text:
    QUALITY LIGHTING, INC., Plaintiff-Appellant, v. BURTON BENJAMIN et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—91—1789
    Opinion filed March 27, 1992.

      Jonathan E. Rothschild and Alan S. Madans, both of Rothschild, Barry & Myers, of Chicago, and Gregory B. Nokes and Chase T. Rogers, both of Cummings & Lockwood, of Stamford, Connecticut, for appellant.
    Vedder, Price, Kaufman & Kammholz, of Chicago (Richard E Zehnle and Diane M. Kehl, of counsel), for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff, Quality Lighting, Inc., appeals a grant of summary judgment in favor of defendants in a case involving trade secrets. Defendants are Burton Benjamin, Lighting and Lowering Systems, Inc., Du-ray Fluorescent Manufacturing Co., Inc., and Esco International, Inc.

Plaintiff filed a three-count complaint to challenge the various defendants’ use of technical, pricing and other information on the grounds that this information constitutes trade secrets and/or otherwise confidential information protectable under Illinois law. Plaintiff sought relief on the trade secrets issues in two separate counts, under the Illinois Trade Secrets Act (Ill. Rev. Stat. 1987, ch. 140, par. 351 et seq.) and under Illinois common law, respectively. A third count sought relief for breach of fiduciary duty on the part of Burton Benjamin, a former employee of plaintiff.

Defendants filed a motion for summary judgment. On May 22, 1991, the trial court granted defendants’ motion for summary judgment on counts I and II of plaintiff’s amended complaint. Plaintiff then voluntarily dismissed count III without prejudice and filed this timely appeal. The facts are as follows.

Burton Benjamin (Benjamin) founded Quality Lighting, Inc., a Delaware corporation, in 1965. In 1987 the assets of Quality Lighting, Inc., were sold to L.P.I. Limited Partnership, an Illinois limited partnership (LPI), and the business became the Quality Lighting Products Division (QL Products Division) of LPI. Thereafter Benjamin was employed by LPI under the terms of a November 2, 1987, employment agreement. The employment agreement contained covenants restricting Benjamin’s use of confidential information connected to the business and his ability to compete.

In 1989 LPI sold the assets of its QL Products Division to Jac Jacobsen Industries, Inc., a Connecticut corporation (JJI). The current Quality Lighting, Inc. (Quality), remains a wholly owned subsidiary of JJI. Quality designs, manufactures and assembles outdoor lighting products which it markets and sells nationwide for residential and commercial use.

After Benjamin sold the business to LPI in 1987, he became and remained an employee of LPI until LPI sold the business to plaintiff in 1989. Following that sale LPI remained in the lighting business, but in areas not competitive with plaintiff. Also following the 1989 sale Benjamin became an employee of plaintiff and remained an employee of plaintiff until his resignation in November of 1989. LPI informed Benjamin that as a condition of the purchase, JJI required that Benjamin become a consultant to JJI for a term of six months. Approximately April 3, 1989, JJI sent Benjamin an employment agreement which contained restrictive covenants regarding use of confidential information and post-employment competition. Benjamin refused to execute the employment agreement with JJI. In order to induce Benjamin to work for JJI, LPI entered into a termination agreement with Benjamin.

Benjamin also founded Lowering Systems, Inc., now known as Lighting and Lowering Systems (Lowering Systems), an Illinois corporation with its principal place of business at 2050 West Balmoral Drive in Chicago. Presently, Lowering Systems manufactures outdoor lighting fixtures and devices to raise and lower lighting fixtures. The other named defendants are Duray Fluorescent Manufacturing Co., Inc. (Duray), and Esco International, Inc. (Esco). Duray and Esco do business from the same address as Lowering Systems and are also engaged in the lighting business.

That the various defendants are using confidential information belonging to Quality appears to be undisputed. The various defendants claim a right to use the information based on a termination agreement between Benjamin and LPI and a failure of Quality to protect the information by measures required by Illinois case law construing the Illinois Trade Secrets Act.

Quality argues that the trial court erred in granting summary judgment because of the existence of numerous issues of material fact with respect to both the effect of the termination agreement and the reasonableness of the plaintiff’s efforts to safeguard its confidential information.

For the following reasons, we reverse and remand to the trial court for further proceedings.

A motion for summary judgment should be granted only when the pleadings, depositions, admissions, and affidavits establish there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Sons v. Taylor (1991), 219 Ill. App. 3d 923, 925, 579 N.E.2d 1281; see also Breeze v. Payne (1989), 181 Ill. App. 3d 720, 726-27, 537 N.E.2d 453, 458; Cerniglia v. Farris (1987), 160 Ill. App. 3d 568, 572, 514 N.E.2d 792, 794.) The purpose of summary judgment is not to try an issue of fact, but rather to determine whether a triable issue of fact exists. Sloan v. Jasper County Community Unit School District No. 1 (1988), 167 Ill. App. 3d 867, 870, 522 N.E.2d 334, 336.

The use of summary judgment is encouraged under Illinois law as an aid to the expeditious disposition of a lawsuit. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) Yet, it is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt. (Sons v. Taylor (1981), 219 Ill. App. 3d 923, 925, 579 N.E.2d 1281.) If the facts of a case permit more than one conclusion or inference, including one unfavorable to the movant, the motion should be denied. (Cerniglia v. Farris (1987), 160 Ill. App. 3d 568, 572, 514 N.E.2d 792, 794.) Even if the facts of the case are undisputed, if reasonable persons could draw different inferences from the facts, a triable issue exists. It is only when undisputed facts admit a single inference that the issue becomes one of law. (In re Estate of Jessman (1990), 197 Ill. App. 3d 414, 419, 554 N.E.2d 718, 720-21; Practical Offset, Inc. v. Davis (1980), 83 Ill. App. 3d 566, 570, 404 N.E.2d 516, 520.) Finally, summary judgment is particularly inappropriate where the motive, intent or subjective feelings of the parties are at issue. In re Estate of Jessman (1990), 197 Ill. App. 3d 414, 419, 554 N.E.2d 718, 720-21.

An appellate court reviews summary judgment orders de novo. (Demos v. National Bank (1991), 209 Ill. App. 3d 655, 659-60, 567 N.E.2d 1083, 1086.) It is the duty of the court to construe the evidence strictly against the movant and liberally in favor of the opponent. (Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 522, 434 N.E.2d 50, 52.) A reviewing court will reverse the trial court’s granting of summary judgment if it determines that a genuine issue of material fact does exist. Cerniglia v. Farris (1987), 160 Ill. App. 3d 568, 572, 514 N.E.2d 792, 794.

It is improper for the court to speculate in order to determine the parties’ intent in granting a motion for summary judgment. (Farm Credit Bank v. Whitlock (1991), 144 Ill. 2d 440, 448, 581 N.E.2d 664.) “Caution must be exercised in granting summary judgment so as not to preempt the right of a party to present the factual basis of his case to the fact finder.” Farm Credit Bank v. Whitlock (1991), 144 Ill. 2d 440, 448, 581 N.E.2d 664, citing Chaplin v. Geiser (1979), 79 Ill. App. 3d 435, 398 N.E.2d 628.

In their motion for summary judgment, defendants claimed that as a matter of law, Quality could not prevail on the trade secret counts for two separate reasons. First, defendants relied upon an agreement between Benjamin and LPI which stated the terms under which Benjamin’s employment agreement with LPI was to be terminated (Termination Agreement). The Termination Agreement, inter alia, released Benjamin from certain confidentiality and noncompete covenants with LPI. Plaintiff was not a party to the Termination Agreement.

Defendants’ second contention was that plaintiff had failed to use reasonable efforts to protect the confidentiality of the information that it claims to constitute trade secrets.

The trial court entered summary judgment in favor of defendants based on the Termination Agreement. The trial court found the Termination Agreement clear and unambiguous. The trial court concluded that the Termination Agreement relieved Benjamin of the non-competition clause in his original employment agreement and further that it relieved him of his obligations under the covenant regarding confidential information.

It is defendants’ position that the Termination Agreement plainly and unambiguously permitted Benjamin to use the information Quality claims should be protected as a trade secret. Alternatively, Quality urges that the Termination Agreement is not clear and unambiguous and that numerous issues of material fact are present that precluded the granting of summary judgment thus requiring this court to reverse and remand to the trial court.

