author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE HUDSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—87—3575
    Opinion filed May 11, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Ellen Fishbein and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Marie Quinlivan Czech, and Timothy F. Moran, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant, Willie Hudson, was convicted of two counts of aggravated criminal sexual assault and sentenced to concurrent terms of six years for each count. The issues presented on appeal are: (1) whether the trial court improperly admitted hearsay testimony by the police officer and doctor regarding the complaints of the eight-year old victim; (2) whether the trial court’s restriction of defense counsel’s cross-examination of two witnesses was reversible error; and (3) whether the evidence was sufficient to convict defendant of aggravated criminal sexual assault on November 21,1986.

Officer McMahon of the Chicago police department testified for the State that at around 11 on November 25, 1986, he received a call to go to an elementary school on North Sawyer Avenue in Chicago. When he arrived at the school, McMahon learned that a student had a mark on his face that the principal wanted the police to investigate. McMahon spoke with the student, who was a 10-year-old boy named Jeffrey. Over defense counsel’s hearsay objection, McMahon testified that Jeffrey told him that the person who put the mark on his face had also been abusing his younger sister. McMahon then asked Jeffrey to have his sister brought to the principal’s office. Jeffrey’s sister, the victim, arrived and spoke with McMahon. At the trial, McMahon started to testify regarding his conversation with the victim. At that point, defense counsel objected on the grounds of hearsay, but the trial court allowed the officer to testify regarding the victim’s statements. The officer stated that he asked the victim what had happened at home. She then told him that defendant had been staying at her apartment and that he had put his privates inside of her. The victim reported that he had done this on several occasions, the most recent one being on November 21, 1986. When McMahon finished talking with the victim, he took her to the hospital.

Dr. Mary Ganz testified that she examined the victim on November 26, 1986. Prior to the examination, she asked the victim if she could tell Ganz why she was being seen. The victim stated that her mother’s friend had been hurting her down there, and she pointed to her vaginal area. Ganz stated that when she examined the victim she found evidence of trauma to the hymen based on her observation that the hymenal edges were rounded and thickened. Ganz also testified that there were several interruptions in the hymenal ring, as well as scar tissue and signs of healing. Ganz stated that her physical findings were consistent with penal penetration of the vagina. Ganz also testified that when she examined the rectal area she found fissures as well as a lax rectal muscle, and that these findings were also consistent with penal penetration of the rectal area. Ganz concluded that the findings indicated that there had been more than one penetration.

On cross-examination, Ganz stated that the interruption in the hymenal opening could have been caused by other forms of penetration.

The victim, who was eight years old, testified that, at the time of the occurrence, she was living in an apartment in Chicago with her mother, defendant, and her three brothers. She stated that she was sleeping on a mattress in the dining room when defendant came over to her. He removed his clothing as well as her nightgown and underpants and kissed her mouth, breasts and genital area. Defendant then lay on top of the victim and penetrated her vagina with his penis. The victim stated that she began to cry but did not scream. She also stated that her brothers, who were sleeping in the same room, were not awakened by the incident.

On cross-examination, the victim testified that defendant had been living with her family for one month. In response to defense counsel’s question, she stated that the sexual conduct she described had occurred on November 17, 1986, which was the morning after she and her family moved to a new apartment. She also acknowledged that she did not want defendant living with them. On one occasion she swore at defendant because he slapped her younger brother’s hand when he touched an electrical outlet. The victim told defendant not to touch her brother because he was not defendant’s son. She also testified that she found defendant’s books in the house showing men and women undressed, and she spoke with him about them.

Detective David Nowak testified that at around 2 on the afternoon of November 25, 1986, he arrested defendant and transported him to the police station. At the station, defendant was advised of his Miranda rights. Defendant stated that he understood his rights and agreed to talk to the detectives. Nowak and his partner then spoke with defendant for about 15 minutes before contacting the felony review unit. Assistant State’s Attorney Erin Jennings arrived, and Nowak was present when she questioned defendant regarding the incident. Nowak testified that the statements defendant made to Jennings were substantially the same as those statements that he made to Nowak earlier that day. Nowak further testified that Jennings then reduced defendant’s statement to writing and read it to him. Defendant read the statement himself, made one correction and signed it.

