.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    DOUGLAS THEATER CORPORATION, Plaintiff-Appellee, v. CHICAGO TITLE AND TRUST COMPANY, as Trustee, et al., Defendants-Appellants.
    First District (5th Division)
    Nos. 1 — 88—1859,1—89—1365 cons.
    Opinion filed February 22, 1991.
    — Rehearing denied March 21,1991.

      Jack J. Herman, P.C., and Herbert C. DeYoung, both of Chicago, for appellants.
    John August Cook, P.C., of Chicago (John August Cook and Mercedes Matías, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

This opinion addresses two appeals and a cross-appeal from orders entered in a suit for specific performance involving certain real property located in Chicago, Illinois. A third appeal involving the same parties and concerning certain adjoining property has already been decided by another division of this court. See Douglas Theater Corp. v. Gold Standard Enterprises, Inc. (1989), 188 Ill. App. 3d 573, 544 N.E.2d 1053.

The facts of the present case are as follows.

Pursuant to trust agreement No. 32967, dated May 1, 1974, American National Bank and Trust Company of Chicago (American National), as trustee, was titleholder to certain property located at the intersection of Wellington and Clark Streets in Chicago. A portion of this property once housed the old Ivanhoe Theater and Restaurant, a one-time favorite haunt of Chicago’s young college students who would traverse the catacombs underneath the establishment and reminisce of the days when knighthood was in its flower. This property, however, was later extensively damaged by fire. Another portion of the property included unimproved land used for a parking lot (which was the subject of the related appeal at 188 Ill. App. 3d 573).

On May 22, 1978, American National entered into a contract with Gold Standard Enterprises, Inc. (Gold Standard), an Illinois corporation owned by Harold Binstein, to lease a portion of the above-described property. The 24-page lease provided that American National was demising to Gold Standard the premises, commonly known as 3000 N. Clark Street, but legally described as follows:

“Lots 1, 2, 3, and the East 15 feet of Lot 4 in Dam and Warner’s Subdivision of Block 3 in Knoke and Gardner’s Subdivision of the 20 acres North and adjoining the South 30 acres of the West 1!z of the Northwest V4 of Section 28, Township 40 North, Range 14 East of the Third Principal Meridian, in Cook County, Hlinois.” The reference for this legal description was apparently a plat of survey dated May 28, 1974, which depicted the property as it existed when the old Ivanhoe Theater and Restaurant occupied the premises. The demise to Gold Standard actually involved a portion of what was labeled parcel 1 on this survey. See diagram 1.

The demise included improvements “presently or hereafter constructed” on the parcel, as well as easements, rights and appurtenances to the parcel, but made no reference to basement areas or the elevations to which the lease was restricted. The lease contained language indicating that Gold Standard was accepting possession of the premises “as is,” with the understanding that “the fire-damaged building upon the premises” was to be restored and converted into a commercial retail space, housing an establishment for the sale of “liquor, food, tobacco products and related and sundry merchandise.” The architectural plans and specifications for these renovations were not yet provided, but were to meet with the approval of both parties. The lease was to be in effect until September 30, 2003.

Pursuant to this lease agreement, renovations to the property were made, and a liquor store, owned and operated by Gold Standard Liquors, Inc., an Illinois corporation controlled by Harold Binstein, occupied the premises. Chalet Internationale, Inc., another Illinois corporation controlled by Harold Binstein or Gold Standard, directly or indirectly, may also be in possession of the leased premises, in whole or in part.

On March 15, 1982, American National entered into a contract with Douglas Theater Corporation (Douglas), to lease the parcel of land adjoining the property leased to Gold Standard. The 85-page lease agreement recited that American National was demising to Douglas the premises commonly known as 750 W. Wellington in Chicago, but described in exhibit A as:

“Lots 4 (except the East 15 feet thereof) 5, 6, and 7 in Dam and Warner’s Subdivision of Block 3 in Knoke and Gardner’s Subdivision of the 20 acres North and adjoining the South 30 acres of the West Vz of the Northwest xk of Section 28, Township 40 North, Range 14 East of the Third Principal Meridian, in Cook County, Illinois. (The parties recognize that the easterly line of the Premises may be somewhat irregular and may vary slightly at the basement, first floor and roof levels, but the interior of the Premises are to be as presently divided by existing walls.) Also included is all of Lessor’s existing and future right, title and interest in and to that portion of the public alley shown in Appendix ‘A’ attached hereto as outlined in red and shaded in orange. Said public alley extends approximately 218 feet in an east-west direction between Clark Street and Halsted Street approximately 142 feet (center line) north of Wellington Street in Chicago, Illinois.”

The lease further provided, in section l(a)(i), that the above legal description was “subject to and to be replaced by a precise legal description of said parcel of land (and portion of public alley) as set forth in a plat of survey to be prepared in accordance with Illinois Land Survey Standards by a duly registered Illinois land surveyor at Lessor’s expense and delivered to Lessee within forty-five (45) days from and after the date of delivery of possession of the Premises to Lessee.”

The lease also demised “all structures and improvements presently or hereafter constructed on such parcel and all of Lessor’s [American National’s] right, title, and interest, if any, in and to all structures and improvements lying on and over the portion of the public alley referred to in said Exhibit A,” (emphasis added) as weH as all easements, rights and appurtenances relating to such parcel. This provision was included since the existing fire-damaged building encroached upon the entire 14-foot alley to the north of lots 6 and 7. Certain fixtures and furnishings, collectively referred to as “equipment,” were also demised, but are not involved in the appeal.