The Termination Agreement dated April 28, 1989, was solely between Benjamin and LPI. The agreement provides in pertinent part:

“WHEREAS, Employer has agreed to sell its ‘QL Products’ division to JJI Acquisition Company (‘JJI’) and, as a condition to JJI’s purchase thereof, JJI requires that Employee become a consultant to JJI:
NOW, THEREFORE, to induce Employee to accept engagement with JJI and in consideration of the mutual covenants set forth herein, the parties hereto agree as follows:
1. Employee and Employer hereby agree that the term of employment pursuant to the Agreement shall end on April 28, 1989 instead of the date originally set forth in the Agreement ***
* * *
4. The covenant not to compete or interfere with the business set forth in Paragraph 10 of the Agreement is hereby terminated and shall have no force or effect hereafter, and the covenant regarding Confidential Information set forth in Paragraph 9 of the Agreement shall hereafter not apply to the Confidential Information which relates to the outdoor lighting industry or the QL Products division.
5. The balance of the Agreement shall continue to apply in the same fashion as it would otherwise at the end of the term of employment except that, to the extent that any obligation which Employee owes to Employer is consistent with the obligation the Employee owes to JJI (or any successor employer thereto), the Employee’s obligation to JJI (or such successor employer) shall prevail.”

It is noted, however, that with respect to “confidential information” the agreement refers to paragraph 9 of an employment agreement dated November 2, 1987. The November 2, 1987, agreement was not before the trial court and is not a part of the record on appeal. Prior to JJI’s acquisition of LPI’s QL Products Division, JJI sent Benjamin an April 5, 1989, draft of an employment agreement. In their motion for summary judgment defendants allege that the 1989 agreement contained a restrictive covenant similar to that contained in Benjamin’s agreement with LPI. Paragraph 9 of the 1989 draft agreement reads:

“9. Protection of Confidential Information.
Employee recognizes that Employer has acquired and will be developing certain trade secrets, know-how, customer lists and marketing plans which Employer regards as confidential (collectively ‘Confidential Information’). Employee agrees that upon termination of his employment for any reason he will immediately deliver to Employer all papers, books, manuals, *** correspondence and documents relating to Confidential Information as well as any other matters which may involve Employer’s business, together with all copies thereof, irrespective of whether he created the same or was involved with the same, and that he will neither copy nor take any such material with him upon leaving Employer’s employ. Employee further agrees that he will not at any time either while employed by Employer or after the termination of his employment reveal Confidential Information to any other person, firm or corporation, except as required by law. Confidential Information does not include information generally known in the ‘lighting’ industry or which has become part of the public domain other than by reason of Employee’s breach of this Agreement or the information described in paragraph 10(c).”

Quality argues that contrary to the trial court’s ruling, the language of the Termination Agreement is reasonably susceptible to numerous interpretations, thereby precluding summary judgment. Plaintiff admits that defendants’ interpretation of the language arguably is one possibility; however, plaintiff maintains that a more plausible interpretation of the Termination Agreement is that it released Benjamin solely from the confidentiality and noncompete obligation owed to LPI under the terms of his employment agreement with LPI, so as to permit him to work for plaintiff.

“A [document] is ambiguous if its terms are capable of being understood in more than one sense because either an indefiniteness of expression or double meaning is attached to them.” (Village of Grandview v. City of Springfield (1984), 122 Ill. App. 3d 794, 797, 461 N.E.2d 1031, 1034.) Contracts must be “interpreted as a whole, giving meaning and effect to each provision thereof.” (Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 730, 523 N.E.2d 30, 33.) “The presence of an ambiguity in a document is a question of law; an ambiguity exists if words can be interpreted in more than one sense.” (Srivastava v. Russell’s Barbecue, Inc. (1988), 168 Ill. App. 3d 726, 732, 523 N.E.2d 30, 35.) Whenever a contractual ambiguity is present or when contractual language is susceptible to more than one meaning, extrinsic evidence is admissible to explain or ascertain what the parties intended. Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272,154 N.E.2d 683, 689.

Additionally, the parol evidence rule only applies to the parties to the written agreement. (Rittenhouse v. Tabor Grain Co. (1990), 203 Ill. App. 3d 639, 649, 561 N.E.2d 264.) The court in General Casualty Co. v. Elam (1972), 8 Ill. App. 3d 215, 289 N.E.2d 699, stated:

“ ‘The parol evidence rule *** prevents the parties to an integrated written contract from varying or contradicting the terms of the contract when litigating between themselves concerning their rights thereunder. However, parol evidence can be used to vary or contradict a contract when the litigation is between a party to the contract and a stranger thereto ***. This is true even where the evidence is offered by the party to the contract.’ ” (General Casualty, 8 Ill. App. 3d at 225, 289 N.E.2d at 706, quoting Carolina Insurance Co. v. Oregon Automobile Insurance Co. (1965), 242 Or. 407, 413, 408 P.2d 198, 201.)

The Termination Agreement was solely between Benjamin and LPI. JJI was not a party to the Termination Agreement. Therefore, parol evidence may be considered to vary or contradict the terms of the Termination Agreement.

Richard S. Weinberg was the attorney who represented LPI during the sale of LPI’s assets to JJI. His affidavit provides in relevant part:

“I believe that one of the purposes of the Termination Agreement was to allow Benjamin to use the confidential information he obtained while working for my client in his new employment with the JJI subsidiary, and that after a short period of time, he would retire. It was not my intention to create a situation in which Burt Benjamin would be free to use my client’s confidential information to compete with the JJI subsidiary.
4. To my knowledge, JJI was not aware of the specific terms of the Termination Agreement, except with respect to the payments of any bonus money due Burt Benjamin.”

The affidavit of C. Joseph Incrocci, vice-president of JJI, provides in part:

“JJI believed that part of the assets acquired for its wholly-owned subsidiary pursuant to the terms of its purchase agreement included benefits of Benjamin’s employment agreement, including its non-compete and confidentiality provisions.”

In the present case we are dealing with a Termination Agreement which on the one hand stated that a covenant not to compete was terminated and on the other hand indicated that the “Confidential Information set forth in Paragraph 9 shall hereafter not apply to the Confidential Information which related to the outdoor lighting industry or the QL Products division.” It is not clear as to what the parties intended by said language. Moreover, since JJI was not a party to the Termination Agreement parol evidence is admissible as to the intent of the parties. We find that the Termination Agreement is not clear and unambiguous thus presenting various questions of fact and precluding the granting of summary judgment.

The trial court’s ruling focused solely on the language of the Termination Agreement. However, plaintiff argued at the motion for summary judgment and maintains on appeal that plaintiff did use reasonable measures under the circumstances to protect its trade secrets and confidential information. Conversely, defendants contend that plaintiff did not take reasonable measures under the circumstances to protect its claims.

“The essential element to any relief under the law is the existence of confidential information or a trade secret.” (Service Centers of Chicago, Inc. v. Minogue (1989), 180 Ill. App. 3d 447, 453, 535 N.E.2d 1132.) A trade secret can be generally defined as “ ‘a plan or process, tool, mechanism, compound, or informational data utilized by a person in his business operations and known only to him and such other limited other persons to whom it may be necessary to confide it.’ ” (Televation Telecommunication Systems, Inc. v. Saindon (1988), 169 Ill. App. 3d 8, 13, 522 N.E.2d 1359, 1363, quoting I L G Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 92, 273 N.E.2d 393.) The Illinois Supreme Court has identified six factors to be considered in determining whether information or materials constitute trade secrets: (1) the extent to which the information is known outside the employer’s business; (2) the extent to which it is known to employees and others involved in the employer’s business; (3) the extent of the measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and its competitors; (5) the money or effort expended by the employer in developing the information; and (6) the ease or difficulty with which others might properly acquire or duplicate the information. I L G Industries, Inc. v. Scott (1971), 49 Ill. 2d 88, 93, 273 N.E.2d 393.

The legislature extended statutory protection to trade secrets by enacting the Illinois Trade Secrets Act (Act) (Ill. Rev. Stat. 1989, ch. 140, par. 351 et seq.). The Act defines a trade secret as follows:

“ ‘Trade secret' means information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that:
(1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.” (Ill. Rev. Stat. 1989, ch. 140, pars. 352(dXl), (d)(2).)

The Trade Secrets Act defines “misappropriation” as:

“(2) disclosure or use of a trade secret of a person without express or implied consent by another person who:
* * *
(B) at the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was:
* * *
(II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or
(III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use[.]” Ill. Rev. Stat. 1989, ch. 140, pars. 352(b)(2)(B)(II), (bX2XBXHI).

Defendants contend that plaintiff did not take reasonable measures under the circumstance to protect its confidential information. Defendants cite the case of Colson Co. v. Wittel (1991), 210 Ill. App. 3d 1030, 569 N.E.2d 1082, in support of their argument. However, that case proceeded after an evidentiary hearing with the court expressly stating that an alleged termination agreement was not a part of the record.

Plaintiff asserts that at all relevant times, plaintiff has placed a legend on all confidential blueprints and drawings relevant to this lawsuit. The legend states that the information in the blueprints or drawings belongs to plaintiff. Plaintiff stored confidential technical information in a file cabinet located in the engineering department, which was separate from the shop area in the facility, and access to this confidential technical information was limited principally to plaintiff’s engineering staff. On certain occasions such information was made available to other employees of plaintiff on a need-to-know basis. Defendants have alleged that information plaintiff claims to be confidential was widely known by plaintiff’s employees. However, Benjamin’s deposition testimony indicates that business reasons justified any such knowledge. Additionally, plaintiff asserts that its sales representatives and other personnel have been sensitized to watch for purchase orders for a single product because in most cases such orders signal an attempt by a competitor to obtain one of plaintiff’s products for the purpose of reverse engineering that product. To prevent reverse engineering, plaintiff’s sales representatives or office personnel trace small orders to determine the identity of the actual purchaser, and reject the purchase order if it was placed on behalf of a competitor.