On cross-examination, defense counsel asked Nowak if defendant denied the allegations against him, but the State objected, and the objection was sustained. At the conclusion of his testimony, Nowak read into the record the statement prepared by Jennings. According to the statement, defendant claimed that the victim was coming on to him sexually. There were also occasions when he was sleeping naked, and the victim would remove the covers and grab his penis. He described other occasions when he was lying down and the victim would climb on top of him. She would then roll and grind her genitals against his genitals. At these times defendant may or may not have had shorts on, and the victim was either naked or wore loose panties. Defendant stated that on one of these occasions his penis possibly slipped into the victim. Defendant further claimed that the victim would follow him into the bathroom when he was bathing or using the toilet. He did not report these incidents to the victim’s mother because he did not want to get her in trouble.

Defendant testified in his own behalf that he was 33 years of age and worked as an automobile mechanic until the time of his arrest. He stated that he had been living with the victim’s family for about four weeks and that the victim did not like him. He then described an occasion when the victim was found looking at a book which contained a picture of a woman performing oral sex on a man. Defendant stated that the victim’s family had been staying at his apartment, but they moved to another apartment on November 16, 1986. That evening defendant stayed with the victim and her family and fell asleep while watching television. At that time, the victim and her brothers were awake and in the bed next to him. Defendant stated that he slept until morning, and he denied having sexual intercourse with the victim. Defendant further testified that on the morning of November 21, 1986, the victim bit and scratched him when he told her to stop hitting her younger brother. He denied having sexual contact with her on that day.

According to defendant’s testimony, the woman who prepared his written statement at the police station introduced herself as representative of the Department of Children and Family Services. Defendant spoke to her because she claimed that she needed a statement from him to keep the police from putting the victim and her siblings in a foster home. Defendant also denied making some of the comments contained in the written statement, particularly the comment that his penis possibly slipped into the victim. Defendant further stated that he never saw the written statement being prepared, but he initialed the correction and signed it without knowing the contents.

In rebuttal, Assistant State’s Attorney Jennings testified that she identified herself as an assistant State’s Attorney and that she was working for the police. She also stated that she sat next to defendant when she read each line of the statement to him. One correction was made, and it was initialed by everyone who was present. After reading the entire statement to defendant, Jennings gave the statement to defendant to read. After reviewing the statement, defendant signed each page.

On cross-examination, defense counsel asked Jennings if defendant had denied having sexual intercourse with the victim. The State then objected, and the trial court sustained the objection. At a later point in the cross-examination, defense counsel asked Jennings whether she had seen the transcript of Nowak’s testimony prior to presenting her own testimony. She responded that she had looked at it briefly, but when defense counsel tried to question her further, an objection raised by the State was sustained.

At the conclusion of closing arguments, the trial court found the victim’s testimony clear and convincing and corroborated, and defendant’s testimony “perjurious.”

I

Defendant contends that the trial court’s admission of the hearsay testimony of the police officer and physician regarding the complaints of the eight-year-old victim was reversible error. The statute governing the admissibility of the testimony at issue is section 115—10(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115—10(2)), which provides:

“In a prosecution for a sexual act perpetrated upon a child under the age of 13 *** the following evidence shall be admitted as an exception to the hearsay rule:
* * *
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child’s testimony.”

Under the statute, only testimony that the complaint was made is permissible. It does not permit testimony which contains a detailed account of the complaint or the identity of the alleged assailant. People v. Branch (1987), 158 Ill. App. 3d 338, 341, 511 N.E.2d 872; People v. Server (1986), 148 Ill. App. 3d 888, 900, 499 N.E.2d 1019.

Defendant first argues that the testimony of Officer McMahon regarding the victim’s statements was outside the scope of the statute because it included details of the occurrence as well as the identity of defendant. Although a specific recitation of the complaint is not admissible, some detail is necessary to corroborate the fact that the complaint was made and identify the incident as the one before the court. (Branch, 158 Ill. App. 3d at 341; Server, 148 Ill. App. 3d at 900.) In addition, “the admission of unnecessary or impermissible detail, such as the identification of the defendant, will be deemed to be harmless when substantially corroborated by the testimony of the child victim or any other pertinent evidence and the child victim is present in court and available for cross-examination.” Server, 148 Ill. App. 3d at 900; People v. Powell (1985), 138 Ill. App. 3d 150, 159, 485 N.E.2d 560.