In a separate paragraph, entitled “Bar Area Basement,” the following provision was included:

“Notwithstanding anything to the contrary contained in this Lease, the space now leased to Gold Standard Enterprises, Inc. and situated beneath the portion of the Premises formerly used for the sale and dispensing of alcoholic beverages (which space is herein called ‘the Bar Area Basement’) is not included in the demise granted in this lease, such that during the Term, Lessee shall have no obligation or liability with respect to the Bar Area Basement, but the Bar Area Basement shall be included in the Property subject to the option to purchase the Property as set forth in Section 10 (captioned ‘Purchase Option’) of this Lease. The Bar Area Basement shall be more particularly described on a plat of survey to be prepared at Lessor’s expense by a duly licensed land surveyor and delivered to Lessee or its agent within forty-five (45) days of delivery of possession hereunder to Lessee.”

Additionally, the lease indicated that the property was being transferred “as is” and that renovations and alterations were to be made in accordance with architectural plans already submitted and approved, so that the property could be used for the operation of a theater. The lease was to be in effect until June 30, 1987, unless terminated sooner by Douglas’ exercise of the option to purchase, as provided for within the lease.

On April 2, 1982, a plat of survey was drawn, as required by the lease agreement. This survey was drawn by Christian H. Froemke after an on-site “walk through” of the property. The liquor store on the adjacent property was already in existence but the property to be surveyed, referred to as “the theater area” was still in a burned-out condition. Although this survey was supposed to depict the property subject to the lease agreement, Mr. Froemke was not given a copy of the lease agreement, but rather was directed by Mr. Jack Frigo, a real estate agent for Bennett and Kahnweiler, regarding the parcels to be included in the survey. Basically, Mr. Froemke was told to follow the face of the walls of the buildings already existing on the property, both above and below ground.

On this plat of survey, the property was divided into two parcels, parcel 1 and parcel 2. Essentially, parcel 1 consisted of lots 5, 6, and 7 of Dam and Warner’s subdivision. However, the eastern boundary of this parcel was delineated by the walls of the basement area located beneath the tract. Parcel 2 depicted those portions of lots 3, 4, and 5 of Dam and Warner’s subdivision above what was apparently considered the “Bar Area Basement.” The eastern boundary of the parcel was delineated by following the face of the interior walls at the first-floor level. The words “not included” were written across the portion of the public alley upon which the building encroached, located to the north of Parcel 1 (above lots 6 and 7 and a portion of lot 5) and also on the lower limit of parcel 2, i.e., the basement area located beneath parcel 2. See diagram 2.

On August 8, 1983, Harold Binstein purchased the property formerly owned by American National, subject to the Gold Standard and Douglas leases and Douglas’ option to purchase. Title to this property was placed in Chicago Title and Trust Company (Chicago Title), as trustee of trust No. 1083978, with Harold Binstein as sole beneficiary.

In December 1986, Douglas sought to exercise the purchase option contained within the 1982 lease agreement. At this time a dispute arose over the interpretation of the lease agreement and the premises which were subject to the purchase option, based upon discrepancies between the lease and the legal description of the property as indicated by the plat of survey drawn in April 1982. Chicago Title, as trustee, and Harold Binstein, as beneficiary, refused to convey certain portions of the property, to which Douglas believed it was entitled, namely, the basement beneath parcel 2 as shown in the April 1982 survey and the northern one-half of the “public alley,” which, at the time of closing on May 14, 1987, had been vacated by the City of Chicago. Douglas proceeded with the closing on the sale of the property under a reservation of rights and then on September 23, 1987, filed a complaint for specific performance, asking that the court enforce the purchase option contained within the lease and require the named defendants to convey the disputed property.

On January 28, 1988, Douglas moved for partial summary judgment with respect to the alley issue. Defendants filed a cross-motion for partial summary judgment, and on May 15, 1988, a final judgment was entered, granting Douglas’ motion and denying defendants’ motion for partial summary judgment. The order directed Chicago Title and Harold Binstein to “take all necessary steps to convey” the property described as follows:

“The North of the 14 foot vacated alley lying North of the North Line of Lots 5, 6, and 7 and North of that portion of the North Line of Lot 4 which lies West of a point on the North Line of Lot 4 which is 82.87 feet East of the Northwest Comer of said Lot 7 (as measured along the North Lines of said Lots 4, 5, 6,and 7) in Dam and Warner’s Subdivision of Block 3 in Knoke and Gardner’s 30 Acres of the West % of the Northwest 1k of Section 28, Township 40 North Range 14 East of the Third Principal Meridian in Cook County, Illinois.”

After proceedings were held on the remainder of Douglas’ complaint for specific performance, judgment was entered in Douglas’ favor. The final order, as modified after hearing motions for reconsideration, directed defendants to convey to Douglas the property as follows:

“(a) That portion of Lot 4 in Dam and Warner’s Subdivision in Section 28, Township 40 North, Range 14 East of the Third Principal Meridian, lying between the East Line of Parcels 1 and 2 on the survey dated January 21, 1988, admitted in evidence as Joint Exhibit 7, and the center line of the existing west wall of the store building operated by Gold Standard Enterprises Inc., and extending from the North Line of Parcel 1 extended East to the center of the North End of said wall to a point in the South end of said wall, which is 19.25 feet North of the South line of Parcel 2. Both Parties shall be bound by the Party Wall Agreement on pages 63-69 of the ‘Douglas Theater Lease’, in evidence as Joint Exhibit 2, as to said party wall.