We find that the circumstances and the reasonableness of plaintiff’s efforts under those circumstances are factual issues which preclude the granting of summary judgment.

Accordingly, based on the aforecited case law relating to summary judgments, we reverse and remand the case for a hearing as to what the parties intended by the terms of the termination agreement pertaining to trade secrets.

It is ordered that the trial court’s grant of summary judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

McNULTY, P.J., and LORENZ, J., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    NORMAN M. ZEITZ et al., Plaintiffs-Appellants, v. THE VILLAGE OF GLENVIEW et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—91—2010
    Opinion filed March 27, 1992.
    Law Offices of Dennis L. Earns, of Chicago, for appellants.

      James S. Gordon and Edward Slovick, both of Chicago, for appellees.
   JUSTICE MURRAY

delivered the opinion of the court:

Plaintiffs Norman M. Zeitz, Helen Zeitz, Norman D. Zeitz, Richard M. Zeitz and Lakewoods Development Corporation brought an action seeking declaratory and injunctive relief from certain zoning ordinances enacted by one of the defendants, Village of Glen-view, and damages based upon inverse condemnation and improper taking of plaintiffs’ property. The trial court granted the defendants’ motion to strike the second amended complaint and to dismiss action with prejudice. The plaintiffs appeal the granting of that order.

The facts are not in dispute. All issues presented for review are based upon the sufficiency of the plaintiffs’ second amended complaint.

The Grove is an 82-acre tract of land located in the Village of Glenview (Glenview). It is a national historic landmark. In 1979 Glenview enacted ordinances (Nos. 2280 and 2281) which established an environmentally sensitive area (ESA) within its boundaries. Ordinance No. 2280 also authorized Glenview’s board of trustees to designate a “Primary Area” within an ESA for land requiring the highest degree of protection from adverse effects of incompatible development.

The ESA consisted of 278 acres of which approximately 119 acres were designated a primary area. Ordinance No. 2281 additionally mandated the creation of R-E (residential regulations) which, among other uses, permitted the development of single-family residences with a minimum lot size of not less than two acres and decreed that such R-E zoning district was to be applied to all privately owned property within a primary area.

The individual plaintiffs are the owners of approximately 10.1 acres of vacant land in the ESA. Plaintiffs’ land was involuntarily annexed by Glenview on May 2, 1983. Lakewoods Development Corporation (Lakewoods) has an option to purchase the aforesaid 10.1 acres of real estate. Prior to April 3, 1990, the property was zoned as R-l (residential district) requiring a minimum lot size of only one acre.

On April 3, 1989, plaintiffs filed an application for subdivision approval proposing a 10-lot subdivision. Glenview’s plan commission found the plan deficient and concluded that the application was premature.

On July 18, 1989, after notice and hearing Glenview adopted ordinance No. 3010, which imposed a six-month moratorium on subdivision applications and approvals in the ESA to determine what changes, if any, in regulation and zoning were necessary to protect the environmentally significant area within which plaintiffs’ lots were located.

On January 16, 1990, Glenview adopted ordinance No. 3078 containing regulations governing development in the ESA. The moratorium expired on January 18, 1990.

On April 3, 1990, defendants enacted ordinance No. 3111, which applied the R-E (two-acre minimum lot size) zoning classification to all properties within the ESA that were previously zoned R-l (one-acre minimum lot size). Ordinance No. 3111 did not apply the R-E zoning classification to properties zoned R-2, R-4, or 1-1 within the same ESA. Thus, a number of parcels in the area, including plaintiffs’ 10-acre tract, were rezoned from R-l to R-E pursuant to ordinance No. 3111.

On October 5, 1989, Lakewoods filed a complaint for declaratory judgment and seeking a preliminary injunction. Said complaint was stricken on June 6, 1990. Thereafter, the Zeitz plaintiffs joined with Lakewoods in their amended complaint for declaratory judgment and for an injunction. On November 9, 1990, the trial court struck the amended complaint. On December 20, 1990, plaintiffs were granted leave to file their second amended complaint. The second amended complaint consisted of four counts: Count I sought declaratory and injunctive relief from application of defendant’s moratorium ordinance No. 3010; count II sought declaratory and injunctive relief from application of defendants and rezoning ordinances 3078 and 3111; count III sought damages for inverse condemnation and improper taking of plaintiffs’ property; and count IV sought a writ of mandamus for condemnation.

On May 21, 1991, the trial judge entered an order dismissing the second amended complaint with prejudice. Subsequently, plaintiffs filed this timely appeal.

Plaintiffs raise three issues on appeal, all relating to the sufficiency of the second amended complaint. Plaintiffs argue that the second amended complaint alleges sufficient facts to (1) state a cause of action for declaratory and injunctive relief from the retroactive application of Glenview’s moratorium and rezoning ordinances to plaintiffs’ property and to plaintiffs’ application of subdivision approval; (2) state a cause of action for damages based upon an inverse condemnation and an improper taking of plaintiffs’ property; and (3) support a finding that defendants should be estopped to deny plaintiffs a hearing on their application for subdivision approval in accordance with defendants’ own ordinances in effect at the time the application was filed. Defendants maintain that the trial court properly dismissed plaintiffs’ second amended complaint with prejudice.

Illinois is a fact-pleading State. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 1008.) Although pleadings are to be liberally construed (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 603(c)), a complaint must “containf ] such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” (Ill. Rev. Stat. 1989, ch. 110, par. 2-612(b).) “Liberal construction of a pleading requires that ‘no pleading is to be deemed bad which shall contain such information as shall reasonably inform the opposite party of the nature of the claim.’ ” Griffis v. Board of Education, District 122 (1979), 72 Ill. App. 3d 784, 787, 391 N.E.2d 451, quoting Crosby v. Weil (1943), 382 Ill. 538, 48 N.E.2d 386.

In Illinois a pleader is not required to set forth his evidence. To the contrary, a pleading is only required to allege ultimate facts and not the evidentiary facts tending to prove such ultimate facts. (Board of Education of Kankakee School District No. 111 v. Kankakee Federation of Teachers Local No. 886 (1970), 46 Ill. 2d 439, 264 N.E.2d 18.) In People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 307-08, 430 N.E.2d 1005, 1008, the Illinois Supreme Court stated:

“The purpose of pleadings is to present, define and narrow the issues and limit the proof needed at trial. Pleadings are not intended to erect barriers to a trial on the merits but instead to remove them and facilitate trial. The object of pleadings is to produce an issue asserted by one side and denied by the other so that a trial may determine the actual truth.”

When considering a motion to dismiss, all well-pleaded facts and all reasonable inferences which can be fairly drawn from the facts alleged must be considered as true. (Wilczynski v. Goodman (1979), 73 Ill. App. 3d 51, 391 N.E.2d 479.) “It is error to dismiss a cause of action on the pleadings unless it clearly appears that plaintiff cannot recover under any set of facts which can be proved true under the pleadings.” (Wilczynski v. Goodman (1979), 73 Ill. App. 3d 51, 54, 391 N.E.2d 479, citing Kaplan v. Keith (1978), 60 Ill. App. 3d 804, 806-07, 377 N.E.2d 279.) On appeal, a motion to dismiss for failure to state a cause of action should only be affirmed where no set of facts can be proven under pleadings which will entitle plaintiff to relief. Griffis v. Board of Education, District 122 (1979), 72 Ill. App. 3d 784, 391 N.E.2d 451.

Admittedly, the line between ultimate facts and conclusions of law is not always easily drawn. (Van Dekerkhov v. City of Herrin (1972), 51 Ill. 2d 374, 282 N.E.2d 723.) However, based upon the aforementioned established procedural rules and the following facts, we must find that the plaintiffs alleged sufficient facts to withstand a section 2 — 615 motion to dismiss and reverse the trial judge and remand for a hearing on the merits of plaintiffs' charges.

Zoning is primarily a legislative function, not a judicial one. (La Salle National Bank v. City of Evanston (1974), 57 Ill. 2d 415, 312 N.E.2d 625.) “Zoning ordinances, which must bear a reasonable relation to the public health, safety and welfare, are presumed valid.” (Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 310, 469 N.E.2d 183.) A party challenging a zoning ordinance has the burden of proving by clear and convincing evidence that the application of the ordinance to his or her property is unreasonable and arbitrary and bears no substantial relationship to the public, health, safety, morals and welfare. Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 469 N.E.2d 183; Tomasek v. City of Des Plaines (1976), 64 Ill. 2d 172, 354 N.E.2d 899.