In this case, defendant was convicted of two counts of aggravated criminal sexual assault, one occurrence being on November 17, 1986, and one occurrence on November 21, 1986. Officer McMahon testified that when he spoke to the victim she reported that a man staying at her apartment had put his privates inside of her, and that his name was Willie Hudson. McMahon also stated that the victim told him that the sexual contact had occurred on several occasions, and that the most recent occurrence had been on November 21, 1986. However, at the trial, the victim only testified to the occurrence of a sexual incident on November 17, 1986. The only other relevant evidence of the November 21, 1986, incident was Dr. Ganz’ testimony, that, based on her findings, the victim had been sexually assaulted on more than one occasion. Evidence of more than one sexual incident was insufficient to show that the sexual offense occurred on November 21, 1986. Therefore, the officer’s testimony that the victim reported being sexually assaulted on this date was not corroborated by evidence presented at trial, and the trial court’s admission of the officer’s testimony regarding the occurrence of the offense on November 21,1986, was plain error.

However, contrary to defendant’s argument, we conclude that the admission of McMahon’s testimony regarding the victim’s statement as to how she was sexually assaulted was proper where the statement was necessary as evidence that a complaint was made and to identify the incident as the one before the court. Furthermore, the victim’s trial testimony as well as the medical evidence corroborated the victim’s out-of-court statement to the officer as to how she was sexually assaulted. We also conclude that the officer’s testimony regarding the victim’s identification of defendant was harmless error where her statement to the officer, naming defendant as the man who sexually assaulted her, was corroborated by her identification of him at the trial.

Defendant also argues that the admission of Dr. Ganz’ hearsay testimony was prejudicial. Generally, statements concerning a cause of injury made to a treating physician are admissible under the physician-patient exception to the hearsay rule. (People v. Taylor (1987), 153 Ill. App. 3d 710, 720-21, 506 N.E.2d 321.) However, identification of the offender is outside the scope of this hearsay exception. (People v. Sexton (1987), 162 Ill. App. 3d 607, 617, 515 N.E.2d 1359.) Defendant claims that, pursuant to Sexton, the trial court’s admission of Dr. Ganz’ identification testimony was reversible error.

During direct examination, Dr. Ganz testified that she had asked the victim if she knew why she was being examined. In response to the prosecutor’s question, Ganz then stated that the victim replied that her mother’s friend had been hurting her down there, and she pointed to her vaginal area. When Dr. Ganz presented this testimony, defense counsel failed to object and also failed to raise this issue in his post-trial motion. Failure to raise an issue before the trial court or in a post-trial motion normally waives review of the issue on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124; People v. Friesland (1985), 109 Ill. 2d 369, 374, 488 N.E.2d 261.) “The reviewing court may review the error, however, where the evidence is close or the error affects the accused’s substantial rights.” Sexton, 162 Ill. App. 3d at 615.

In the instant case, the hearsay statement at issue was the victim’s statement that her mother’s friend hurt her. Any evidence that was admitted through Ganz’ testimony regarding the victim’s statement was corroborated by the victim’s in-court testimony and identification of defendant. Thus, we conclude that any error resulting from the admission of Dr. Ganz’ testimony regarding the victim’s statements was harmless. We also find that defendant’s failure to object to the admission of the testimony waived review of the issue on appeal.

Defendant also claims that the introduction of the statements the victim made to Officer McMahon and Dr. Ganz was improper because they were made in response to questioning and were not voluntary or spontaneous. In support of his argument, defendant cites People v. Taylor (1971), 48 Ill. 2d 91, 97, 268 N.E.2d 865, and People v. Harris (1985), 134 Ill. App. 3d 705, 714, 480 N.E.2d 1189. However, both cases are factually distinguishable where the victim in both instances was 16 years of age so that section 115—10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115—10) was not applicable. The victims in Taylor and Harris were also asked a series of specific questions regarding the sexual assaults. In the instant case, Officer McMahon only asked the complainant what had happened at home, and Dr. Ganz asked her if she knew why she was being seen. In both instances, the complainant was not asked a series of questions, and the questions she was asked were indirect. Furthermore, in cases involving a minor who is younger than 13 years of age, the fact that a complaint is made in response to questioning does not destroy its admissibility. (Branch, 158 Ill. App. 3d at 342; Server, 148 Ill. App. 3d at 900.) Therefore, the fact that the victim’s statements were made in response to a question did not affect their admissibility.

Defendant further argues that Officer McMahon’s testimony regarding his conversation with the victim’s brother was improperly admitted under the hearsay rule. When McMahon was asked about his conversation with the victim’s brother during direct examination, defense counsel objected, but the trial court overruled the objection and allowed admission of the conversation. Although defense counsel objected at the trial, he did not address this issue in his post-trial motion. “Both a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial.” (Emphasis in original.) Enoch, 122 Ill. 2d at 186.