(b) That portion of Parcel 2, shown on the survey dated January 21, 1988, admitted in evidence as Joint Exhibit 7, at or below elevation 22.29 and marked on said survey as ‘Not Included’, subject to the existing Gold Standard lease (Joint Exhibit 1) covering that portion of said basement East of the West Line of the East 15 feet of Lot 4, shown on Joint Exhibit 7 as consisting of 248.8 square feet.”

The order denied Douglas’ request for attorney fees and costs, but reserved judgment on the issue of damages, pending any appeals.

In a notice filed June 15, 1988, defendants appealed the May 19, 1988, order granting Douglas’ motion for partial summary judgment (appeal No. 1 — 88—1859), and in a notice filed May 23, 1989, defendants appealed the order dated March 9, 1989, as modified by the order dated April 27, 1989 (appeal No. 1 — 89—1365). Douglas filed a notice dated June 1, 1989, cross-appealing the March 9, 1989, order as modified by the April 27, 1989, order, asking this court to reverse the trial court’s denial of attorney fees and costs. After hearing oral argument on the first appeal (1 — 88—1859), the appeal was consolidated with the second appeal for review by this court. As noted earlier, the matter of damages remains pending in the lower court.

THE ALLEY

On this issue defendants contend that summary judgment should not have been granted in Douglas’ favor. They argue that the evidence, namely the Douglas lease together with the April 2, 1982, plat of survey, clearly established that conveyance to Douglas of fee title to the public alley to the north of the theater property, including that portion of the alley upon which the theater building encroaches, was not required and that summary judgment should have been granted in their favor. In support of this notion defendants point to the fact that the description of the premises in the Douglas lease included the statement that it was “subject to and to be replaced by” a more precise description and that the more precise description, supplied by the April 1982 survey, contained the words “not included” across the portion of the alley upon which the building encroached, thereby indicating, according to defendants, the intention of the owner to exclude this land from the demise. Alternatively, defendants seek reversal and remand for further proceedings, contending that a genuine issue of material fact was raised by the conflicting inferences or ambiguity created by the above-mentioned documents, which should have precluded summary judgment.

While we agree with defendants’ statement of the law, that summary judgment is a drastic remedy to be awarded with caution (Gatlin v. Ruder (1990), 137 Ill. 2d 284, 293, 560 N.E.2d 586), we cannot agree that the trial court erred in granting summary judgment in Douglas’ favor.

Summary judgment is available to a party, as a matter of law, if the pleadings, taken together with any depositions, admissions or affidavits, demonstrate that there is no genuine issue of material fact. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) Yet the mere allegation that a material fact exists does not create such an issue or avoid the imposition of summary judgment. (Turner v. Chicago (1980), 91 Ill. App. 3d 931, 415 N.E.2d 481.) In the present case, there was no dispute over the validity of the lease and option contract, but rather a dispute over the interpretation of the document. Interpretation of a lease is a question of law when the terms are clear and unambiguous. (Pioneer Trust & Savings Bank v. Lucky Stores, Inc. (1980), 91 Ill. App. 3d 573, 414 N.E.2d 1152.) An ambiguity is not created because the two parties cannot agree. An ambiguity occurs only when the language is reasonably susceptible to more than one meaning. (W.H. Lyman Construction Co. v. Village of Gurnee (1985), 131 Ill. App. 3d 87, 475 N.E.2d 273.) Whether an ambiguity exists in a lease contract is a question of law to be determined by the court. (The Advertising Checking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App. 3d 140, 427 N.E.2d 1039.) Here, the trial court found that no ambiguity existed. We agree.

The language of the Douglas lease, which contained the option to purchase, clearly and plainly included in the demise the owner’s existing and future rights to the entire alley to the north of the property leased to Douglas. To find an ambiguity one must go outside the lease document, to the April 1982 survey, where a portion of the public alley is marked “not included.” However, even if we were to consider this extrinsic evidence, defendants can provide no plausible explanation for the inclusion of the term “not included” on the survey, especially since the term only appeared on that portion of the alley upon which the building encroached.

The surveyor who drew up the April 1982 plat of survey testified that he was instructed to exclude the alley. But this instruction apparently came from the realtor and the surveyor did not have access to a copy of the lease. Thus, whether the inclusion of the phrase “not included” was meant to express the owner’s desire to exclude the alley from the demise is pure conjecture, and one which contravenes the clear and express terms of the lease contract.

The lease defined the premises as “the parcel of land described in Exhibit A hereto, subject to and to be replaced by a precise description of said parcel of land (and portion of the public alley) as set forth on a plat of survey to be prepared.” Exhibit A then described the premises with reference to a plat of survey made in 1974 (see diagram 1), although it was known by the parties to the lease that this plat of survey was outdated and imprecise because it did not take into account the changes made to the property as a result of the 1978 Gold Standard Lease, in which the property to the east of the Douglas property was demised. The new plat of survey was necessary to depict and describe the premises as it then existed, taking into account the irregular easterly line of the premises. However, nothing in the lease indicates that the new plat of survey was intended to alter the substance of the lease agreement or in any way define its terms with respect to the premises being demised.

