author: JUSTICE UNVERZAGT

text:
    GEMA LAVAZZI, Adm’x of the Estate of Cayetano Lavazzi, Deceased, Plaintiff-Appellant, v. McDONALD’S CORPORATION, Defendant-Appellee (Weiler and Company et al., Defendants and Third-Party Plaintiffs; Otto and Sons, Inc., Third-Party Defendant).
    Second District
    No. 2—92—0163
    Opinion filed December 31, 1992.

      Roy I. Peregrine, of Peregrine, Stime, Newman, Ritzman & Bruckner, Ltd., of Wheaton, and Keith L. Davidson, of Louis G. Davidson & Associates, Ltd., of Chicago, for appellant.

      Michael J. Pavlisin and John J. O’Connor, both of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Gema Lavazzi, administratrix of the estate of her husband, Cayetano Lavazzi, brought an action against several defendants for the wrongful death of her husband. One of the defendants was McDonald’s Corporation (McDonald’s). In count IV of her amended complaint, the only count directed against McDonald’s, plaintiff alleged that the negligence of McDonald’s (hereinafter referred to as defendant) was one of the causes of the death of her husband. After determining as a matter of law that defendant did not owe a duty to plaintiff’s deceased (decedent), the trial court granted summary judgment in favor of defendant and ordered that there was no just reason to delay enforcement or appeal. Plaintiff appeals the summary judgment. The issue on appeal is whether defendant owed a legal duty to decedent and whether the trial court properly decided that question as a matter of law by summary judgment.

The relevant facts are as follows. On April 23, 1988, decedent was cleaning and operating a meat mixing and grinding machine (mixer/ grinder) in the course of his employment with Otto and Sons, Inc. (Otto). Somehow, decedent got inside the mixer/grinder and was found dead inside the mixer/grinder. When decedent was found, the mixer/grinder was running in the mixing mode. At the time of decedent’s death, Otto was a meat products supplier to defendant, a corporation engaged in the management and franchising of restaurants in Illinois and elsewhere.

Defendant and Otto had a close business relationship. Peter Mazza, an employee of defendant, testified during his deposition that Otto had been “McDonaldized.” Mazza explained that by this he meant that Otto understood “our culture, they know how to get around within the company, who to talk to, and how to get things done.”

Defendant did not have a written contract with Otto. Otto was one of only five United States suppliers of ground beef patties and other meat products to defendant. Otto was the exclusive supplier of these meat products to defendant’s franchisees within a designated area of the country. Defendant was Otto’s only customer. Defendant purchased Otto’s entire output.

Defendant required Otto to meet and maintain certain standards with respect to the quality of the meat products defendant purchased from Otto. Defendant required Otto to supply only wholesome, high-grade meat; to deliver the meat in a certain specific condition; to maintain certain standards of cleanliness; and to conduct its operation in a manner to maintain the quality and safety of the meat products.

Defendant monitored the quality of the meat products it purchased from Otto in several ways. Among the ways defendant monitored Otto was through periodic quality assurance reviews, sanitation audits, and supplier status reports. Defendant generally refers to these monitoring activities as audits. Some of the audits occurred at Otto’s plant.

Pretrial discovery disclosed records of three audits in defendant’s files. The earliest of these audit records was a quality assurance review report. Paul Simmons, employed by defendant as a quality assurance supervisor, drafted the report in 1985. The report consists of two, single-spaced typewritten pages containing about 23 separate items of information. Plaintiff cites two of the items in the report. The first item states “[t]he equipment is in good working order and maintenance staff are very knowledgeable of equipment.” The second item states “[mjanagement could spend more time on the production floor to review product and equipment, as well as spending more time with the employees at their work stations. Field Service could also benefit by spending some time on the production floor.”

The second audit report found in defendant’s files was a sanitation audit report. Simmons also prepared this report. The sanitation audit report was a summary of a meeting at Otto’s plant on September 24, 1987, which was attended by Simmons and eight other people including Otto’s plant supervisor and other Otto employees. The information in the sanitation audit report could have come from either the defendant’s employees or Otto’s employees who attended the meeting. The report consists of three typewritten pages. The first item in the report is a statement showing that the purpose of the meeting was to “Review the sanitation program and determine the level of food safety at the facility.” The specific evidence plaintiff points to in this sanitation audit report is a statement that the “Plant is equipped with electrical lockouts including lighted indicators for employee safety.” Plaintiff also notes that the report lists one of the benefits of reducing high pressure and increasing nozzle size as “Safety.”

The third audit report found in defendant’s files was a plant visit and supplier status report dated December 13, 1988 (nearly eight months after the incident in question here). Plaintiff notes that the report, under the heading “Plant Requirements and Recommendations,” contains the following statement:

“General GMP’s [Good Manufacturing Practices] and attention to detail were lacking. Examples — Production Supervisors were not wearing hair nets or beard nets, they were wearing watches and jewelry. Tools were laying [sic] on equipment with no holders or safety precautions. Broken Combo’s in cooler, bloody floor. Large cage [sic] of alcohol in production cooler (Christmas gifts). In general, plant was not its usual quality condition.”

In addition to the audit reports, plaintiff notes that the sign outside Otto’s plant shows that Otto & Sons are “PROCESSORS OF MEAT PRODUCTS FOR McDONALDS.” The sign also contains defendant’s logo, the golden arches.

Plaintiff contends that the foregoing facts are sufficient to show that, or at least raise a question of fact whether, defendant had a legal duty to exercise due care in guarding against injury to decedent during the course of decedent’s employment with Otto. Plaintiff argues that this duty arose from defendant’s voluntary undertaking of the duty or from defendant’s total control of Otto and Otto’s plant.