In addition to his contention that the corroborating evidence was improperly admitted hearsay which was prejudicial, defendant also claims that the victim’s testimony was biased and, therefore, not clear and convincing. The basis for his argument was the victim’s testimony on cross-examination that she preferred to have her father living with her and her family and her acknowledgement of instances when she had been angry with defendant. However, the existence of a motive to lie does not render testimony unconvincing. (Sexton, 162 Ill. App. 3d at 614.) In addition, the credibility of the witnesses and the weight to be given their testimony is exclusively within the province of the trier of fact. People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267.

In spite of any motive that the victim may have had to lie, she was able to give a detailed account of how she was sexually assaulted, and she was able to demonstrate the conduct on the anatomical dolls which were provided. Thus, we conclude that the trial court’s finding that the victim’s testimony was clear and convincing was supported by the evidence.

II

Defendant next contends that the trial court’s undue restriction of his cross-examination of Detective Nowak and Assistant State’s Attorney Jennings precluded him from introducing exculpatory portions of his conversations with them. The conversations to which defendant refers occurred at the police station following his arrest. Nowak testified that he spoke with defendant for approximately 15 minutes and made notes of the conversation in his general progress report. He also stated that he was present during defendant’s meeting with Jennings, and that the substance of the statement to Jennings was essentially the same as defendant’s conversation with him. Defendant claims that during his conversation with Nowak, he denied having sex with the victim. After his conversation with Nowak, defendant gave a statement to Jennings which she reduced to writing. However, defendant’s written statement which Nowak read into the record contained no information that defendant denied the charges against him. During cross-examination, defense counsel tried to question Nowak regarding his oral conversation with defendant, but the State objected, and the objection was sustained. Defense counsel also tried to question Jennings on cross-examination in an attempt to elicit testimony that defendant had denied assaulting the victim, but the State’s objection was again sustained.

“The scope of cross-examination is a determination which rests largely in the discretion of the trial court.” (People v. Visnack (1985), 135 Ill. App. 3d 113, 121, 481 N.E.2d 744, citing People v. Kline (1982), 92 Ill. 2d 490, 442 N.E.2d 154.) Furthermore, a statement made by a defendant when he was in custody, which is now offered in his favor, is not an admission, and it is subject to objection on hearsay grounds. (People v. Visnack, 135 Ill. App. 3d at 127.) Therefore, statements defendant allegedly made to Nowak denying that he had sex with the victim would be inadmissible hearsay.

In addition, defendant argues that it was error to restrict his cross-examination of both witnesses because their testimony was admissible under the completeness doctrine, and the excluded testimony would have corroborated his own testimony denying the offense and bolstered his credibility. Defendant’s argument regarding the completeness doctrine is based on the fact that his alleged written statement, which was admitted, contained an inculpatory statement attributed to him. He claims that Nowak’s testimony of defendant’s statements should have been admitted as further evidence that he denied assaulting the victim. Defendant also claims that his cross-examination of Jennings was permissible under the completeness doctrine because the written statement that was read was not his statement, and he had not told Jennings that his penis possibly slipped into the victim.

The completeness doctrine permits a party to introduce the remainder of a conversation or a writing in order to correctly convey its true meaning to the trier of fact. (People v. Hosty (1986), 146 Ill. App. 3d 876, 884, 497 N.E.2d 334.) Under this doctrine, “the admissibility of that remainder must be limited to what was said on the same subject at the same time.” Hosty, 146 Ill. App. 3d at 884.

In this case, none of defendant’s oral conversation with Nowak was admitted, so that his alleged oral statements of denial were not admissible to complete this conversation. Defendant’s argument that his cross-examination of Jennings should have been permitted under the completeness doctrine to correct the alleged errors in the written statement is also without merit. Although defendant denied that the statement was an accurate writing of his conversation with Jennings, it contained his signature, as well as his initials on the one correction that was made. Furthermore, Jennings testified that after she reduced the statement to writing, she first read it to defendant and then gave the statement to him to review. Defendant presented no evidence other than his own allegation that the written statement was inaccurate or incomplete.

We also conclude that the trial court’s limitation of defense counsel’s cross-examination was not error where defendant was able to deny the charges in his own testimony and present the same evidence to the trier of fact that he claims he was precluded from presenting during his cross-examination of the State’s witnesses. (People v. Houston (1986), 151 Ill. App. 3d 102, 113, 502 N.E.2d 1111.) Even if the trial court’s rulings were error, there is other properly admitted evidence which supports defendant’s conviction. People v. Wilkerson (1981), 87 Ill. 2d 151, 157, 429 N.E.2d 526.