Furthermore, exhibit A stated unequivocally that “(a)lso included [in the demise] is all of Lessor’s existing and future right, title and interest in and to that portion of the public alley shown in Appendix ‘A’ attached hereto as outlined in red and shaded in orange. Said public alley extends approximately 218 feet in an east-west direction between Clark Street and Halsted Street approximately 142 feet (center line) north of Wellington Street in Chicago, Illinois.” The diagram contained in appendix A to exhibit A clearly and plainly demonstrated that whatever rights the owner possessed in the entire public alley to the north of the property being leased to Douglas were contemplated by the parties as part of the demise subject to the purchase option. The only hindrance to the outright demise of this portion of the property, in either the lease or the option to purchase, was the fact that the alley was “public” so that right, title and interest to the alley was held, not by Lessor, but by the City of Chicago. This reasonably explains the purpose for the term “not included” on the survey. We note, too, that American National obligated itself, in exhibit F to the lease, to use its best efforts to secure the vacation of the public alley if for any reason the encroaching theater building interfered with Douglas’ quiet enjoyment of the property.

On May 13, 1987, after the exercise of the option on December 22, 1986, but prior to the closing on July 10, 1987, the alley was vacated pursuant to Chicago city council ordinance. The purchase option irrevocably granted Douglas the option to purchase “the Property [earlier defined as ‘the Premises’ and ‘the Equipment’] AS IS in the condition existing on the date the option herein is exercised and closed.” When Douglas exercised its option to purchase in December 1986 it became the titleholder, in equity, to the property (Hanson v. Duffy (1982), 106 Ill. App. 3d 727, 435 N.E.2d 1373) and to any existing or future right, title or interest of the record titleholder in the public alley. The public alley was then vacated and, pursuant to statute and case law (Ill. Rev. Stat. 1985, ch. 24, par. 11 — 91—2), title was vested in the then owner of the abutting property. In this way, Douglas became titleholder in equity to the southern one-half of the vacated alley, while Chicago Title, as trustee, became record titleholder to the alley, subject to the Douglas lease and purchase option. Consequently, at the time of closing on July 10, 1987, Douglas became entitled to all of the right, title and interest in the entire alley. For the above reasons, we must conclude that the trial court’s grant of partial summary judgment to Douglas with respect to the alley issue was correct and so we affirm that order.

THE BASEMENT

There was a trial on the basement issue in the court below wherein evidence was presented and arguments heard. The trial court then ruled in favor of Douglas, ordering Chicago Title as trustee to convey to Douglas certain parcels of land, including the basement area underneath parcel 2. See diagram 2.

Defendants now contend on appeal that the trial court’s ruling was erroneous because the manifest weight of the evidence established that conveyance to Douglas, under the option to purchase contained within the Douglas lease, was limited to the property legally described in the plat of survey dated April 2, 1982, thereby excluding the entire basement area beneath parcel 2 of that survey. Defendants further argue that specific performance should not have been available to Douglas since the terms of the lease and option contract were not clear, certain, and definite.

Additionally, defendants contend that the trial court erred when on April 27, 1989, it ordered paragraph 2 of its prior order dated March 9, 1989, vacated and stricken, thereby reversing its order that Douglas re-convey to Chicago Title, as trustee, the 248.8 square feet of land located to the east of the “15-foot line” and above the elevation of 22.29 feet. Finally, defendants contend that the trial court’s decision, upon reconsideration, to reserve ruling on the question of damages pending the outcome of the appeals was erroneous since Douglas never sought, prior to trial, severance of the issues of liability and damages and then never produced any evidence at trial on the issue of damages.

Douglas, on the other hand, in addition to responding to the issues raised by defendants, argues in its cross-appeal that the trial court erred by denying it attorney fees and costs.

First we shall consider whether specific performance was available to Douglas. Whether specific performance may be granted is a decision left to the sound discretion of the trial court, which shall not be overturned unless it is against the manifest weight of the evidence. (Mearida v. Murphy (1982), 106 Ill. App. 3d 705, 435 N.E.2d 1352.) A court, however, may not award specific performance of a contract for the sale of land unless the contract is clear, definite and complete, and on its face it describes the tract of land to be sold. (Calvary Temple Assembly of God v. Lossman (1990), 200 Ill. App. 3d 102, 557 N.E.2d 1309.) However, a description will be deemed sufficient, even when it admits of some doubt, if it furnishes the means of identifying the land. Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 384 N.E.2d 512.

In the present case the Douglas lease agreement was clear, definite and complete. It provided in section 10 for an irrevocable option to purchase “the Property AS IS in the condition existing on the date the option herein is exercised and closed.” The “Property” was defined in section 1(b) as the “Premises” and “Equipment” and the premises, defined in section 1(a) of the lease, consisted of “the parcel of land described in Exhibit A hereto, subject to and to be replaced by a precise description of said parcel of land.” As earlier noted, exhibit A described the parcel of land in terms of the 1974 plat of survey, which the parties knew to be imprecise and was, therefore, to be replaced by a new plat of survey. The new plat of survey dated April 2, 1982, did provide a new, more precise description of the land subject to the lease and purchase option. This plat of survey divided the land subject to demise into two parcels: parcel 1, which contained no express limitation as to elevation; and parcel 2, which expressly limited the demise to the above-ground portion of the parcel, with the term “not included” written on that portion of parcel 2 below the elevation of 22.29 feet Chicago city datum.

Relying on the above descriptions, one might conclude that the demise subject to the purchase option was limited to the parcels described in the April 2, 1982, survey. However, such a conclusion would ignore the import of section 2, entitled “Bar Area Basement,” wherein the lease provided that a certain basement portion of the “Premises” was “not included” in the demise subject to the lease but was to be included in the “Property” subject to the option to purchase.