Defendant denies that it had total control of Otto or Otto’s plant. Defendant asserts that it had a business relationship with Otto in which it purchased goods from Otto but did not control Otto. Defendant specifically points to the fact that it never required or directed Otto to use a certain type of mixer/grinder at its plant. Defendant also notes that it is undisputed that defendant did not participate in the design, purchase, or installation of the mixer/grinder and that there is no evidence showing defendant ever inspected the mixer/ grinder.

Defendant asserts that plaintiff has not shown a voluntary undertaking of a duty by defendant for the safety of Otto’s employees. Defendant contends that the 1985 quality assurance review report drafted by Simmons was a compilation of information obtained from several sources. These sources included Simmons’ visits to Otto’s plant as well as observations from other employees of the defendant, restaurant licensees, and other suppliers. Defendant argues that the information was only used to monitor the quality of the meat product and plant sanitation.

Defendant further contends that the sanitation audit report also contained information from several sources. Defendant notes that the report was based on a combination of observations and information from all those in attendance at the September 24, 1987, meeting, including five of Otto’s employees. Defendant maintains that the observation about the electric lockouts was most likely made by the cleaning specialist in attendance at the meeting or one of Otto’s employees. Defendant notes that Simmons’ only responsibility during a sanitation audit was to check the quality of the meat product and that Simmons did not check to see if the equipment was in good working order. Finally, defendant notes that Joseph Zeisberger, Otto’s plant engineer since 1973, is responsible for maintaining all the mechanical systems and equipment at Otto’s plant.

Defendant asserts that whether it owed a duty to decedent is a question of law properly decided by a trial court. Defendant argues that the trial court properly ruled that it owed no duty to decedent and therefore properly granted its motion for summary judgment.

A court should grant a motion for summary judgment when the pleadings, depositions, admissions and affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. (See Ill. Rev. Stat. 1989, ch. 110, par. 2—1005(c).) Thus, summary judgment is proper when a court may determine an issue as a question of law. Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421.

While the goal of expeditious disposition of a lawsuit by the use of summary judgment is encouraged, it is a drastic means to disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271.) Accordingly, a court ruling on a motion for summary judgment must strictly construe the evidence against the movant and liberally in favor of the nonmoving party. Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 234.

Nonetheless, in order to survive a motion for summary judgment, the nonmoving party must come forward with evidence establishing a genuine issue of fact. (Hotze v. Daleiden (1992), 229 Ill. App. 3d 301, 305.) Summary judgment in favor of a defendant is proper where a plaintiff has not established an essential element of a cause of action. (Gresham v. Kirby (1992), 229 Ill. App. 3d 952, 954-55.) One of the essential elements of an action for negligence which the plaintiff must set out is the existence of a duty owed by the defendant to the plaintiff. Vesey v. Chicago Housing Authority (1991), 145 Ill. 2d 404, 411.

Here, plaintiff concedes that there is no independent duty in Illinois or at common law for a buyer of goods such as defendant with respect to the safety of the employees of the supplier of the goods. However, plaintiff claims that defendant voluntarily undertook a duty of care for the safety of Otto’s employees and that this duty extended to decedent. In addition, plaintiff claims that defendant exercised such total control of Otto that defendant’s control of Otto gave rise to a duty for defendant to guard against injury to Otto’s employees. We •will first consider the voluntary undertaking claim.

Liability can arise from the negligent performance of a voluntarily undertaken duty. (Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 209.) Whether a defendant has voluntarily undertaken a legal duty to a plaintiff seeking to bring a negligence action must be determined by a court as a question of law and is properly addressed by the court on a motion for summary judgment. Morgan v. 253 East Delaware Condominium Association (1992), 231 Ill. App. 3d 208, 211-12.

Based upon the foregoing principles of law, we find that a review of the facts of this case supports the trial court’s grant of summary judgment in favor of defendant. We agree with the circuit court that as a matter of law, defendant did not voluntarily undertake a legal duty of care for decedent’s safety. Construing the evidence in the record liberally in plaintiff’s favor clearly shows that defendant did not undertake a duty to care for the safety of Otto’s employees. While it could be argued that strictly construing the references to safety in defendant’s audit reports shows that the defendant had some concern for the safety of Otto’s workers, the record as a whole does not support an inference that defendant undertook a duty of care for their safety. Defendant limited its monitoring of Otto to audits intended to insure that the products it purchased from Otto met its sanitation standards and was safe for its consumers. Defendant’s employees testified that defendant never conducted worker safety inspections at Otto’s plant. The testimony of Otto’s employees agreed. Otto’s plant manager testified she was responsible for worker safety at the plant and she never discussed this with any of defendant’s employees. Defendant certainly never inspected the mixer/grinder in question. The design, selection, installation, modification and maintenance of the mixer/grinder was done by or under the supervision of Otto’s employees without input from defendant. Based on the record as a whole, we find that as a matter of law defendant did not voluntarily undertake a duty to care for the safety of Otto’s employees including decedent.

Plaintiff’s reliance on Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, is misplaced. In Nelson, our supreme court, construing Florida law, held that the defendant insurance company’s gratuitous safety inspections and safety engineering services with respect to a hoist on a construction site gave rise to a duty to plaintiff construction workers. (Nelson, 31 Ill. 2d at 83.) The plaintiffs were employees of the insured general contractor and various subcontractors. Seven of the plaintiffs were killed and thirteen others severely injured when the hoist cable broke and the hoist carrying the plaintiffs plunged six floors to the ground. In reaching its conclusion, the Nelson court specifically noted: (1) that defendant had repeatedly advertised that it provided safety engineering services which could increase an insured’s worker safety and lower an insured’s costs; (2) that defendant’s safety engineer, a qualified elevator inspector, made frequent safety inspections which included careful inspection of the hoist which he knew was used as an elevator by the construction workers; (3) that defendant’s safety engineer filed reports of his safety inspections with defendant and the insured and the reports specifically mentioned the hoist and sometimes included recommendations for changes to improve safety; and (4) that the insured relied on defendant’s safety inspections and did not employ a safety engineer or safety inspector of its own. Nelson, 31 Ill. 2d at 79-83.