For these same reasons, we also conclude that the trial court’s restriction of defendant’s cross-examination of Jennings pertaining to her review of Nowak’s testimony was not reversible error.

Ill

Defendant’s final contention is that the State failed to prove beyond a reasonable doubt that he committed aggravated criminal sexual assault on November 21, 1986. Defendant argues that the victim did not testify to the incidence of sexual contact on that date and the remaining evidence was insufficient to support the conviction beyond a reasonable doubt. “When presented with a challenge to the sufficiency of the evidence, *** [citation] ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Dr. Ganz testified that the medical evidence from her examination of the victim supported the conclusion that the victim had been sexually assaulted on more than one occasion. However, Officer McMahon’s hearsay testimony was the only evidence that a sexual incident had occurred on November 21, 1986. Because the officer’s testimony regarding the victim’s statement pertaining to this date was not corroborated by any other trial evidence, the hearsay statement was improperly admitted. Exclusive of this evidence, there was no other evidence to support defendant’s conviction for aggravated criminal sexual assault on November 21, 1986.

Accordingly, defendant’s conviction for aggravated criminal sexual assault on November 21, 1986, is reversed, and his conviction for aggravated criminal sexual assault on November 17, 1986, is affirmed. Because the six-year sentence which the trial court imposed for aggravated criminal sexual assault on November 17, 1986, is the minimum sentence defendant could receive, no prejudice will result from our affirmance of this sentence. People v. Shimkus (1985), 135 Ill. App. 3d 981, 990, 482 N.E.2d 194.

Judgment reversed in part and affirmed in part.

LaPORTA, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
    C-B REALTY AND TRADING CORPORATION et al., Plaintiffs-Appellees, v. CHICAGO AND NORTH WESTERN RAILWAY COMPANY et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—88—2423
    Opinion filed May 11, 1990.

      James P. Daley, George H. Brant, and Myles L. Tobin, all of Chicago, for appellants.
    French, Rogers, Kezelis & Kominiarek, P.C., of Chicago (Algimantas Kezelis and Russell P. Veldenz, of counsel), for appellees.
   JUSTICE McNAMARA

delivered the opinion of the court:

In 1974, plaintiffs C-B Realty & Trading Corporation, Harris Trust & Savings Bank, as trustee under trust agreement dated July 25, 1975, Julius Braun, Morris Braun, Eve Braun Erenberg, and the estate of Marie Braun, joint venturers under the title of C-B Realty Joint Venture, sued defendants Chicago and North Western Railway Company and Chicago and North Western Transportation Company, for breach of two covenants in a 1908 contract pertaining to the payment of certain taxes and the maintenance of a railroad bridge.

In 1980, the trial court entered partial summary judgment in favor of plaintiffs by ruling that the two covenants ran with the land and that plaintiffs were entitled to enjoy the benefits conferred by the covenants.

In 1988, following a trial without a jury, concerning only damages and not liability, the court awarded plaintiffs $541,422.92, the full amount sought.

Defendant Chicago and North Western Transportation Company, as successor in interest to the Chicago and North Western Railway Company, appeals. It contends that the trial court erred in entering partial summary judgment in favor of plaintiffs, and asks that we reverse that order and enter judgment in its favor, or reverse and remand for a new trial. It also contends that at trial, the court erred in limiting the evidence to issues of damages and prohibiting defendant from addressing the question of liability and introducing evidence on the affirmative defenses of waiver, laches and the statute of limitations. Defendant also contends that the court’s award of damages for taxes, lost profits and costs of repairs and restoration of property was contrary to law and against the manifest weight of the evidence and that the court erred in awarding prejudgment interest on the tax award.

The somewhat complex chronology and factual setting is as follows. Defendant operates an elevated commuter service to a passenger depot in Chicago. Just north of the passenger station is a railroad bridge which passes over a portion of a former railroad freight warehouse. The warehouse extends in a semicircular manner eastward under the bridge, and then curves southward.

In 1908, defendant’s predecessor in interest entered into a contract with the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company, relating to the construction of that railroad bridge and the transfer of rights in certain property in Chicago.

In 1959, plaintiffs acquired title to the land upon which the freight warehouse rests, along with some adjoining property, as the successor to the interests of the Pittsburgh Company.