Section 10 of the lease stated that the bar area basement would be “more particularly described on a plat of survey to be prepared.” Although it is true that the plat of survey could have specifically denoted the area termed “Bar Area Basement,” which would have eliminated all doubt as to the meaning of that term, it seems clear, when looking at the lease agreement and April 1982 survey as a whole, that the portion of parcel 2 below the elevation of 22.29 feet Chicago city datum, which is described as “not included” on the survey, is the basement portion of the premises, previously described as bar area basement, which was not subject to demise in the lease agreement but subject to the option to purchase. It is the only basement area situated underneath the Douglas premises to which Douglas had no access during the term of the lease and which was used by Gold Standard pursuant to its own lease. This is what the trial court found, and we do not believe this decision to be against the manifest weight of the evidence. We, therefore, conclude that the bar area basement was described with sufficient particularity and that Douglas was entitled to specific performance. The trial court properly ordered defendants to convey to Douglas parcel 2 in its entirety, both above and below the surface of the ground.

It should be noted here that the conveyance to Douglas of the lower limit of parcel 2 is subject to whatever occupancy rights Gold Standard may have under its lease. As stated in section 10(d)(vi) of the lease, Douglas is entitled to an assignment of lessor’s right, title and interest to the lease with Gold Standard Enterprises with respect to the bar area basement, but that in lieu of such assignment, Lessor could elect to (a) construct a masonry wall within the “open passageway between the Bar Area Basement and the premises otherwise occupied by Gold Standard,” or (b) credit Douglas $1,500. We construe this to mean that lessor (now Chicago Title, as Trustee) may elect to: (1) assign to Douglas its right to a partial lease with Gold Standard, covering the bar area basement, so that Gold Standard may continue its occupancy of the lower limit of parcel 2 until the year 2003, with payment to Douglas of a portion of its rent; (2) credit Douglas $1,500 for this assignment; or (3) construct a masonry wall to define the boundary of parcel 2 below the surface of the ground.

We next consider whether the trial court erred when on April 27, 1989, it reversed its order of March 9, 1989, and caused paragraph 2 of the earlier order to be vacated and stricken. Paragraph 2 of the March 9,1989, order stated:

“Defendants are granted specific performance, and plaintiff is required within 30 days hereof to convey to Chicago Title and Trust as trustee in fee simple the following real estate: that part of Parcel 2 on Joint Exhibit 7 above elevation 22.29, east of a line extending the center line of the existing west wall of the Gold Standard store, referred to in paragraph 1(a) above, from the south end of said wall, at a point 19.25 feet north of the south line of Parcel 2, to the south line of Parcel 2.”

First of all we would like to comment on an internal inconsistency in defendants’ argument on this issue. Although defendants argue that paragraph 2 of the trial court’s March 9, 1989, order was correct and should not have been stricken, defendants mistakenly argue on appeal that paragraph 2 of the order required Douglas to reconvey the 248.8 square feet of property to the east of the “15-foot line.” To better understand the inaccuracy of this argument, we must turn our attention to some relevant facts.

First, we note that both the Gold Standard lease and the Douglas lease, at least initially, described the premises in terms of a plat of survey dated May 28, 1974. The Gold Standard lease purported to lease “Lots 1, 2, 3 and the East 15 feet of Lot 4,” while the Douglas lease purported to lease “Lots 4 (except the east 15 feet thereof), 5, 6, and 7.” (See diagram 1.) However, ironically, nowhere on the plat of survey drawn on April 2, 1982, is this “15-foot line” depicted. In fact, it wasn’t until July 2, 1986, when a new plat of survey was made, unbeknownst to Douglas and at the request of Mr. DeYoung, an attorney representing Gold Standard and Harold Binstein, that this 15-foot line was superimposed on a plat of survey which showed the property occupied by both Gold Standard and Douglas.

This survey clearly showed that the 15-foot line had no practical significance. While it was clear that parcel 2 of the Douglas Theater property extended well to the east of the 15-foot line into the property purportedly leased to Gold Standard, it became equally clear that a large portion of the west wall of the Gold Standard liquor store was, in fact, a number of feet to the west of the 15-foot line, encroaching several feet beyond the western limit of its lease. Thus, we conclude that although the legal description of the premises contained in the Gold Standard lease defined the general parameters of that property, the actual boundary of the property subject to the Gold Standard lease was defined by the walls of the commercial building constructed on the property, pursuant to the terms of the lease.

Secondly, we see no need for going outside the Douglas lease or to attempt to define the premises subject to the lease and option to purchase by making reference to the Gold Standard Lease. The Douglas lease clearly and distinctly recognized that the legal description of the premises, given in terms of the 1974 plat of survey, was inaccurate because it did not take into account the changes to the property brought about by the construction of the commercial building by Gold Standard. Thus, it was necessary to have a new plat of survey drawn to describe the property. This was done, and we can find no cogent reason for disregarding the obvious intent to include parcel 2 as part of the Douglas lease and option.

Furthermore, the Douglas lease clearly indicated its intention to extend the Douglas theater premises beyond the 15-foot line when necessary: (1) by recognizing that “the easterly line of the Premises may be somewhat irregular and may vary slightly at the basement, first floor and roof levels, but the interior of the Premises are to be as presently divided by existing walls,” and (2) by including a party wall agreement in exhibit D of the lease, which acknowledged that the property was improved by a theater-store building with a party wall which divided the two improvements.