Here, plaintiff posits on appeal that defendant’s conduct was similar to the defendant’s conduct in Nelson and even went far beyond the conduct in Nelson. We disagree. In this case, defendant did not hold itself out to Otto as a provider of safety engineering services or safety inspections. While defendant established sanitation standards for the product it purchased from Otto and monitored the product to insure these standards were met, the record shows that defendant did not make safety inspections of Otto’s plant to insure worker safety there. At most, the audit reports in the record indicate that defendant occasionally took note of limited worker safety considerations. In addition, the record clearly shows that defendant, unlike the Nelson defendant, did not specifically focus any attention during its audits on the piece of equipment involved in the injury. This case is also different than Nelson because Otto had its own safety personnel and procedures including a plant engineer whose duties included safety inspections of the machinery in the plant. In contrast, Simmons, defendant’s employee who drafted two of the audit reports, was not a safety inspector or engineer of any kind. Finally, this case is different from Nelson in that the record shows that Otto did not rely on defendant for employee safety. Otto’s plant supervisor testified during her deposition that she was in charge of employee safety throughout the plant, that she frequently met with defendant’s employees, but that she had never discussed the safety of Otto’s employees with any of defendant’s employees.

Based on the foregoing, we conclude that defendant did not voluntarily undertake a duty to guard against injury to Otto’s employees. We find that the circuit court properly decided this issue as a question of law.

We next consider plaintiff’s claim that defendant exercised total control of Otto or Otto’s plant and that this control gave rise to a duty for defendant to care for the safety of Otto’s employees. Plaintiff first repeats its contentions that defendant’s audit reports show that defendant conducted safety inspections and expected Otto to conform its conduct to the standards and recommendations contained in the audit reports. As seen above, the evidence in the record does not support these contentions. There is no evidence that defendant made worker safety inspections. There is no evidence that defendant made recommendations concerning Otto’s workers’ safety. The 1985 quality assurance review report simply notes that the equipment is in good working order, the maintenance staff is knowledgeable about the equipment, and that management could spend more time on the production floor. When viewed in the context of the entire report, these statements do not show that defendant controlled Otto but are simply observations made in support of a product quality review. Similarly, the 1987 sanitation audit report merely notes that the plant is equipped with electrical lockouts and lighted indicators for employee safety. This statement does not show that these devices were inspected and does not make any recommendation regarding them. In the context of the entire report, the statement is merely a detailed observation made in an overall general observation of the plant’s equipment with respect to sanitation. The plant visit and supplier status report was dated December 13, 1988, nearly eight months after the incident in question here. The report merely listed several facts to support its conclusion that the plant was not in its usual quality condition. This statement was made in the context of product quality, not worker safety. Contrary to plaintiff’s assertions, we find that none of the audit reports either individually or cumulatively supports an inference that defendant controlled Otto or the safety of Otto’s employees.

Plaintiff next contends that defendant’s “complete right to control” Otto is evidenced by the nature of Otto’s business relationship with defendant. Plaintiff points to the fact that defendant was Otto’s only customer, posits that defendant therefore had the power to determine Otto’s very survival, and concludes that defendant “possessed complete economic control” of Otto.

We find plaintiff’s reasoning unpersuasive. Except for the fact that defendant is Otto’s only customer, plaintiff’s analysis is purely speculative. Plaintiff does not provide any authority for her position that a customer who purchases the entire output of a supplier therefore necessarily controls the supplier. Nor does plaintiff provide any authority for her contention that if a customer has economic control of a supplier, then the customer is responsible for the supplier’s workers’ safety.

Plaintiff’s reliance on Martin v. McDonald’s Corp. (1991), 213 Ill. App. 3d 487, is inapposite. In Martin, the defendant licensor controlled one aspect of its licensee’s operation — security. The Martin court concluded that by its control of the licensee’s security procedures the defendant voluntarily undertook to provide for the security of its licensee’s employees and that a duty to provide security thus arose. (Martin, 213 Ill. App. 3d at 492.) In reaching this conclusion, the court noted that defendant’s regional security supervisor acted directly as the security supervisor of the licensee, that the licensee did not have an operations manager or security supervisor of its own, and that defendant provided detailed security procedures to be followed by the licensee’s employees. (Martin, 213 Ill. App. 3d at 491-92.) In this case, none of defendant’s employees acted as direct supervisors of Otto’s employees, Otto had its own safety personnel and procedures, and all of the safety procedures to be followed by Otto’s employees came from Otto’s safety supervisors.

Based on the foregoing, we conclude that plaintiff’s claim that defendant controlled Otto because of defendant’s economic relationship with Otto is without merit. Furthermore, assuming, arguendo, that defendant did exercise economic control of Otto, plaintiff has failed to show that this gave rise to a duty for defendant to guard against injury to Otto’s employees. Plaintiff has also failed to show that defendant specifically controlled Otto’s safety procedures. The record clearly shows that Otto exercised independent control of its workers’ safety. Finally, we are guided by a recent supreme court decision which took a narrow construction of an alleged voluntary undertaking of duty on public policy grounds. (Frye v. Medicare-Glaser Corp. (1992), 153 Ill. 2d 26.) We believe there are public policy grounds for taking a narrow construction of any assumption of duty by control in this case. The public policy concern is that such a precedent could lead to a result where any buyer who purchased the entire output of a supplier would necessarily be held responsible for the safety of the supplier’s workers.