Six factors have been considered by our courts to be particularly relevant in reviewing whether zoning restrictions are reasonable as applied to a particular piece of land or unreasonable restraints on the property rights of the owner. As set forth in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, these factors are: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of plaintiff’s property- values promotes the health, safety, morals, or general welfare of the public; (4) the relative gain to the public compared to the hardship imposed on the individual property owner; (5) the suitability of the subject property for the zoned purpose; and (6) the length of time the property has been vacant as zoned, considered in the context of land development in the community. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65; see also Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 311, 469 N.E.2d 183.) The court in La Salle National Bank further com-merited that “[n]o one factor is controlling.” La Salle National Bank, 12 Ill. 2d at 47.

The law concerning challenges to zoning actions by a legislative body is well settled and not in dispute in this case. These rules of law have become so well settled as to be almost axiomatic. Yet in this case the consideration of the various ordinances was not made pursuant to the stated rules of law. The controversy in this case did not arise upon an answer or after trial, it arose on a motion to strike and dismiss the second amended complaint under section 2— 615 of the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615.) Plaintiffs’ second amended complaint contains some 116 allegations and is 42 pages long, and despite defendants’ argument to the contrary, the complaint alleges sufficient allegations to entitle plaintiffs to a hearing.

In determining whether plaintiffs have sufficiently stated a cause of action, we look to the areas of consideration set forth by the Illinois Supreme Court. First, we look to allegations of the existing use and zoning of nearby property and property within the so-called ESA. The complaint alleges inter alia: that the R-E residential regulations were not applied to any residential property within the ESA until April 3, 1990; Glenview approved a height variation for a building proposal within the ESA; Motivation Media Corporation constructed an office building within the ESA and partially within the primary area; in 1986, the Blocker subdivision of six acres adjacent to plaintiffs’ property and within the primary area was approved; and in 1987, an individual was issued a building permit for a single-family residence within the ESA without storm sewers and including a septic field.

Second, we look to the extent to which property values are diminished by the zoning restrictions. Plaintiffs’ complaint alleges that plaintiffs’ proposed use could cause no injury to or deterioration of the value of other property. Plaintiffs also allege that down-zoning by the defendants renders the plaintiffs’ property economically unfeasible; that defendants’ failure to act on their application for subdivision approval and their downzoning of plaintiffs’ property has substantially impaired and reduced the value of their property by over $1 million; and that defendants’ denial of their application deprives plaintiffs of the best use of their property and destroys the value thereof.

Third, we look to the extent to which destruction of the plaintiffs’ property values promotes the health, safety and welfare of the people of Glenview. Plaintiffs allege, inter alia, that plaintiffs’ proposed development would be consistent with the environment, beauty and surrounding ecology; the proposed storm and sanitary sewers would cause less damage to the environment than existing septic fields, would remove drainage problems, and otherwise enhance the environment. Further, plaintiffs allege that the condition of the land is catastrophic and that under the current trend both prairie and woodland vegetation would die.

Fourth, we look to the relative gain to the public compared to the hardship imposed on the individual. Plaintiffs allege, inter alia, the subdivision would be consistent with the environment; the area has suffered significant environmental degradation; in their present state, indigenous prairie and woodland vegetation will die; active management is required and plaintiffs’ plan includes an emphasis on environmental restoration and will restore prairie to the site within two years; and plaintiffs’ property does not lie within the immediate perimeter of the Grove and its proposed development would have no adverse impact upon the Grove.

Fifth, the complaint charges that the property is suitable for the purposes of an R-l zoning in that the plaintiffs’ proposed subdivision plan will return the property to a high level of environmental importance.

Finally, with respect to the length of time the property has been vacant considered in the context of the development of the vicinity of the object property, the complaint alleges that the property has been vacant since 1983 and that much of the surrounding property has been developed with a multitude of uses.

Considering the allegations of the plaintiffs’ second amended complaint in the light most favorable to the plaintiffs and taking as true all well-pleaded facts and inferences which can be drawn therefrom (J.J. Harrington & Co. v. Timmerman (1977), 50 Ill. App. 3d 404, 407, 365 N.E.2d 721), we find those allegations sufficient to set forth a cause of action upon which relief may be granted upon the trial of the matter. Plaintiffs must still prove their allegations, and no single factor alleged by plaintiffs is controlling. The plaintiffs’ burden of proof with regard to zoning challenges is by clear and convincing evidence. (La Salle National Bank v. City of Park Ridge (1979), 74 Ill. App. 3d 647, 393 N.E.2d 623.) Moreover, a trial court’s conclusion on the evidence presented will not be disturbed on review unless contrary to the manifest weight of the evidence (New Lenox State Bank v. County of Will (1990), 205 Ill. App. 3d 457, 563 N.E.2d 505).

Although plaintiffs’ complaint in this case may not win any prizes for brevity, we find, based on the above rules, that it is sufficient to withstand a section 2 — 615 motion to dismiss.

For the reasons set forth above, the trial court’s order dismissing plaintiffs’ second amended complaint is reversed and the case is remanded with instructions to reinstate plaintiffs’ second amended complaint.

Reversed and remanded with directions.

LORENZ and GORDON, JJ., concur.


author: JUSTICE McNAMARA

text:
    OHANNES KOURDOGLANIAN, Plaintiff-Appellee, v. PANAGIOTIS YANNOULIS, Defendant-Appellant.
    First District (6th Division)
    No. 1—90—1701
    Opinion filed March 27, 1992.

      Aris F. Yanibas, of Chicago, for appellant.
    Joel S. Miller & Associates, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306), we granted leave to defendant Panagiotis Yannoulis to appeal from an order of the circuit court of Cook County denying his motion to dismiss based upon forum non conveniens. 134 Ill. 2d R. 187.

In January 1990, plaintiff Ohannes Kourdoglanian, a resident of Athens, Greece, and defendant, a resident of Zurich, Switzerland, orally agreed to share exhibition space at the International Gallery (Art Fair) to be held in Chicago from May 10, 1990, through May 13, 1990, and to share the booth rental cost, which defendant represented was $30,000. According to plaintiff's complaint, the parties entered this agreement in Europe and plaintiff tendered payment of $15,000 to defendant in Europe before the parties travelled to the United States for the Art Fair. Both parties returned to Europe after the Art Fair ended. On May 10, 1990, during the Art Fair, plaintiff filed this action in the chancery division of the circuit court of Cook County. Plaintiff’s affidavit alleged that upon arriving at the Art Fair, he learned that defendant had misrepresented the booth rental fee. It further stated that when plaintiff demanded reimbursement, defendant threatened to injure him and destroy his property. Plaintiff’s amended verified complaint contained three counts: count I sought injunctive relief to enjoin defendant from preventing plaintiff from occupying the exhibition space and from injuring or threatening plaintiff; count II alleged that defendant fraudulently misrepresented to plaintiff the cost of the booth and sought $7,500 in actual damages; and count III sought prejudgment attachment of defendant’s art work located in Cook County pursuant to section 4 — 101 of the Code of Civil Procedure. Ill. Rev. Stat. 1989, ch. 110, par. 4 — 101.

By agreed orders entered in May 1990, the chancery judge granted plaintiff’s request for injunctive relief and for attachment of defendant’s goods in Cook County. By order dated May 17, 1990, the chancery court granted defendant’s motion to remove his goods from Illinois, ordering defendant to transfer $15,000 to a special escrow account until further court order or the parties’ mutual consent. The order transferred the case to the law division for further proceedings.

On June 6, 1990, defendant filed a motion to dismiss this case based upon forum non conveniens. Plaintiff responded that Cook County was the appropriate forum on the following grounds: the contract between defendant and the Art Fair was entered in Illinois; plaintiff did not learn until he arrived here that he would be unable to exhibit his goods, and thus earn a profit from sales; and access to “the scene of the occurrence” and the availability of witnesses, including Art Fair representatives. The circuit court denied defendant’s motion and we granted leave to appeal.

The sole issue for our review is whether the trial court erred in denying defendant’s forum non conveniens motion. Initially, we note that the agreed orders disposed of plaintiff’s claims for various injunctive relief concerning the parties’ conduct during the four-day event in Chicago. We, therefore, need only focus on plaintiff’s cause of action for fraud and his related prejudgment attachment claim.

According to the equitable doctrine of forum non conveniens, a court which has jurisdiction over a case may nevertheless decline jurisdiction when it is apparent that trial in another forum would be more convenient and would better serve the ends of justice. (Vinson v. Allstate (1991), 144 Ill. 2d 306, 579 N.E.2d 857.) This doctrine is applicable on an interstate basis and a case may be dismissed where it “has no practical connection to the forum.” Torres v. Walsh (1983), 98 Ill. 2d 338, 348, 456 N.E.2d 601, 606.