For the above reasons, we can find no error in the trial court’s decision to vacate paragraph 2 of the March 9, 1989, order. Paragraph 2 would have required Douglas to reconvey to Chicago Title as trustee property to which it was clearly not entitled.

The next issue before this court is whether the trial court erred by reserving, pending appeal, judgement on the issue of damages. We find that it did not.

When a party sues for specific performance, that party may also seek, and the equity court may award, other relief including monetary damages occasioned by the delay in the performance of the contract. (Gordon v. Bauer (1988), 177 Ill. App. 3d 1073, 532 N.E.2d 855.) Although such compensation is referred to as “damages,” it is not actually legal damages arising from the breach of the contract, but rather, equitable compensation “in the nature of an accounting” inasmuch as the court is confirming the contract and erasing the breach. (Grill v. Adams (1984), 123 Ill. App. 3d 913, 463 N.E.2d 896; Arnold v. Leahy Home Building Co. (1981), 95 Ill. App. 3d 501, 420 N.E.2d 699.) When looked at in this manner it is clear that such compensation may be awarded only after a final decision has been made with regard to the specific performance claim. Consequently, we find no abuse of discretion in the trial court’s decision to reserve judgment on the issue of equitable compensation pending the outcome of the appeals.

Finally, we turn our attention to Douglas’ cross-appeal of the denial of his request for attorney fees and costs. The general rule in Illinois is that each litigant is responsible for his own attorney fees and costs. (Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47.) Ordinarily, each litigant, even the successful one, must pay his or her own costs arising out of the litigation unless a statute, agreement, or stipulation specifically allows for the payment of the other party’s attorney fees and costs. Saltiel v. Olsen (1981), 85 Ill. 2d 484, 426 N.E.2d 1204.

Douglas argues that the lease agreement involved in this case specifically allowed for fees and costs to be paid in the event of a default in the option agreement. Douglas points to section 21(i) of the lease agreement in support of this position. Section 21(i) states, in pertinent part:

“Reciprocally, in the event Lessor shall be in default in the performance of any of its obligations under this Lease, and an action shall be brought for the enforcement thereof in which it shall be determined that Lessor was in default, Lessor shall pay to Lessee all expenses incurred or paid by Lessee in connection therewith including reasonable attorneys’ fees.”

Defendants respond by arguing that the above-cited paragraph is taken out of context. Section 21, which is entitled “Default,” lists, in paragraph (a), five occurrences or acts that would constitute default. The following paragraphs, (b) through (j), then discuss the various remedies associated with any such defaults. Thus, defendants argue that the remedy of attorney fees and costs is restricted to the types of leasing defaults discussed in paragraph (a). We agree.

We note, first of all, that section 10 of the lease, entitled “Purchase Option,” contains a paragraph (g), which states:

“If, after Lessee has exercised the option herein granted, Lessee shall default and fail to perform any of its obligations hereunder as required hereby, the option granted herein shall thereafter be null and void and of no further force or effect and Lessor shall have the right to any and all remedies it may then have at law and in equity. In the event that the option granted herein is timely and properly exercised and the purchase and sale is not closed by reason of default of Lessor, the Lessee shall have the right to pursue any and all remedies Lessee may then have at law and in equity.”

It appears to this court that this paragraph, rather than paragraph 21, delineates the remedies available to a party upon default of the option contract. Consequently, since this provision does not specifically allow for attorney fees and costs, we find that it was not an abuse of discretion for the trial court to have denied Douglas’ request for attorney fees and costs.

For all the reasons stated above, we affirm the orders of the trial court in all respects, except that Douglas’ entitlement to occupy the entire “Bar Area Basement,” which is parcel 3 on the plat of survey dated June 29, 1990, depends upon the option exercised by Gold Standard as stated earlier in this opinion.

Affirmed.

LORENZ, P.J., and COCCI A, J., concur.

      Prior to being reassigned to another division, Justice Michel A. Coccia concurred in the above case.


author: PRESIDING JUSTICE JIGANTI

text:
      NORWEGIAN AMERICAN HOSPITAL, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellees.
    First District (4th Division)
    No. 1 — 90—0052
    Opinion filed February 21, 1991.

      David S. Morris, of Chicago, for appellant.
    Neil Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellees.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Norwegian American Hospital, Inc., appeals from a ruling of the circuit court in which the court, upon administrative review of a decision of the defendant, the Illinois Department of Revenue, affirmed the denial of 1986 property tax exemptions for 25 parcels of real estate owned by the hospital.

In 1986, the plaintiff, Norwegian American Hospital, filed applications with the defendant, the Illinois Department of Revenue (Department), for real property tax exemptions on 68 parcels of property owned by the hospital and located in the vicinity of its main building. The revenue department granted tax-exempt status to 17 of the parcels and denied exemptions for the remaining 51 properties. Norwegian American requested evidentiary hearings on 49 of the nonexempted parcels. Following the formal hearings, the revenue department again denied exempt status to the 49 parcels of land. The hospital filed complaints for administrative review. Upon review of the revenue department’s decision, the circuit court ruled that the Department had incorrectly found 24 of the parcels to be nonexempt. As to the remaining 25 parcels, the court ruled that the department had correctly determined the parcels to be nonexempt properties. Upon a motion of Norwegian American Hospital for reconsideration of that portion of its decision affirming the Department of Revenue’s findings, the circuit court issued a decision on reconsideration affirming its earlier decision. Norwegian American Hospital follows with this appeal.