Plaintiff’s last contention with respect to defendant’s alleged control giving rise to a duty concerns Otto’s use of defendant’s name and logo (the golden arches) on its outdoor sign. Plaintiff does not cite any authority to support its contention that Otto’s use of defendant’s name and logo is tantamount to control by defendant.

Defendant argues that the situation is analogous to franchisor-franchisee cases which hold that when a franchisee uses the franchisor’s logo it does not necessarily mean that the franchisor controls the franchisee. These cases and the related independent contractor cases generally hold that when a franchisee which uses a franchisor’s logo or an independent contractor which uses an employer’s logo retains day-to-day control of operations such as hiring and firing employees, payroll, worker’s compensation insurance, and taxes, then the franchisee or independent contractor is deemed to control itself and therefore to be liable for its worker’s safety and the franchisor or employer of the independent contractor is not liable. (Coty v. U.S. Slicing Machine Co. (1978), 58 Ill. App. 3d 237, 240-42.) A right to rescind a contract or call off the work is generally insufficient to establish control and impose liability for workers’ safety under either the franchisee or employer-independent contractor theories. Coty, 58 Ill. App. 3d at 242.

Here, the record does not specifically categorize the relationship between defendant and Otto. There is nothing to show that defendant is a franchisor of Otto. The relationship is more in the nature of an employer-independent contractor. The question then becomes whether defendant had control over Otto’s day-to-day operations. The record shows that defendant did not have such control. Defendant’s employees testified that the purpose of their audits was to insure that the quality of the product met defendant’s standards. There is nothing in the record to show that defendant had any control over Otto’s day-today operations such as hiring and firing employees, payroll, worker’s compensation, or taxes. This is supported by the testimony of Otto’s plant manager. We therefore conclude that defendant did not have control of Otto despite the fact that Otto used defendant’s name and logo on its outdoor plant sign. The fact that Otto may have been “Mc-Donaldized” does not change our conclusion.

For all the above reasons, we conclude that defendant did not control Otto or Otto’s employees’ safety and therefore did not have a duty of care for the safety of Otto’s workers, including decedent. This question was correctly decided by the circuit court as a matter of law.

The circuit court grant of summary judgment in favor of defendant is affirmed.

Affirmed.

WOODWARD and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    BENEFICIAL DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. THE CITY OF HIGHLAND PARK et al., Defendants-Appellees (Tennyson Development Corporation et al., Plaintiffs).
    Second District
    No. 2—91—1043
    Opinion filed December 31, 1992.

      Everette M. Hill, Jr., of Arnstein & Lehr, of Chicago, for appellant.
    Ken Lodge and Ronald L. Sandack, both of Burke, Smith & Williams, of Chicago, and Erwin W. Jentsch, of Mt. Prospect, for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiff, Beneficial Development Corporation (Beneficial), appeals the declaratory judgment of the trial court in favor of defendants, the City of Highland Park (City) and Shaf Home Builders, Inc. (Shaf). Plaintiff contends the trial court erred in declaring the imposition of certain recapture fees against plaintiff pursuant to a recapture agreement between the City and Shaf was permissible and in awarding only $5,445 for Shaf’s alleged trespass to a portion of the property at issue. We affirm.

As a preliminary matter, we address Shaf’s motion taken with the case to strike certain portions of Beneficial’s brief on behalf of non-parties Tennyson Development Corporation (Tennyson) and Betty Holst (Holst). Shaf contends the brief filed by Beneficial seeks relief on behalf of Tennyson and Holst in violation of this court’s order striking relief sought by nonparties from any motions before the court. We agree.

The notice of appeal filed in this case did not name Tennyson or Holst as a party to the appeal. Only Beneficial was named as the plaintiff-appellant in the body of the notice of appeal, and the notice was signed by “Everette M. Hill, Attorney for Plaintiff-appellant Beneficial Development Corporation.”

Beneficial argues that because Mr. Hill was the attorney of record for all plaintiffs in the trial court, his signature on the notice of appeal was sufficient to meet the requirements of Rule 303. However, Supreme Court Rule 303 (134 Ill. 2d R. 303) requires all appellants be named in the notice of appeal and the notice be signed by each appellant or his or her attorney. The notice of appeal clearly named Beneficial, and Beneficial alone, as plaintiff-appellant. Accordingly, we consider this appeal to be taken only by Beneficial. See People v. Krueger (1986), 146 Ill. App. 3d 530, 533.

Betty Holst owned a five-acre parcel of property in Highland Park, Illinois. Although no plat of subdivision had been filed, in October 1988, Holst sold two of her five acres to Tennyson Development Corporation for $175,000. Simultaneously, Tennyson sold those two acres to Beneficial for $950,000, which included the cost of a 6,000-square-foot house to be constructed on the lots at an estimated cost of $750,000. None of the plaintiffs below applied for a building permit or subdivision approval for their property.

The five acres originally owned by Holst (Holst property) adjoin a 22-acre parcel of land known as the Tara subdivision which is owned by defendant Shaf. The Highland Park city council approved the Tara subdivision preliminary plat on September 6, 1986, and required Shaf to enter into a subdivider’s agreement with the City to ensure the completion of all required subdivision improvements. Chapter 151 of the code of ordinances of Highland Park requires subdividers to install water mains, storm and sanitary sewers, streets, sidewalks, streetlights, and other public improvements, as a condition precedent to the acceptance of a final map of any subdivision. (Highland Park, Ill., Code of Ordinances, ch. 151, par. 151.125 et seq.) The City and Shaf entered into the subdivider’s agreement on May 6,1987.

Because these improvements benefitted the Holst property, the subdivider’s agreement provided for the execution of a recapture agreement requiring the City to reimburse Shaf for a portion of the cost of constructing the improvements at the time the owners of the Holst property apply for subdivision plat approval or wish to tap into, utilize or extend the improvements. The City would collect that portion of the cost from the owners of the Holst property and reimburse Shaf with those monies. The recapture agreement was also entered into on May 6, 1987.