On September 20, 1974, plaintiffs filed this suit. Count I was withdrawn. Count II sought a judgment declaring that defendant was obligated to pay three-fourths of plaintiffs’ taxes. The 1908 contract stated in paragraph 9 that defendant would pay three-fourths of taxes levied on the land now owned by plaintiffs:

“9. The North-Western Company [now defendant] will pay all taxes and assessments which may be levied against said overhead bridge or structure, and will also pay three-fourths of all taxes and assessments which may be levied against the tract of land owned by the Pittsburgh Company [now plaintiff], across which the said overhead structure is located.”

Count III of the complaint alleged that defendant had failed to maintain a watertight floor on its bridge and sought compensation for damage to the freight warehouse. The 1908 contract stated in paragraph 3 that defendant would maintain the bridge with a watertight floor over the freight house:

“3. The North-Western Company [now defendant] will construct, maintain and renew at all times the said bridge or structure so that the same shall have a water-tight floor construction over the entire area of the tracks and property of the Pittsburgh Company, and the North-Western Company at its own sole cost and expense, will reconstruct and rearrange the freight house of the Pittsburgh Company [now plaintiff] in accordance with said Exhibit A and under the direction of Chief Engineer of the Pittsburgh Company.”

Cross-motions for summary judgment were filed on the issue of whether paragraphs 3 and 9 were covenants running with the land. On December 19, 1980, Judge Murray entered an order in favor of plaintiffs, finding paragraphs 3 and 9 created covenants running with the land. The judge explained that the two paragraphs involved the enjoyment of the land, and such benefits and obligations passed with the ownership. On January 14, 1981, the judge modified the December 19 order by finding it was not final and appealable because other issues had yet to be decided.

On October 28, 1985, trial commenced before Judge Mackoff. The court limited the issues to plaintiffs’ damages after finding that the December 19, 1980, entry of partial summary judgment determined all issues of liability. Following trial, by orders dated April 15 and July 6, 1988, Judge Mackoff entered judgment awarding plaintiffs the sum of $541,422.92.

We first address the issue of whether the covenants regarding defendant’s duty to pay taxes and maintain a watertight bridge ran with the land. Defendant contends that the trial court erred in granting partial summary judgment in favor of plaintiffs because genuine issues of material fact existed, and because the contract did not establish as a matter of law that the 1908 covenants ran with the land.

A covenant runs with the land when the covenant concerns the thing granted and the occupation or enjoyment of it. (Atwood v. Chicago, Milwaukee & St. Paul Ry. Co. (1924), 313 Ill. 59, 64, 144 N.E.2d 351; Parrish v. City of Carbondale (1978), 61 Ill. App. 3d 500, 505, 378 N.E.2d 243.) A covenant is personal, and therefore does not run with the land, where it is collateral and personal and not immediately concerning the thing granted. (Atwood v. Chicago, Milwaukee & St. Paul Ry. Co., 313 Ill. 59, 144 N.E.2d 351; Parrish v. City of Carbondale, 61 Ill. App. 3d 500, 378 N.E.2d 243.) Thus, every successive assignee of the land is entitled to enforce the covenant, and entitled to the benefits or obligations passing with the covenant, if the act to be done or permitted concerns the land or the estate conveyed. Atwood v. Chicago, Milwaukee & St. Paul Ry. Co., 313 Ill. 59, 144 N.E.2d 351; Parrish v. City of Carbondale, 61 Ill. App. 3d 500, 378 N.E.2d 243.

The facts show that defendant owns an easement across plaintiffs’ property. Defendant’s predecessor was permitted to construct a bridge over the property. The contract states that defendant’s predecessor may “construct, maintain and renew perpetually an overhead bridge or structure” above the property owned by plaintiffs’ predecessor, and may “operate its railroad upon said bridge.” Defendant’s predecessor promised to “construct, maintain and renew at all times the said bridge or structure so- that the same shall have a water-tight floor construction over the entire area of the tracks and property [of plaintiffs’ predecessor] at its own sole cost and expense.” The right to that easement passed to defendant. The burden of that easement passed to plaintiffs. See Flower v. Valentine (1985), 135 Ill. App. 3d 1034, 1039, 482 N.E.2d 682.