In deciding whether to dismiss a case under this doctrine, the private interests affecting the litigants’ convenience and the public interests affecting the administration of the courts must be balanced by the courts. (Vinson v. Allstate, 144 Ill. 2d 306, 579 N.E.2d 857.) We consider the test enunciated in Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839, which directs us to first consider the following private interests:

“[T]he relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.” Gulf Oil, 330 U.S. at 508, 91 L. Ed. at 1062, 67 S. Ct. at 843.

Our review of this case reveals that the private interests do not favor Cook County. Both plaintiff and defendant are European residents, of Greece and Switzerland, respectively. The cost and inconvenience of bringing the parties to Illinois to litigate this claim must be considered paramount. Moreover, although plaintiff alleges that the representatives of the Art Fair who reside in Illinois are potential witnesses to defendant’s misrepresentation and the subsequent damage, we fail to see how their testimony is required for proof of plaintiff’s case. The elements of fraudulent misrepresentation include the following: false statement of material fact known to be false by person making it; intent to induce other party to act; action by other party in justifiable reliance on truth of statements; and damage to other party resulting from such reliance. (Gerill Corp. v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 538 N.E.2d 530.) Indeed, any negotiations between the parties occurred in Europe, and any misrepresentations by defendant concerning the actual rental cost of the booth occurred in Europe. Moreover, plaintiff allegedly acted in reliance on defendant’s false statement by tendering payment while in Europe. Certainly, the Art Fair representatives were not witnesses to any negotiations or the oral agreement between the parties. Under these facts, we fail to see the need for testimony of Art Fair representatives. Nor do we find it significant, as plaintiff claims, that the underlying contract between defendant and the Art Fair was entered in Chicago. Although plaintiff’s fraud action may require proof of the terms of the contract between defendant and the Art Fair, nothing in the record suggests that this contract or any related documents cannot be viewed in Europe. Moreover, contrary to plaintiff’s statement, access to the “scene of the occurrence” is irrelevant. As indicated above, the tortious conduct occurred in Europe, and access to the scene of the Art Fair is, therefore, of no consequence. Given the nature of plaintiff’s claim, the sources of proof would likely consist of the parties’ testimony and several documents. Therefore, there is no need for any on-site inspection of premises. Nemanich v. Dollar Rent-A-Car Services, Inc. (1980), 90 Ill. App. 3d 484, 413 N.E.2d 178.

We also reject plaintiff’s claim that his choice of Illinois as a forum should be given paramount consideration because the financial injury occurred in Illinois, and his reliance on Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 490 N.E.2d 694, and Jones v. Searle Laboratories (1982), 93 Ill. 2d 366, 444 N.E.2d 157, for this proposition.

In Brummett, plaintiff, a Tennessee resident, filed an action against her employer, a Tennessee corporation with no place of business in Illinois, for injuries sustained while working aboard defendant’s vessel while in Illinois. All records concerning the vessel, plaintiff’s employment, medical treatment and expenses incurred in treating her injury were located in Tennessee. Potential witnesses, including physicians who treated plaintiff and eight of the nine crew members, were residents of Tennessee. Our supreme court upheld the trial court’s refusal to dismiss defendant’s motion to transfer based upon forum non conveniens. In so deciding, the court focused upon the situs of plaintiff’s injury, stating:

“The factual connection to the forum is as great, perhaps greater, when the plaintiff chooses the forum where an accident occurred as when he chooses his place of residence. Moreover, Illinois has an interest in protecting persons and property within the State from unsafe practices and conditions; the State should therefore provide a forum in which persons, no matter where they reside, can seek compensation for injuries suffered in Illinois. *** The fact that the injury was suffered in Madison County gives the plaintiff’s claim the aspect, as the court put it in Gulf Oil, of a localized controversy with a local interest in having the controversy ‘decided at home.’ ” Brummett, 111 Ill. 2d at 499-500, 490 N.E.2d at 697.

In Jones v. Searle Laboratories, residents of the United Kingdom filed personal injury actions in Cook County against defendant, a corporation with its principal place of business in Illinois. Plaintiffs alleged that the defendants improperly developed certain oral contraceptives and failed to provide adequate warnings of their potential side effects. Our supreme court reinstated the trial court’s dismissal order, finding that no tort arose until there was an injury, and such injury occurred in the United Kingdom.

Unlike Brummett, plaintiff’s alleged injury in this case is not directly tied to the forum. We do not agree with plaintiff that the injury occurred in Illinois. The gist of plaintiff’s claim is defendant’s alleged misrepresentation of the rental fee for the exhibition space and plaintiff’s subsequent financial injury. It is uncontroverted that the parties entered their oral agreement in Europe and that plaintiff tendered the money to defendant in Europe. Any negotiations between the parties, and therefore, any misrepresentations occurred in Europe. Moreover, we are unpersuaded by plaintiff’s contention that the injury occurred when he discovered the fraud after arriving in Illinois. Illinois has no interest in protecting persons from fraudulent misrepresentation which occurs outside of its borders, particularly when neither party is a resident of Illinois, or even the United States.

Although, as noted above, the resolution of a forum, non conveniens motion lies in the trial court’s sound discretion, our supreme court has consistently favored rulings granting dismissals based upon forum, non conveniens where the cause of action occurred outside the State and no individual plaintiff was an Illinois resident. (Vinson v. Allstate, 144 Ill. 2d 306, 579 N.E.2d 857; Jones v. Searle Laboratories, 93 Ill. 2d 366, 444 N.E.2d 157; Satkowiak v. Chesapeake & Ohio Ry. Co. (1985), 106 Ill. 2d 224, 478 N.E.2d 370; Foster v. Chicago & North Western Transportation Co. (1984), 102 Ill. 2d 378, 466 N.E.2d 198; Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 456 N.E.2d 98; Espinosa v. Norfolk & Western Ry. Co. (1981), 86 Ill. 2d 111, 427 N.E.2d 111; People ex rel. Compagnie Nationals Air France v. Giliberto (1978), 74 Ill. 2d 90, 383 N.E.2d 977.) These cases are persuasive authority here, where the conduct constituting the cause of action occurred abroad and neither party is a resident of Illinois, or even a United States citizen.

In addition to the private considerations, public concerns also point to the desirability of a trial in Europe. The public interest factors enunciated in Gulf Oil include: administrative difficulties caused by litigation in congested centers; the imposition of jury duty on citizens of a forum unrelated to the litigation; local interest in local controversies; and the difficulties caused when a court must “untangle problems in conflicts of laws, and in law foreign to itself.” Gulf Oil, 330 U.S. at 508-09, 91 L. Ed. at 1062-63, 67 S. Ct. at 843.

The docket of the circuit court of Cook County is sufficiently crowded to the point where congestion is of great concern, a factor we must consider before burdening Illinois courts with additional nonresident litigation. (Jones v. Searle Laboratories, 93 Ill. 2d 366, 444 N.E.2d 157; Wieser v. Missouri Pacific R.R. Co., 98 Ill. 2d 359, 456 N.E.2d 98.) Moreover, a trial is an expense to the public, and our taxpayers should not be required to pay for litigation which is unrelated to Illinois, nor should our citizens be burdened by sitting on juries in these cases. (Satkowiak v. Chesapeake & Ohio Ry. Co, 106 Ill. 2d 224, 478 N.E.2d 370.) This is simply not a “local controversy,” but rather is one which is primarily of interest to European citizens. Finally, litigation of this case in Illinois would require our courts to apply foreign law. Illinois courts apply the “most significant contacts” choice of law test, which presumes that the law of the State where the injury occurred applies in an action for misrepresentation. (First National Bank v. Heuer (N.D. Ill. 1988), 702 F. Supp. 173.) Moreover, the place in which defendant allegedly made the misrepresentation is a significant fact. (First National Bank v. Heuer, 702 F. Supp. 173.) For all these reasons, the public concern factors also disfavor an Illinois forum.

For the foregoing reasons, the balance of relevant factors in this case is clearly in defendant’s favor, and the trial court abused its discretion in denying the forum non conveniens motion.

The judgment of the circuit court of Cook County is reversed, and the cause is remanded to the trial court with directions to grant defendant’s motion to dismiss the complaint, on the conditions that defendant will accept service of process and will waive any statute of limitations defense if plaintiff files this action in an appropriate forum within one year of the date of dismissal. We also direct the circuit court to order the release of the $15,000 held in escrow to defendant.

Reversed and remanded with directions.

EGAN, P.J., and RAKOWSKI, J., concur.


text:
    CALDONIA COLEMAN, Indiv., and as Next Friend of Angela Shorty, a Minor, Plaintiffs, v. FRANKLIN BOULEVARD HOSPITAL et al., Defendants and Third-Party Plaintiffs-Appellants (Donald J. Arenson et al., Third-Party Defendants-Appellees).
    First District (6th Division)
    No. 1—91—0708
    Opinion filed March 27, 1992.