The recapture agreement contained the City engineer’s estimate of the total cost of the required improvements. The cost was estimated at $628,000. The total area involved equaled 27 acres: 22 acres in the Tara subdivision and 5 acres in the Holst parcel. Therefore, the City determined that the Holst property owners would be required to reimburse the City for of the public improvement costs — a recapture fee of $116,296. An original copy of the agreement was filed with the recorder of deeds of Lake County to notify persons interested in the subdivision and the Holst property of the fact that there would be a charge for the connection and use of the public improvements constructed under the agreement.

Plaintiff’s third amended complaint, which requested a declaration of rights of the parties, alleged that the City assessed certain recapture fees without authority, that the City deprived plaintiffs of their property rights under color of law and that Shaf and the City unlawfully committed a trespass on an easement on plaintiffs’ property by constructing a roadway.

Robert Hamilton, a civil engineer, testified for plaintiff at trial. He stated that the on-site improvements to the Tara subdivision did not benefit the Holst property, but most of the off-site improvements such as the street construction, sanitary sewer and water main construction are of use to the Holst property. However, he added that the majority of the storm sewer construction did not benefit the Holst property because it would not drain the Holst property. He did not define what he considered “on-site” improvements. Hamilton stated that the apportionment of 5lz7 of the cost of the water main and sanitary sewer construction to the Holst property was fair and reasonable.

Neil King testified for the defendants at trial. He opined that the improvements benefitted the Holst property. He stated that after the improvements were completed, the value of the Holst property increased by approximately $300,000. He opined that the pavement, sidewalks, curbs, gutters, streetlights, and water and sewer construction all contributed to this enhancement in the value of the Holst property, and that the owners of the Holst property would not be required to install these improvements upon the subdivision of their property.

John Zimmerman, corporation counsel for the City, also testified on behalf of defendants at trial. He stated that in the case of a new development, whenever public improvements are involved, the City council requires a subdivider’s agreement, and where recapture is involved, a recapture agreement is entered into adjunct to the subdivider’s agreement.

Don Fielding, a consulting engineer, testified that in 1979 Betty Holst’s husband, Brent, now deceased, hired him to prepare an estimate of costs for the subdivision of the Holst property. The improvements proposed for the Holst property in 1979 were similar to those required in the present case, as they were in accordance with the City’s subdivision regulations. In 1979 the total cost of those improvements was $160,116.25. Mr. Fielding also prepared a preliminary engineering plan for Shaf’s subdivision, Tara. He testified that those improvements, including on-site benefits, benefit the Holst property. However, in his deposition he stated that the on-site improvements did not benefit the Holst property.

James P. Foley, a real estate appraiser hired by plaintiffs below, was deposed by defendants. He stated that the site improvements, sewer, water, curbs, gutters, overhead lighting, and asphalt pavement, enhanced the value of the Holst property.

In its memorandum order, the trial court found that the imposition of the recapture fees pursuant to the recapture agreement was a valid exercise of City’s home rule authority. In addition, the court found Shaf’s improvement of the easement running through the Holst property was an actionable trespass and that Shaf was liable to plaintiffs in the amount of $5,445 as just compensation.

On appeal, plaintiff Beneficial contends: (1) the trial court erred in declaring the recapture agreement valid; (2) the trial court erred in refusing to reduce the recapture fees required under the agreement; (3) the trial court erred when it found defendants did not violate plaintiff’s rights under 42 U.S.C. §1983 (1992); (4) the trial court erred in awarding plaintiffs only $5,445 for the trespass to their property; (5) the trial court erred in refusing to hold the City jointly liable for the trespass; and (6) the trial court erred in refusing to grant a mistrial after it was discovered that one of defendant’s witnesses was a member of the same law firm as the City’s trial attorney.

Plaintiff argues that the City was not authorized to assess recapture fees for the improvements installed by Shaf. In particular, plaintiff argues that defendants cannot contract to obligate plaintiff, who was not a party to the recapture agreement. Plaintiff also contends the recapture agreement is invalid because it requires plaintiff to pay for a portion of the improvements that do not benefit its property. We disagree.

The recapture of costs for improvements installed by subdividers as required by municipalities is a legitimate exercise of municipal power. (See Ill. Rev. Stat. 1991, ch. 24, par. 9—5—1.) Section 9—5—1 of the Illinois Municipal Code (Municipal Code) provides that a municipality and a subdivider may contract for the reimbursement to the subdivider for a portion of the cost of the installation of water mains, sanitary sewers, drains, or other facilities for sewers or drains, the construction of any roadways, or the installation of any traffic signals or other traffic-related improvements charged to owners of property not within the subdivision. Ill. Rev. Stat. 1991, ch. 24, par. 9—5—1.

The contract is to describe the property outside the subdivision that may reasonably be expected to benefit from the facilities, roadways, or improvements required under the contract and shall specify the amount or proportion of the cost of the facilities, roadways, or improvements that is to be incurred primarily for the benefit of that property. Further, the contract is to provide that the municipality shall collect fees charged to owners of property not within the subdivision at any time before the connection to and use of the facilities, roadways, or improvements by the respective properties of each owner. Ill. Rev. Stat. 1991, ch. 24, par. 9—5—1.

Section 9 — 5—2 of the Municipal Code provides that the contract is to be filed with the recorder of each county in which all or part of the property affected is located. (Ill. Rev. Stat. 1991, ch. 24, par. 9—5—2.) However, these provisions of the Municipal Code do not apply to home rule units, and are not a prohibition to their contractional and associational powers. Ill. Rev. Stat. 1991, ch. 24, par. 9—5—3.