Norwegian American Hospital is a not-for-profit 253-bed hospital located on the west side of Chicago. The main arterial boundaries of the hospital are Division on the north, California on the east, Augusta on the south, and Sacramento on the west. The 68 parcels of property originally under consideration are spread out in a one-quarter-mile area enclosed within the boundaries described. The hospital sits at the approximate center of the defined area.

During the administrative hearings held below, Norwegian American offered testimony to show that, in the late 1970s and early 1980s, the hospital administration became concerned over the hospital’s diminishing census of patients and difficulty attracting staff members. The administration felt that the hospital’s difficulties stemmed in part from dangers associated with the deteriorating apartment structures immediately surrounding the hospital. A decade ago, an event which came to be known as the “Puerto Rican Day” riots occurred in the area of the hospital. During the rioting, windows in the surrounding buildings were smashed and buildings were burned. At the time the hospital became concerned, gangs had taken up occupancy in the abandoned buildings and the neighborhood around the hospital had gained a reputation for dangerous criminal activity. Directly in front of the hospital, in view of the main entrance and patient rooms, was an area consisting of empty tenement buildings in disuse or disrepair which the administrators described as a “zone of blight.” The hospital administrators became convinced that the neighborhood’s condition and reputation dissuaded prospective employees from accepting positions with the hospital and discouraged patients from seeking the hospital’s services.

The administrators were also concerned that the buildings in the area obstructed the. hospital’s visibility from the surrounding major thoroughfares, further discouraging potential patients. The administrators also pointed out that due to the location of the hospital in a highly congested area, parking for patients, staff, and visitors was limited.

In approximately 1982, administrators of Norwegian American Hospital turned the day-to-day management of the hospital over to a professional management services organization. In response to the hospital’s concerns about the surrounding neighborhood, the management organization and the hospital’s real estate committee devised a plan to open up a “green” or campus-type environment in the area. In pursuit of the “campus plan,” the hospital management consulted with architects and formalized a plan of development that was to include properties already owned by the hospital and parcels targeted for acquisition. The campus plan also included a corporate identity program which was intended to give a visual image to the hospital. The identity program included a sign and directional program involving the placement of six specifically designed monolith-type signs to be placed at various locations in the area. As implementation of the plan to create a park-like or campus atmosphere around the hospital proceeded, dilapidated buildings were razed, properties were seeded with grass or landscaped with flowers and trees, and pedestrian walkways, benches, and food service and picnic areas were installed. Parking lots were also created. The properties involved in the campus plan were not all contiguous to the hospital site or one another, but in some instances were scattered among private residences in the neighborhood. Hospital administrators testified that the purchase of contiguous property was not always possible. To the date of this dispute, the hospital has spent in excess of $1 million in a continuing effort to improve the sites surrounding the hospital.

In approximately 1984, the hospital commissioned a research firm to conduct a scientific study of the community. The results of the study indicated that the location of the hospital in an area of perceived danger was a significant factor in the minds of those community members considering whether to choose Norwegian American over any other health care facility. The study also indicated that the improvements Norwegian American had made to the area surrounding the hospital had increased its ability to attract people to its institution and had stimulated further growth and development in the immediate area.

At the conclusion of the evidence, the circuit court ruled that the revenue department had incorrectly determined 24 of the 49 parcels of property under review to be nonexempt. The court concluded that these 24 parcels were actually being used for hospital purposes: four parcels were part of a contiguous parking lot; a hospital directional sign was located on one parcel; the remaining parcels were used either to conservatively increase visual access to the hospital, provide picnic and recreation areas to the hospital employees and patients, or as sites for hospital structures or programs. The circuit court affirmed the revenue department’s ruling as to 25 of the reviewed 49 parcels. The court ruled that because these properties were vacant, noncontiguous and scattered amongst private residences, and too far from the hospital to reasonably contribute to the hospital’s visibility from neighboring thoroughfares, they did not qualify for tax-exempt status.

In appealing the status of those parcels of property which the circuit court determined were nonexempt properties, the hospital asserts that these parcels are, as were all of the 68 properties originally under consideration, part of the execution of the hospital’s campus plan. The hospital maintains that the stated purpose and expressed need for the campus plan has not been challenged by the Department of Revenue. The hospital argues that as the campus plan is reasonably necessary to the accomplishment of the charitable objectives of the hospital, those properties developed under the plan should be considered tax exempt. See MacMurray College v. Wright (1967), 38 Ill. 2d 272, 230 N.E.2d 846.

The Department of Revenue, on the other hand, argues that Norwegian American has not met its burden of clearly and conclusively establishing that the challenged properties are entitled to tax-exempt status. (People ex rel. County Collector v. Hopedale Medical Foundation (1970), 46 Ill. 2d 450, 264 N.E.2d 4.) The department asserts that no healing, health care, or hospital administration took place on any of the parcels. Nor did the properties support either a hospital facility or sign. The Department argues that patients receive no direct benefit as a result of the function of the parcels, and that neighborhood beautification is not an endeavor which the hospital can use to classify the parcels as used actually and exclusively for charitable purposes. (Ill. Rev. Stat. 1985, ch. 120, par. 500.7.) The revenue department also maintains that because the hospital presented no evidence that it had adopted a formal resolution concerning the campus plan, the hospital has failed to prove that a concrete plan exists.