      John E. Passarelli, of Arlington Heights, for appellants.
    Cole, Grasso, Fencl & Skinner, Ltd., of Chicago, for appellee Donald J. Arenson.
   JUSTICE McNAMARA

delivered the opinion of the court:

Third-party plaintiffs Franklin Boulevard Hospital (hospital) and Doctor David Hike filed an action in Cook County for contribution against third-party defendants Doctors Donald J. Arenson and Neal R. Frankel, alleging medical malpractice in their treatment of plaintiff Angela Shorty, a minor. The trial court granted third-party defendants’ motion to dismiss with prejudice for failure to state a cause of action. Third-party plaintiffs appeal, contending that the trial court erred in dismissing the complaint because they properly pled a cause of action for implied indemnity against third-party defendants. Third-party plaintiffs agree that they are not entitled to relief under the Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seg.).

We adduce the following background from the affidavits, pleadings and documents filed. On July 3, 1985, Shorty was brought to the first-aid room of the hospital for treatment of a right ankle skin laceration one-inch long and two to three millimeters deep. Dr. Hike sutured the injury and determined that Shorty sustained no injury to the peroneal tendon. On July 12, 1985, Shorty’s ankle was examined at the hospital and the sutures were removed. The wound was determined to be well-healed, and Shorty’s foot was found to be in good and functional condition.

On September 19, 1985, Shorty was examined at Madison Medical Center. There was no indication of a problem or deformity in her right foot. Subsequent examinations at Madison on March 14 and October 6, 1986, did not reveal any muscular or skeletal abnormalities.

On October 15, 1986, third-party defendants diagnosed Shorty as suffering from post-traumatic lacerations of the peroneal tendons of the right foot with a resultant pes varus deformity. Third-party defendants performed corrective surgery on Shorty’s foot on December 3,1986.

Plaintiff’s amended complaint states that third-party plaintiffs were negligent in that they failed to discover that Shorty’s peroneal tendons were severed, failed to treat her for that condition, and that as a result she received severe and permanent injury to her right foot. That suit remains pending in the trial court. Plaintiff has never sought recovery against third-party defendants. The order dismissing third-party plaintiffs’ complaint against third-party defendants is before us because the trial judge entered a special finding of finality pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

On appeal, third-party plaintiffs first contend that third-party defendants are vicariously liable for their alleged subsequent malpractice. Third-party plaintiffs rely upon Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40, in which a minor pedestrian sustained injuries when a motorist struck him while he was standing on the shoulder of a road. The motorist filed a third-party complaint against the treating physician alleging malpractice and seeking indemnity. The Gertz court held that the motorist, as the original tortfeasor, had the right to maintain a third-party action against the physician to be indemnified for the damages to the victim attributable to the physician’s malpractice.

We find, however, that third-party plaintiffs’ reliance upon Gertz is misplaced, because that case was decided when contribution among joint tortfeasors was unavailable in Illinois. Consequently, courts at that time recognized the doctrine of active/passive negligence as a right of “ ‘ “equitable” implied indemnity based upon the relative fault of the parties.’ ” (Frazer v. A.F. Munsterman, Inc. (1988), 123 Ill. 2d 245, 256, 527 N.E.2d 1248, quoting Allison v. Shell Oil Co. (1986), 113 Ill. 2d 26, 30, 495 N.E.2d 496.) Thus, when the conduct of one tortfeasor was considered to be the primary or “active” cause of the damages to the plaintiff, the conduct of the other was considered to be a secondary or “passive” cause of the injury. The passively negligent party was permitted to shift the entire burden of the plaintiff’s loss to the actively negligent tortfeasor. (See Sargent v. Interstate Bakeries, Inc. (1967), 86 Ill. App. 2d 187, 229 N.E.2d 769; Reynolds v. Illinois Bell Telephone Co. (1964), 51 Ill. App. 2d 334, 201 N.E.2d 322.) In the present case, third-party plaintiffs maintain that their alleged failure to discover and treat the severed peroneal tendons in Shorty’s right foot is “passive” negligence, and that because third-party defendants performed the surgery which left Shorty with permanent injury to her foot, their actions constitute “active” negligence.

However, in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 14, 15, 374 N.E.2d 437, our supreme court held that liability for a third-party plaintiff’s damages should be apportioned on the basis of the “relative degree to which the defective product and the employer’s” conduct “contributed to cause plaintiff’s injuries.” In 1979, the General Assembly passed the Contribution Act, which “codified and clarified” Skinner. (See Stephens v. McBride (1983), 97 Ill. 2d 515, 521-22, 455 N.E.2d 54.) Illinois has adopted the theory of comparative negligence and the principles of apportioning rather than affixing liability. In Alvis v. Ribar (1981), 85 Ill. 2d 1, 27, 421 N.E.2d 886, our supreme court determined that total justice can only be attained where the law “apportions damages according to the relative fault of the parties.” As succinctly expressed in Allison v. Shell Oil Co. (113 Ill. 2d at 34, 495 N.E.2d at 501):

“Active-passive indemnity, like contributory negligence, perpetuates inequality by its inability to apportion loss and its refusal to grant any relief whatsoever to a party whose conduct is considered ‘active’ regardless of how much or little other tortfeasors are at fault.”

Thus, third-party plaintiffs’ attempt to shift the entire burden for any damages recoverable by Shorty against them to third-party defendants must fail. Third-party plaintiffs cannot prevail under the outmoded active-passive negligence distinction, which does not comport with the governing principle in this jurisdiction that the costs of accidental injury are to be apportioned in accordance with the relative fault of all concerned in the action. Allison v. Shell Oil, 113 Ill. 2d 26, 495 N.E.2d 496; Alvis v. Ribar, 85 Ill. 2d 1, 421 N.E.2d 886.

Third-party plaintiffs also advance an argument that under implied indemnity, third-party defendants are subject to liability for their subsequent malpractice in treating Shorty. Implied indemnity is based upon principles of restitution: “a contract implied in law arising from the legal obligation of an indemnitee to satisfy liability caused by actions of his indemnitor.” Allison v. Shell Oil, 113 Ill. 2d at 28; Restatement (Second) of Torts §886B, Comment c, at 345 (1979).

To state a cause of action for implied indemnity, a third-party complaint must allege: (1) a pretort relationship between the third-party plaintiff and the third-party defendant, and (2) a qualitative distinction between the conduct of the third-party plaintiff and the third-party defendant. (Van Slambrouck v. Economy Baler Co. (1985), 105 Ill. 2d 462, 475 N.E.2d 867; Brown v. Torin Corp. (1988), 175 Ill. App. 3d 544, 529 N.E.2d 1077.) Classic pretort relationships which have given rise to a duty to indemnity include: lessor and lessee (Mierzejwski v. Stronczek (1968), 100 Ill. App. 2d 68, 241 N.E.2d 573); employer and employee (Embree v. De Kalb Forge Co. (1964), 49 Ill. App. 2d 85, 199 N.E.2d 250); owner and his lessee (Blaszak v. Union Tank Car Co. (1962), 37 Ill. App. 2d 12, 184 N.E.2d 808); and master and servant. Gulf Mobile & Ohio R.R. Co. v. Arthur Dixon Transfer Co. (1951), 343 Ill. App. 148, 98 N.E.2d 783.

In this case, we find no allegations of a pretort relationship between the third-party plaintiffs and third-party defendants in the amended complaint. Indeed, third-party plaintiffs admit in their brief that “[d]efendants and third-party defendants are brought together only because they treated the same plaintiff,” which expressly negates the inference of any pretort relationship. Therefore, we hold that third-party plaintiffs failed to state a cause of action for implied indemnity against third-party defendants.

For the foregoing reasons, the judgment of the circuit court of Cook County dismissing third-party plaintiffs’ complaint for failure to state a cause of action is affirmed.

Judgment affirmed.

LaPORTA and RAKOWSKI, JJ., concur.


text:
    JOHN EVANGELOU, A Minor, by his Mother and Next Friend, Konstantina Evangelou, Plaintiff-Appellant, v. CHILDREN’S MEMORIAL HOSPITAL et al, Defendants-Appellees.
    First District (6th Division)
    No. 1—91—1749
    Opinion filed March 27, 1992.
    Joel H. Greenburg and Mark Szaflarski, both of Joel H. Greenburg, Ltd., of Chicago, for appellant.
    Peterson & Ross, of Chicago (William K. McVisk, Nicholas Anaclerio, Jr., and Sean P. MacCarthy, of counsel), for appellees Children’s Memorial Hospital and Janice R. Klich.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Konstantina Evangelou, in a medical malpractice action sought damages under the expenses of family statute (Ill. Rev. Stat. 1985, ch. 40, par. 1015) in count II of her complaint against defendants Children’s Memorial Hospital and Dr. Janice Klick. The trial court found count II untimely and dismissed it pursuant to section 2— 619(a)(5) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619(a)(5)).