It is uncontested that Highland Park is a home rule municipality. (See Ill. Const. 1970, art. VII, §6.) The constitution permits a home rule municipality to exercise functions pertaining to its government and affairs. These home rule powers are to be construed liberally. (Ill. Const. 1970, art. VII, §6(m).) Our State courts have consistently recognized these broad powers. See City of Carbondale v. Yehling (1983), 96 Ill. 2d 495; County of Cook v. John Sexton Contractors Co. (1979), 75 Ill. 2d 494.

Plaintiff contends the recapture agreement is invalid because the City was not authorized by ordinance to enter into such a contract with Shaf. However, although our supreme court has not precisely defined what constitutes an “exercise” of home rule power, case law suggests it is not necessary to the exercise of home rule power that such power first be invoked by ordinance. (In re Application of Anderson (1990), 194 Ill. App. 3d 414, 424 (Reinhard, J., dissenting).)

In Sommer v. Village of Glenview (1980), 79 Ill. 2d 383, the court rejected the argument that an ordinance was required to “exercise” the village’s home rule power, stating:

“We think the plaintiffs argue for an overly technical interpretation of the term ‘exercise’ when they insist that the adoption of an ordinance is a superseding exercise of a home rule power while a vote at a trustees’ meeting is not. They are both acts taken by the governing board of a home rule unit, as an assertion of autonomy and independence from State control granted by article VII, section 6, of the 1970 Constitution. (See City of Urbana v. Houser (1977), 67 Ill. 2d 268, 273.)” (Sommer v. Village of Glenview (1980), 79 Ill. 2d at 393.)

This court has found that a home rule municipality “exercised” its home rule powers when its city council voted to authorize certain contract specifications in direct contravention with State law and to award the contract to a certain party in People ex rel. Bernardi v. City of Highland Park (1985), 135 Ill. App. 3d 580, rev’d on other grounds (1988), 121 Ill. 2d 1.

Similarly, in the present case, we find the City properly “exercised” its home rule powers when it authorized the recapture of certain fees through its contract with Shaf. On November 24, 1986, the City council approved the final plat for the Tara subdivision, provided certain conditions were met. One of those conditions was that Shaf submit a subdivider’s agreement guaranteeing the completion of all required subdivision improvements. In turn, the subdivider’s agreement, signed by the mayor on behalf of the City and by Shaf, provided that the parties would execute a recapture agreement requiring reimbursements to Shaf for construction of certain public improvements. The parties did enter into a recapture agreement which required the owners of the Holst property to pay 5/27 of the total cost of all public improvements required to be made by Shaf. The agreement was filed with the Lake County recorder of deeds.

Plaintiff contends that even if the recapture agreement is a valid exercise of the City’s home rule powers, the trial court erred in not reducing the the recapture fees. Plaintiff contends it should not be required to pay for any of the improvements covered by the recapture agreement other than 5lz7 of the off-site sanitary sewer and water main improvements. In support of this contention, plaintiff cites section 51.010 of the Highland Park code of ordinances (Code), which authorizes recapture with regard to sanitary or storm sewer or water line extension. However, that section of the Code pertains to private improvements, not public improvements required by the City for new subdivisions. In addition, as discussed above, the City does not need to pass an ordinance in order to exercise its recapture power. The recapture agreement is sufficient. The agreement provides for the recapture of costs for the construction of improvements that benefit the Holst property.

Although Robert Hamilton testified that only the off-site street, §torm and sanitary sewer and water main construction benefit the Holst property, Neil King, Don Fielding and James Foley testified that all improvements made by Shaf at the request of the City benefit the Holst property. The engineer’s estimate of construction costs for the Tara subdivision estimated costs for street construction, detention pond and basin construction, sanitary sewer construction, water main construction and storm sewer construction at $628,000. It is the trial court’s function to determine the credibility of witnesses and to resolve inconsistencies in testimony, and this court cannot substitute its opinion for the finding of the trier of fact unless its holding is against the manifest weight of the evidence. (Rybak v. Provenzale (1989), 181 Ill. App. 3d 884, 897.) We do not believe the trial court’s holding is against the manifest weight of the evidence. Because plaintiff’s property will benefit from the streets, sidewalks, streetlights, curbs, gutters, sewers, water mains, etc., and because the Holst property constitutes 5Iz7 of the total property benefitting from these improvements, we do not find the trial court’s judgment upholding the recapture agreement or the amount of fees under the agreement invalid.

Plaintiff’s next contention on appeal is that the trial court erred in failing to find a violation of plaintiff’s civil rights under section 1983 of the Civil Rights Act. (42 U.S.C. §1983 (1992).) We disagree.

Plaintiff contends the recapture agreement and the conditioning of a building permit on the payment of the fees set forth in the agreement result in a “taking” within the meaning of the fifth amendment of the United States Constitution. (U.S. Const., amend. V.) Section 1983 provides in part:

“Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C. §1983 (1992).

Plaintiff is correct that a taking may occur without an actual seizure of land. (First English Evangelical Lutheran Church v. County of Los Angeles (1987), 482 U.S. 304, 96 L. Ed. 2d 250, 107 S. Ct. 2378.) However, such a claim is premature until a final decision regarding the application of the ordinance/subdivision regulation is made. Williamson County Regional Planning Comm’n v. Hamilton Bank (1985), 473 U.S. 172, 87 L. Ed. 2d 126, 105 S. Ct. 3108.

While the present case is ripe for a declaratory judgment because it involves an actual controversy between the parties (Ill. Rev. Stat. 1991, ch. 110, par. 2—701(a)), it is premature regarding plaintiffs claim for damages under section 1983. Our supreme court has defined “actual controversy” as “a concrete dispute admitting of an immediate and definitive determination of the parties’ rights, the resolution of which will aid in the determination of the controversy or some part thereof.” (Kaske v. City of Rockford (1983), 96 Ill. 2d 298, 306.) Clearly, the validity of the recapture agreement and its application to plaintiff represents a concrete dispute in need of determination.