We hold that Judge Murray properly found, as a matter of law, that the covenant to maintain a watertight bridge was a covenant running with the land. (See Sanitary District of Chicago v. Martin (1906), 129 Ill. App. 308, 314, aff'd (1907), 227 Ill. 260, 81 N.E. 417 (covenant to erect and maintain levee and ditches runs with the land); Dorsey v. St. Louis, Alton & Terre Haute R.R. Co. (1871), 58 Ill. 65 (covenant to maintain fence in good repair runs with the land); Batavia Manufacturing Co. v. Newton Wagon Co. (1878), 91 Ill. 230 (covenant to keep dam in repair runs with the land); Fitch v. Johnson (1882), 104 Ill. 111 (covenant to keep and maintain dam runs with the land); Pittsburgh, Fort Wayne & Chicago R.R. Co. (1886), 22 Ill. App. 470, aff'd (1887), 123 Ill. 273, 14 N.E. 195 (railroad’s covenant to restore switch connection runs with the land).) Maintaining a watertight bridge undoubtedly affects the enjoyment of the land, and it directly concerns the land and the easement conveyed. It is not merely a personal covenant concerning something collateral to the land. See Parrish v. City of Carbondale, 61 Ill. App. 3d 500, 378 N.E.2d 243.

Similarly, in regard to the taxes, such a promise relates directly to the land itself and the use thereof. Payments made in connection with the use or ownership of land have been found to be covenants running with the land. See, e.g., Streams Sports Club, Ltd. v. Richmond (1983), 99 Ill. 2d 182, 457 N.E.2d 1226 (covenant to pay for recreational facilities at condominium is covenant running with the land); Mathis v. Mathis (1948), 402 Ill. 60, 83 N.E.2d 270 (covenant runs with land and is enforceable by heirs where conveyance of land made in consideration of covenant to support grantor or other persons).

Moreover, the 1908 contract states that the parties agreed it would be binding upon and inure to the benefits of the parties to the agreement and their respective successors and assigns.

Summary judgment is proper when the pleadings, depositions and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) Where the material facts are undisputed and can lead but to one reasonable inference, the court may enter a summary judgment. (Amsted Industries, Inc. v. Pollak Industries, Inc. (1978), 65 Ill. App. 3d 545, 382 N.E.2d 393.) Summary judgment is appropriate where the questions involved concern the construction of contract language. Clifford-Jacobs Forging Co. v. Capital Engineering & Manufacturing Co. (1982), 107 Ill. App. 3d 29, 33, 437 N.E.2d 22.

Judge Murray properly entered partial summary judgment in favor of plaintiffs on the issue of whether the covenants regarding defendant’s duties to maintain a watertight bridge and to pay taxes ran with the land.

Defendant makes various arguments regarding those covenants. For example, defendant argues the watertight bridge covenant is satisfied by the parties’ course of conduct in using a catch-pan system over the years. In addition, defendant maintains that the tax covenant could not include payment of locally assessed property taxes because it was a contract by railroads and for railroads, and under the circumstances, the original parties never contemplated use of the property for nonrailroad purposes.

These arguments, however, go beyond the issues covered by the partial summary judgment order. The order was limited to the legal question of whether the covenants run with the land. Defendant’s arguments focus on how the covenants should be interpreted, and these are questions of manifest weight. Because we reverse and remand for a new trial on the issues of liability and damages, we do not address contentions regarding the manifest weight of the evidence.

Defendant next contends that Judge Mackoff erred in construing the original partial summary judgment order as having determined all issues of liability. Defendant maintains that limiting the trial to the issues of damages resulted in stripping defendant of its affirmative defenses of waiver, laches and expiration of the statute of limitations. We agree.

We have thoroughly examined the lengthy record and have found numerous examples indicating that the 1980 order was narrowly limited to the question of law concerning whether the 1908 covenants run with the land.

In 1980, Judge Murray ruled on the cross-motions for summary judgment as to whether the tax and watertight bridge covenants run with the land. During argument, defense counsel stated that “[W]e also have not forgone any of the other defenses that we would have if, in fact, the court does find that these are covenants assigned to the land or assignment or whatever.” The judge responded, “I understand. *** And I’m not ruling on it. I’m only limiting my ruling to the issue as to whether *** or not the agreement of 1908 *** created covenants running with the land.” Judge Murray described the cross-motions for judgment as creating “narrow issues.”

The court then entered an order in favor of plaintiffs, finding that the covenants run with the land and thus that the benefits and obligations of those provisions pass with the ownership of the property. On January 14, 1981, Judge Murray amended the order by deleting the “final and appealable” language and adding: “This language is deleted because it is the court’s opinion that said order dated December 19, 1980 is not final and appealable and that other issues have yet to be decided.”

The record reveals several examples of Judge Mackoff’s later interpretation of Judge Murray’s order to mean that all questions of liability had been decided, and only questions of damages remained. Plaintiffs’ counsel supported this interpretation.