In the original complaint, filed in February 1985, plaintiff, on behalf of her minor son, John Evangelou (John), alleged that he sustained injuries caused by defendants’ negligence during open-heart surgery in December 1982. Plaintiff voluntarily dismissed this action on September 17, 1990. On September 21, 1990, plaintiff refiled the complaint which added count II, stating a cause of action on her own behalf for medical expenses incurred as a result of John’s injuries. The only issue on appeal is whether the trial court properly dismissed count II of plaintiff’s claim as barred by the statute of limitations.

The parties agree that section 13 — 203 of the Code of Civil Procedure governs this case. This statute provides that actions for damages “deriving from injury to the person of another * * * shall be commenced within the same period of time as actions for damages for injury to such other person.” (Ill. Rev. Stat. 1985, ch. 110, par. 13— 203.) The parties disagree, however, as to whether plaintiff’s cause of action is subject to the same tolling of the limitations period that applies to her minor son’s medical negligence cause of action. (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 211.) Plaintiff acknowledges that this court has repeatedly held that the tolling provision does not apply in derivative actions, such as this. (Reimers v. Honda Motor Co. (1986), 150 Ill. App. 3d 840, 502 N.E.2d 428, appeal denied (1987), 114 Ill. 2d 557, 508 N.E.2d 735; Swider v. Holy Cross Hospital (1986), 146 Ill. App. 3d 740, 497 N.E.2d 474, appeal denied (1987), 113 Ill. 2d 585, 505 N.E.2d 362; Curtis v. Womeldorff (1986), 145 Ill. App. 3d 1006, 496 N.E.2d 500; Northern Trust Co. v. Louis A. Weiss Memorial Hospital (1986), 143 Ill. App. 3d 479, 493 N.E.2d 6.) Plaintiff claims, however, that the 1987 statutory amendment, which expressly provides for tolling of the limitations period for derivative claims asserted for the injuries of a minor child, applies retroactively and requires reversal here. The statute, as amended, reads as follows:

“Actions for damages for loss of consortium or other actions deriving from injury to the person of another *** shall be commenced within the same period of time as actions for damages for injury to such other person. Where the time in which the cause of action of the injured person whose injuries give rise to the cause of action brought under this Section is tolled or otherwise extended by any other Section of this Act, including Sec tions 13 — 211, 13 — 212 and 13 — 215, the time in which the cause of action must be brought under this Section is also tolled or extended to coincide with the period of time in which the injured person must commence his or her cause of action." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 13 — 203.

Plaintiff argues that the general principles prohibiting retroactive application of a statutory amendment do not apply here because the amendment merely “recasts” the predecessor statute, adding “clarification language.” In this regard, plaintiff maintains that the 1987 amendment was the legislature’s “prompt response” to this court’s misinterpretation of section 13 — 203 in the above-cited 1986 decisions. Plaintiff urges us, therefore, to construe the predecessor statute to require the same limitations period as the subsequent statute. We decline to do so.

The general rule is that a statutory amendment creates a presumption that the legislature intended to change the law as it formerly existed. However, this principle may be overcome by more persuasive considerations. (Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784.) In Wilbon, our supreme court held that where the legislature enacted a statutory provision five months after a decision of this court, the legislation was a clarification of the law as it existed and not a new amendment changing the law. Thus, the court did not apply the rule prohibiting retroactive application of statutory amendments.

Such considerations, however, are not present here. As plaintiff correctly indicates, the legislature amended section 13 — 203 after this court declined to apply the tolling provision to claims under the expenses of family statute in four 1986 cases. However, as early as 1983, this court held that the limitations period for family expense claims was not tolled under the pre-1987 version of section 13 — 203. (See Severe v. Miller (1983), 120 Ill. App. 3d 550, 458 N.E.2d 173; Fess v. Parke, Davis & Co. (1983), 113 Ill. App. 3d 133, 446 N.E.2d 1255, appeal denied (1983), 94 Ill. 2d 552, 458 N.E.2d 175.) In those two cases, the court reasoned that the plain meaning of the tolling statute restricts its effect to the benefit of minors and that the scope of the tolling statute is not to be judicially enlarged. Moreover, in both Severe and Fess, this court recognized that if the legislature intended a different result, it could enact legislation so providing. (Severe, 120 Ill. App. 3d at 555, 458 N.E.2d at 176; Fess, 113 Ill. App. 3d at 135, 446 N.E.2d at 1256.) Section 13 — 203 was not amended until 1987 and became effective in November 1987. Thus, more than 3V2 years elapsed between the Fess and Severe decisions and the introduction of the legislation. The rule developed in Fess and Severe was settled law by the time the legislation was introduced. If, as plaintiff contends, this court misinterpreted the legislative intent of the pre1987 version of section 13 — 203, the legislature would have acted much sooner than it did. (Sanchez v. Access Associates (1989), 179 Ill. App. 3d 961, 535 N.E.2d 27.) We therefore reject plaintiff’s argument that under Wilbon the amendment was a prompt response to correct this court’s decisions in Reimers, Swider, Curtis, and Northern Trust. Moreover, we find nothing here sufficiently persuasive to overcome the presumption that section 13 — 203, as amended, changed the law as it formerly existed. For these reasons, Wilbon is inapposite and does not support plaintiff’s claim for retroactive application of the statute.

It is well settled that the statute of limitations in force at the time a cause of action arises governs the time within which the action will lie. (Sanchez v. Access Associates, 179 Ill. App. 3d 961, 535 N.E.2d 27; Beesley v. Spencer (1861), 25 Ill. 199.) Therefore, a statutory amendment enacted subsequent to the accrual of a cause of action which extends the time for filing suit will not be applied retroactively to revive a previously barred cause of action. (Sanchez v. Access Associates, 179 Ill. App. 3d 961, 535 N.E.2d 27; Arnold Engineering, Inc. v. Industrial Comm’n (1978), 72 Ill. 2d 161, 380 N.E.2d 782.) The cause of action in this case arose in December 1982. The amended statute, which applies the tolling provision to a derivative action, was not effective until November 1987, well after the accrual of the cause of action. Thus, based upon the foregoing principles, we believe that the trial court correctly refused to apply the tolling provision to this case.

Finally, at oral argument, plaintiff claimed that the trial court’s dismissal of count II harms the interests of the minor. However, the minor’s cause of action is independent and is not affected by the limitations period applicable to plaintiff’s cause of action.

For the foregoing reasons, the judgment of the circuit court of Cook County dismissing count II of plaintiff’s complaint is affirmed.

Judgment affirmed.

EGAN, P.J., and RAKOWSKI, J., concur.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. MARK TAUSSIG, Defendant-Appellant (Max A. Waisvisc et al., Defendants).
    First District (6th Division)
    No. 1—91—2122
    Opinion filed March 27, 1992.
    Barry B. Gross, Clifford E. Yuknis, and Cary E. Donham, all of Shefsky & Froelich, Ltd., of Chicago, for appellant.
    Frank C. Stevens and Hugh J. Doyle, both of Taylor, Miller, Strowl, Hoffnagle & Merletti, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, State Farm Mutual Automobile Insurance Company, sought a declaratory judgment that it owed no duty to defend or indemnify defendant, Mark Taussig, against certain claims arising out of an automobile accident. Defendant claimed coverage pursuant to a policy issued by plaintiff to defendant’s father, Stuart Taussig. The trial court granted plaintiff’s motion for summary judgment. Defendant appeals, contending that the trial court erred in its construction of the insurance policy and that the existence of genuine issues of material fact precludes the grant of summary judgment in plaintiff’s favor.

We adduce the following background from the affidavits, pleadings and documents filed. Defendant, age 20, attended classes at Kendall College until December 16, 1987. On December 25, 1987, defendant moved from his parents’ home in Highland Park into a two-bedroom apartment in Evanston with two roommates. Defendant’s father signed the lease on his behalf and paid his portion of the rent and utility bills. Defendant slept in his own bedroom and ate most of his meals at the Evanston apartment. Defendant was not married. Defendant returned to Highland Park approximately three or four times to visit during the first month after moving to Evanston.

The automobile accident occurred on January 31, 1988, while defendant and two friends were on a ski trip in Wisconsin. Defendant’s roommate, Daniel R. Lyons, rented a 1987 Chevrolet Nova from Warrenco, Inc., doing business as Budget Rent-A-Car of Wilmette, because defendant was too young to do so. At the time the vehicle was rented, the agent refused to add defendant’s name as an additional driver because of his age and informed him that he could not drive the car. Lyons did not accompany the group on the ski trip and granted permission to defendant to drive the rental automobile. After the rental car was destroyed in the accident, Warrenco filed suit against defendant and Lyons. (Lyons has since filed a counterclaim for contribution against defendant.)

At the time of the accident, defendant was employed full time as a runner for a trading company located in the Chicago Mercantile Exchange. Defendant testified that at the time of the accident, he was not enrolled in any type of school; rather, it was his intention to “go out and make it on [his] own.” His father wished him to return to school. Defendant was covered under his father’s health insurance policy and listed the Highland Park address on his driver’s license and income tax return. Defendant left a number of personal belongings in his room at the Highland Park house, including clothing, stereo equipment and furniture. According to defendant, he considered the Evanston apartment as a temporary living situation and that his permanent address was in Highland Park.