However, the central purpose of the declaratory judgment procedure is to allow the court to address a controversy one step sooner than normal after the dispute has arisen, but before steps are taken which could give rise to a claim for damages or other relief. (Senese v. Climatemp, Inc. (1991), 222 Ill. App. 3d 302, 314; Kaske v. City of Rockford, 96 Ill. 2d at 306.) By the very nature of this action, there has not been a final decision regarding the application of the recapture agreement to the Holst property. The parties stipulated that none of the plaintiffs in the action below applied for building permits or subdivision approval for their property. These actions trigger the recapture of fees under the agreement. As such, plaintiff’s claim for damages under section 1983 is premature.

Plaintiff also contends the trial court erred in awarding only $5,445 in damages for Shaf’s trespass and for failing to find the City jointly liable for the trespass. However, plaintiff fails to cite authority in support of this contention.

A court of review is entitled to have the issues clearly defined and to be cited pertinent authority. (Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 608.) Supreme Court Rule 341(e)(7) requires, among other things, that an appellant’s brief must contain citations to the relevant authority supporting the argument advanced on appeal. (Britt v. Federal Land Bank Association, 153 Ill. App. 3d at 608.) A contention that is supported by some argument but no authority whatsoever does not satisfy the requirements of Rule 341(e)(7). (Fuller v. Justice (1983), 117 Ill. App. 3d 933, 942-43.) The law is clear that bare contentions without argument or citation of authority do not merit consideration on appeal. (Spinelli v. Immanual Lutheran Evangelical Congregation, Inc. (1987), 118 Ill. 2d 389, 401.) Accordingly, these contentions are waived for failure to cite authority.

Plaintiff’s last contention on appeal is that the trial court erred in failing to grant a mistrial after John Zimmerman’s testimony because at the time of trial, Zimmerman was a member of the same law firm as the City’s trial attorney, Erwin Jentsch. Zimmerman, corporation counsel for the City, testified regarding the application of certain City ordinances and the City’s recapture procedures.

Rule 3.7(c) of the rules of professional conduct provides, with exceptions not at issue here, that a lawyer may act as an advocate in a trial in which another lawyer in the lawyer’s firm may be called as a witness. (134 Ill. 2d R. 3.7(c).) Moreover, even in cases where the testifying attorney is himself/herself an advocate in the case, a trial court may permit such testimony if the court finds it necessary. (Serpico v. Urso (1984), 127 Ill. App. 3d 667, 673.) The rule prohibiting a lawyer from acting as both advocate and witness in the same case reflects a number of important considerations, i.e., permitting an advocate in a matter to testify as a witness in that matter may unfairly prejudice the case of his or her client or the opposing party. (Weil, Freiburg & Thomas, P.C. v. Sara Lee Corp. (1991), 218 Ill. App. 3d 383, 395-96.) Those policy considerations are not implicated to the same extent when it is merely an attorney from the advocate’s own firm who is a witness in the case. Thus, we conclude the trial court properly denied plaintiff’s motion for mistrial.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

INGLIS, P.J., and BOWMAN, J., concur.


author: JUSTICE McLAREN

text:
      In re KENNETH LAWRENCE, Alleged to be a Person Subject, to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Kenneth Lawrence, Respondent-Appellant).
    Second District
    No. 2—91—0881
    Opinion filed January 26, 1993.
    Rehearing denied February 26, 1993.
    William E. Coffin, of Guardianship & Advocacy Commission, of Chicago, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

The circuit court of Kane County, in a bench trial, ordered the involuntary commitment of Kenneth Lawrence to the Department of Mental Health pursuant to the Mental Health and Developmental Disabilities Code. (Ill. Rev. Stat. 1991, ch. 91½, par. 1—100 et seq.) Lawrence appeals from that order on the ground that the commitment hearing was invalid for several reasons. We reverse.

On April 23, 1990, while experiencing a fit of paranoia, Lawrence attempted to end his life by repeatedly slashing his chest with a pocket knife causing approximately 30 stab wounds. Lawrence was hospitalized for these self-inflicted injuries, was placed in a psychiatric hospital, and was discharged in June 1990. Physicians at the hospital prescribed lithium for Lawrence’s condition. In August 1990, Lawrence experienced another mental lapse, barricaded himself in his bedroom, and stabbed himself with a carving knife. Lawrence again received medical and psychiatric treatment for these injuries. After leaving St. Francis Hospital, Lawrence experienced feelings of agitation and decided that he needed help from a mental health professional. Therefore, on May 6, 1991, he voluntarily admitted himself into the Elgin Mental Health Center.

On June 10, 1991, a petition and accompanying medical certificates were filed pursuant to section 3—600 (Ill. Rev. Stat. 1991, ch. 91½, par. 3—600 et seq.) in order to secure Lawrence’s involuntary admission at the Elgin Mental Health Center. The petition asserted that immediate hospitalization was necessary to protect Lawrence from harming himself and to prevent harm to others.

Lawrence argues that he should not have been subject to involuntary commitment proceedings in the absence of evidence that he made a written request to terminate his voluntary commitment pursuant to section 3—403. (Ill. Rev. Stat. 1991, ch. 91½, par. 3—403.) The State argues that involuntary commitment proceedings were properly commenced without a written notice because Lawrence failed to reaffirm his desire to continue treatment pursuant to section 3—404. (Ill. Rev. Stat. 1991, ch. 91½, par. 3—404.) We agree with Lawrence.