We believe that the 25 parcels at issue are part of a general plan of site improvement that is reasonably necessary to the continued survival and efficient administration of Norwegian American Hospital as a charitable institution. As such, we reverse that portion of the circuit court’s ruling denying tax-exempt status to 25 of the submitted parcels of property.

The law in Hlinois exempts from taxation that property of charitable institutions that is “actually and exclusively used for *** charitable or beneficent purposes.” (Ill. Rev. Stat. 1985, ch. 120, par. 500.7.) Exclusive use refers to the primary purpose for which the property is being used, not a secondary or incidental purpose. (North western Memorial Foundation v. Johnson (1986), 141 Ill. App. 3d 309, 490 N.E.2d 161.) However, the property need not be absolutely indispensable for carrying out the purposes of the charitable institution. If the party seeking the exemption can establish that the property is used primarily for purposes reasonably necessary for the accomplishment and fulfillment of the institution’s objectives and administration, an exemption will be sustained. (See MacMurray College v. Wright (1967), 38 Ill. 2d 272, 230 N.E.2d 846.) While it is the taxpayer’s burden to prove its right to an exemption, each case requires a consideration of the particular fact pattern presented. Evangelical Hospital Association v. Novak (1984), 125 Ill. App. 3d 439, 465 N.E.2d 986.

We believe that the 25 subject parcels here under review are entitled to tax-exempt status. The uncontroverted evidence suggests that the survival of the hospital as a nonprofit, care-giving organization was threatened by the dilapidated and dangerous environment surrounding the hospital. The Department of Revenue has not challenged Norwegian American’s perception that a plan of surrounding property improvement was necessary in order to increase patient census, prevent crime to patients, staff, and visitors, and increase parking and a clear sight line to major thoroughfares. The Department has offered no authority for the proposition that in order to claim tax-exempt status, the hospital must show that a formal corporate resolution was adopted by the hospital board. The record indicates that the development of the parcels was part of a comprehensive plan. The hospital’s management met with the real estate committee to formulate the plan, architects were consulted, conceptual plans were developed, a corporate identity and sign program was created, parcels of land were purchased, and clearing and landscaping of the properties were implemented. The hospital also commissioned a formal study to measure the effectiveness of the plan. Based on the evidence presented, we believe that the hospital had embarked on an organized plan intended to improve access to the hospital and decrease the dangerous conditions of the surrounding area.

We do not believe that the fact that the parcels were vacant affects the determination that they were entitled to tax-exempt status. While intention to use is not equivalent to use, where actual development or adaptation has taken place, exemptions have been allowed. (Weslin Properties, Inc. v. Department of Revenue (1987), 157 Ill. App. 3d 580, 510 N.E.2d 564.) In the present case, we believe that the very fact that the parcels in question have been rendered vacant through the razing of abandoned structures supports the hospital’s argument that the properties have been adapted to use. An unobstructed sight line to surrounding thoroughfares, a curb on criminal opportunism, and the creation of an open, park-like atmosphere are part of the stated goals of the hospital. The administrators also testified that the development of the properties was an ongoing project. In Knox College v. Department of Revenue (1988), 169 Ill. App. 3d 832, 523 N.E.2d 1312, the court observed that open spaces serving as a campus lawn were an integral part of a college campus. Similarly, we believe that where open spaces serve to address the concerns outlined above, they can be considered integral to the efficient administration of an urban hospital. (See also Board of Appraisal Review for Travis County Appraisal District v. Protestant Episcopal Church Council (Tex. Ct. App. 1984), 676 S.W.2d 616 (acreage described as necessary for access to the school, for the school’s ornamentation and general use, and for providing a buffer against encroaching residential and commercial development, was properly found tax exempt).) We also do not believe that case law supports the notion that in order to qualify for exemption, the properties must be adjacent to the primary locus of the charitable organization. See Evangelical Hospital Association v. Novak (1984), 125 Ill. App. 3d 439, 465 N.E.2d 986; Weslin Properties, Inc. v. Department of Revenue (1987), 157 Ill. App. 3d 580, 510 N.E.2d 564.

Finally, we believe that under the reasonably necessary test articulated in MacMurray College v. Wright (1967), 38 Ill. 2d 272, 230 N.E.2d 846, the hospital need not prove that the subject parcels involved activity that directly related to the healing of patients in order to receive tax exemptions for the properties. The use of the property need not be absolutely indispensable to the hospital’s purposes. (Northwestern Memorial Foundation v. Johnson (1986), 141 Ill. App. 3d 309, 490 N.E.2d 161.) The uncontroverted evidence in the present case was that the dangerous and dilapidated condition of the area surrounding the hospital was having a negative effect on patient census and efficient staffing of the hospital. We believe that these concerns have a sufficient nexus to the hospital’s survival and efficient administration to qualify the hospital’s response as reasonably necessary according to the spirit and letter of the statute. (See Ill. Rev. Stat. 1985, ch. 120, par. 500.7.) The hospital embarked on a comprehensive plan to alleviate the blight affecting its survival and administration. The parcels under review were developed in a manner consistent with the articulated plan: abandoned buildings were demolished, and the land was either seeded or more extensively landscaped. For these reasons we believe that the 25 parcels here under review do qualify for tax-exempt status, and that portion of the circuit court’s ruling which denied tax-exempt status to the subject parcels is reversed.

Reversed.

LINN and JOHNSON, JJ., concur.