After the accident, defendant was in a hospital briefly. Defendant lived in the Evanston apartment until October 1988, at which time he entered a rehabilitation program for a 30-day period. After that time, defendant lived in a three-quarter way house for approximately eight months, and then returned to his parents’ Highland Park home.

Plaintiff issued a policy of automobile liability insurance to defendant’s father, which provides coverage for the named insured, his spouse, and their relatives. The policy defines “relative” as:

“[A] person related to you or your spouse by blood, marriage or adoption who lives with you. It includes your unmarried and unemancipated child away at school.” (Emphasis added.)

On appeal, defendant contends that the policy definition of “relative” is ambiguous. Defendant maintains that the trial court erred in granting summary judgment because genuine issues of material fact exist as to whether defendant was “living with” his parents in Highland Park at the time of the accident. Alternatively, defendant argues that the record demonstrates that defendant was an unmarried and unemancipated child away at school.

Initially, we note that the purpose of summary judgment is to determine whether there are any genuine issues of material fact. (Kelman v. University of Chicago (1988), 166 Ill. App. 3d 137, 519 N.E.2d 708.) An order granting summary judgment is appropriate where the pleadings and depositions on file, together with the affidavits, if any, demonstrate there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).

We turn first to the issue of whether the policy definition of “relative” is ambiguous. In Coley v. State Farm Mutual Automobile Insurance Co. (1989), 178 Ill. App. 3d 1077, 534 N.E.2d 220, this court construed the identical definition of “relative” as found in the present policy. In that case, the grandfather of the decedent brought a suit for declaratory judgment against his own insurer to determine whether an underinsured motorist provision of the policy covered the decedent. The decedent had lived with his grandfather for two years before joining the Air Force. At the time of the accident, the decedent was still in the Air Force and had been stationed at several locations throughout the United States and overseas. The decedent kept some of his belongings at his grandfather’s house and had continued to use it as his address on official documents and to receive mail. The decedent also intended to return to his grandfather’s home upon his discharge. This court determined that the decedent was a young, emancipated man serving in the armed forces, where he could have only an occasional, transitory presence in his grandfather’s home; thus, he did not “live with” his grandfather for the purposes of the insurance policy.

Defendant cites cases from other jurisdictions as support for his position that the policy definition of “relative” is ambiguous. However, this court in Coley v. State Farm, found “no ambiguity which would require us to construe the contract against [State Farm] or go behind the contract to consider its underlying purpose.” (Coley v. State Farm, 178 Ill. App. 3d at 1082, 534 N.E.2d at 222.) Similarly, this court also found no ambiguity in the provision at issue in State Farm Mutual Automobile Insurance Co. v. Byrne (1987), 156 Ill. App. 3d 1098, 510 N.E.2d 131. We therefore conclude that no ambiguity exists in the policy definition of “relative.”

Defendant next asserts that he regarded the Evanston apartment as only a temporary living situation and that his permanent address was in Highland Park. Specifically, defendant states that he still had a room at the Highland Park home where he kept his personal belongings; that he visited at least once a week; that some of his bills were sent to the Highland Park address; that he was still on his father’s health insurance policy; and that his income tax return, driver’s license and voter’s registration listed the Highland Park address. Defendant’s father also stated in his deposition that he believed his son could not make it on his own without his financial, emotional and psychological assistance, and that he contributed to his son’s living expenses.

We are unpersuaded by defendant’s argument that simply because he still had a room in his parents’ home and left some of his personal belongings there and continued to use the mailing address, he was still living with them. The record indicates that on December 25, 1987, defendant moved out of his parents’ home and into his own apartment. Defendant’s father signed the lease on his behalf. Most importantly, defendant testified that in the month preceding the January 31, 1988, accident, he slept and ate most of his meals at the Evanston apartment, where he remained until October 1988. Also, as previously mentioned in Coley v. State Farm, the fact that defendant continued to use the mailing address and occasionally visited his parents is not sufficient to meet the “living with” standard for purposes of this insurance policy.

Defendant’s alternate argument posits that he should be included under the policy as an unmarried, unemancipated child “away at school.” The term “full-time student” envisions a person’s enrollment in an academic institution and attendance at classes on a substantial basis. Margie Bridals, Inc. v. Mutual Benefit Life Insurance Co. (1978), 62 Ill. App. 3d 542, 379 N.E.2d 62.

We find defendant’s argument that he was “away at school” to be without merit because defendant voluntarily terminated his education at Kendall College on December 16, 1987, well before the January 31, 1988, accident. Defendant did not enroll in the winter term, which began on January 6, 1988, nor was he enrolled in classes at any other school. Indeed, defendant submitted an affidavit which stated that as of January 31, 1988, he was not sure if he would return to classes at Kendall College. The fact that defendant’s father wished him to return to school is of no significance. Finally, we note in defendant’s affidavit that it was his intention to “go out and make it on his own.” Toward that goal, defendant obtained full-time employment thereby negating his position that he was “away at school.”

For the foregoing reasons, the judgment of the circuit court of Cook County granting summary judgment on behalf of plaintiff is affirmed.

Judgment affirmed.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE Q. JONES, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—0700
    Opinion filed March 30, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Elyse Krug Miller, Assistant Public Defender, of counsel), for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Miles J. Keleher, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Joe Q. Jones was convicted of possession of an automobile certificate of title without complete assignment pursuant to section 4 — 104(a)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 951/2, par. 4 — 104(a)(2)) for which he received a prison sentence of two years. Although defendant has challenged both his conviction and sentence, we need only address defendant’s contention that section 4— 104(a)(2) violates due process guarantees and therefore is unconstitutional because it fails to require a culpable intent.

In People v. Gean (1991), 143 Ill. 2d 281, 573 N.E.2d 818, our supreme court determined, in part, that section 4 — 104(a)(2) required the mental state of knowledge, concluding that the section did not constitute an absolute liability offense. To obtain a conviction, the State needed only to prove that an offender possessed a certificate of title knowing it was without complete assignment.

More recently, in People v. Tolliver (1992), 147 Ill. 2d 397, the court, reaffirming the constitutionality of section 4 — 104(a)(2), determined its holding in Gean was overly expansive, creating, under the language of section 4 — 104(a)(2), the possibility of a felony based on innocent conduct. (Tolliver, 147 Ill. 2d at 401.) The court therefore modified the mental state of knowledge required under section 4— 104(a)(2) as “criminal knowledge or knowledge with an intent to defraud or commit a crime.” Tolliver, 147 Ill. 2d at 400-01.

Based on Tolliver, defendant’s contentions that section 4— 104(a)(2) is unconstitutional for lack of culpable intent are without merit. Nevertheless, because we conclude the evidence presented at trial was insufficient to establish that defendant possessed the requisite mental state under section 4 — 104(a)(2), we must reverse his conviction. See Tolliver, 147 Ill. 2d at 399-400.

At trial, the State presented its case against defendant by way of the stipulated testimony of Abraham Coach and Dixmoor, Illinois, police officer Richard Wright.

While on routine patrol in the early morning hours of May 19, 1986, Wright stopped a late model automobile driven by Marvin Jones, defendant’s son, after noticing the vehicle had mismatching front and rear license plates. Wright arrested Jones for driving with a suspended license.

At the police station, Wright determined that neither of the license plates was registered to the vehicle driven by Jones. In fact, Wright discovered that the vehicle had been reported stolen from Coach on May 6,1986.

Shortly thereafter, defendant arrived at the police station and produced the certificate of title to the vehicle. Although the title bore what appeared to be Coach’s signature, it contained no date of sale or assignment to a new owner. Defendant was then arrested for possession of the incomplete title.

Coach was summoned to the police station. There, he informed Wright that he kept the title in the glove compartment and never sold the vehicle to defendant. Further, what had appeared to be Coach's signature on the title was a forgery.

It was Jones’ testimony that he believed the vehicle actually belonged to defendant and that one of Jones’ brothers had brought the car to him two days before his arrest and allowed him to use it.

It was defendant’s testimony that he had purchased the vehicle from a man, representing himself to be Coach, who defendant later learned was Coach’s nephew. Defendant stated that he had been introduced to Coach’s nephew by a mutual acquaintance who informed defendant he knew a man who wanted to sell an automobile. After verifying that the vehicle’s identification number appeared on the certificate of title, defendant purchased the vehicle. Coach’s name had been signed on the certificate of title at that time.

Virtually no evidence was presented at trial which could establish defendant’s criminal knowledge or intent to defraud. The only evidence presented by the State was that defendant was arrested after producing the incomplete title at the police station on May 19, 1986. Nothing in defendant’s own testimony reveals the requisite intent. We therefore reverse defendant’s conviction.

In light of that reversal, we need not address defendant’s other claims.

Reversed.

BUCKLEY, P.J., and CAMPBELL, J., concur.