Section 3 — 403 sets forth guidelines whereby an individual who has obtained voluntary admission to a mental health facility may be discharged from that facility after giving a written notice of his desire to leave. Section 3 — 403 provides in relevant part:

“A voluntary patient shall be allowed to be discharged from [a] facility *** after he gives any treatment staff person written notice of his desire to be discharged unless *** a petition and 2 certificates conforming to the requirements of paragraph (b) of Section 3—601 and Section 3—602 are filed with the court. Upon receipt of the petition, the court shall order a hearing ***.” (Ill. Rev. Stat. 1991, ch. 91½, par. 3-403.)

Thus, the patient’s requested discharge may be opposed by the facility director, who can file a petition seeking to subject the patient to involuntary commitment. Ill. Rev. Stat. 1991, ch. 91½, pars. 3—403, 3—601, 3-602.

Section 3—403 serves an important public policy of encouraging people to seek treatment for their mental problems. (In re Hays (1984), 102 Ill. 2d 314.) In order to accomplish this goal, section 3—403 sets forth requirements which ensure a patient some control over his status whereby he can request his own discharge. (In re Splett (1991), 143 Ill. 2d 225.) By allowing an individual to voluntarily submit to and withdraw from psychiatric treatment, these provisions serve to (1) protect the patient’s important liberty interests and (2) shield the patient from a stigma which may accompany an involuntary commitment. In re Clement (1975), 34 Ill. App. 3d 574.

Another policy reflected by the statute is one which seeks to protect the public from individuals who pose a danger to themselves and to the public. (Hays, 102 Ill. 2d at 320.) To accomplish this policy goal, section 3—403 sets forth guidelines whereby a voluntarily admitted patient can be subject to involuntary commitment proceedings.

These polices are balanced by requiring a voluntarily admitted patient to request his release in writing before involuntary admission proceedings can be taken against him. (Splett, 143 Ill. 2d at 234.) According to Splett, “the State may alter a voluntarily admitted patient’s status only after the patient has submitted a written request for discharge.” (Emphasis added.) Splett, 143 Ill. 2d at 234; see also Hays, 102 Ill. 2d 314; In re Weimer (1991), 219 Ill. App. 3d 1005; People v. Hill (1979), 72 Ill. App. 3d 638; In re Clement (1975), 34 Ill. App. 3d 574.

Section 3—404 differs from section 3—403 in that it sets forth a format whereby a voluntarily admitted patient’s record is reviewed in order to assess the need for continuing hospitalization. This section provides in relevant part:

“[T]he facility director shall consult with the patient if continuing hospitalization is indicated and request from the patient an affirmation of his desire for continued treatment. The request and affirmation shall be noted in the patient’s record. *** A patient’s failure to reaffirm a desire to continue treatment shall constitute notice of his desire to be discharged.” Ill. Rev. Stat. 1991, ch. 91½, par. 3—404.

Construing sections 3 — 403 and 3 — 404 together, the State argues that a patient’s failure to reaffirm a desire to continue treatment shall constitute a notice of a desire to be discharged which would allow the hospital to commence involuntary commitment proceedings. The State asserts that the words “failure to affirm” which appeared on the face of the petition for involuntary admission amounted to the same type of discharge notice addressed in section 3 — 403.

We agree that a failure to reaffirm, if accurately and adequately recorded, may, in some instances, satisfy the “written notice of [a] desire to be discharged” requirement set forth in section 3—403. (Ill. Rev. Stat. 1991, ch. 91½, par. 3—403.) However, no such record was presented in the present case. The words on the face of the involuntary admission petition do not satisfy the policies or the requirements of the statutes discussed. For example, section 3—404 requires that the request and affirmation of the patient’s desire to continue treatment be noted in the patient’s record. We see no evidence of such a request or response in the record before us. Furthermore, the language on the petition for involuntary admission is not evidence of the patient’s desire to“ discontinue treatment. (In re Weimer (1991), 219 Ill. App. 3d 1005, 1009.) In Weimer, we determined that language appearing on the face of an involuntary commitment petition serves only as a showing of probable cause to initiate the involuntary commitment hearing and not as evidence of the patient’s alleged desire for discharge. Weimer, 219 Ill. App. 3d at 1009.

It is possible that language in the petition reflects an oral statement made by Lawrence to discontinue treatment. However, according to Splett, an oral request is not sufficient to activate the statutory requirements for initiating an involuntary admission proceeding. (Splett, 143 Ill. 2d at 234.) The State also argues, without citing to the record, that Lawrence’s entire defense of this case is inconsistent with any claim that he may have been willing to remain voluntarily committed. We do not agree. This argument completely ignores the loss of liberty and the attendant stigma involved in an involuntary commitment proceeding. Lawrence’s defense of this case could legitimately be grounded upon these important policies.

Because the record in the present case fails to show that Lawrence had submitted an effective request for discharge prior to the State’s initiation of involuntary admission proceedings, we conclude that the involuntary admission order must be considered invalid. Therefore, we reverse the involuntary admission order and restore Lawrence to his original status as a voluntary admittee.

Lawrence also argues the trial court lacked subject matter jurisdiction because the written notice of discharge did not meet the statutory requirements discussed above. We do not agree with this contention, and we do not make it a basis of our reversal. (See In re Devine (1991), 214 Ill. App. 3d 1.) Lawrence also sought reversal on the ground that the commitment order was not the least restrictive treatment alternative and on the ground that clear and convincing evidence was not presented regarding the threat he posed to himself and to others. We need not address these issues because we find Lawrence’s first contention dispositive as to the need for a reversal of the judgment.

For the foregoing reasons, the judgment of the circuit court of Kane County is reversed, and Lawrence’s status as a voluntary admit-tee is reinstated.

Reversed.

INGLIS, P.J., and UNYERZAGT, J., concur.