At trial in 1985, defendant attempted to attack jurisdiction by arguing about a ruling of the Illinois Commerce Commission regarding the relationship of the parties as a result of the abandonment and sale of a railroad use. Plaintiffs’ counsel stated: “As a matter of fact, I’m here to merely prove up damages. As far as I’m concerned the issues, responsibility of the railroad have been determined.” The court agreed: “This comes somewhat late; particularly since the motion for summary judgment has resolved the issue of liability.” It then denied defendant’s request to raise the issue.

On March 11, 1987, Judge Mackoff addressed plaintiffs’ motion to amend the complaint and add a count asserting punitive damages. Plaintiffs’ counsel argued: “What defense, if any, can the defendant interpose on the issue of damages only, because the liability has already been established by summary judgment many years ago.” The court denied the request to amend the complaint. Plaintiffs then rested their case, and defendant presented a motion for a directed judgment. Defense counsel argued that plaintiffs had waived their contractual rights, when plaintiffs’ counsel interjected:

“PLAINTIFFS’ COUNSEL: I regret to interrupt, but that issue is not before this court. There is a summary judgment on the issue of liability.
THE COURT: Of liability.
PLAINTIFFS’ COUNSEL: The only issue before this court is damages.
THE COURT: That was by Judge Murray.
DEFENSE COUNSEL: Your Honor, those defenses were raised as to the damages in question and I think also as to liability. And the determination that certain covenants run with the land did not necessarily mean that they are enforceable between the respective parties at a given particular time.
THE COURT: I will consider that Judge Murray, in ruling that liability was found for the plaintiff and against the defendant, included that aspect of abrogation of the contract, aspect which you are directing your argument to at this time.
My understanding is that liability has been found for the plaintiff and against the defendant, and the issue of damages which are direct and proximate from the breach are the issue^] before the court.
PLAINTIFFS’ COUNSEL: That was my understanding.”

Defense counsel proceeded to argue that the 10-year statute of limitations had run. The court interrupted, stating that “[sjince that isn’t jurisdictional, *** those are matters which I will have to believe were determined by Judge Murray in his finding of liability.”

On April 8, 1987, defendant filed a motion for clarification of Judge Murray’s 1980 summary judgment ruling. The motion quoted the 1980 exchange between the court and counsel. Defendant argued to Judge Mackoff: “I think pretty clearly the court indicated that it was, by its ruling, not barring any defenses on behalf of the Chicago Northwestern and, your Honor, given some discussions on the record much more recently than that, I am concerned that we may not be able to present certain defenses.”

Plaintiffs’ counsel responded that the motion was not timely, and that if defendant “feels that there are errors made in Judge Murray’s order, he will have a remedy, I believe, because the order was not made final and appealable, if and when [the] matter is concluded before your Honor to do whatever the law permits him to do.” The judge stated that “it appears to me that the order of Judge James C. Murray of December 19th, 1980 is clear on its face, and the motion for clarification is denied.”

The record reveals that the court’s error in limiting defendant’s evidence to damages issues permeated the entire trial. It was serious error to construe the narrow parameters of Judge Murray’s order so as to preclude defendant from offering evidence on its affirmative defenses as to liability.

For example, it is not enough to permit defendant to argue at trial, and before this court, that plaintiffs waived their claims for taxes and water damages because, by their conduct from 1959 until 1974, they failed to enforce their alleged right to the taxes and because they asked for and permitted defendant to fix the catch-pans as late as 1987. Defendant must be permitted to produce evidence that plaintiffs waived not just some portion of the damages, but any claim to liability on defendant’s part.

Judge Murray only found, simply by construing the 1908 contract language, that a successor in interest to the Chicago & North Western Railway Company’s obligations to maintain a watertight bridge and pay taxes would bear the same burdens as the predecessor in interest. But the precise burdens have not been determined. The gap between Judge Murray’s partial summary judgment order, and Judge Mackoff’s judgment for damages, reveals no evidence or finding as to the nature of those burdens. Defendant does not just bear the burdens of its predecessor’s obligations under the two covenants. It also has the right to challenge any liability under those covenants in the face of the potentially successful assertion of any affirmative defenses, such as waiver (see Lempera v. Karner (1980), 79 Ill. App. 3d 221, 223, 398 N.E.2d 224), laches (see Pyle v. Ferrell (1958), 12 Ill. 2d 547, 553, 147 N.E.2d 341), and the running of the 10-year statute of limitations (see Ill. Rev. Stat. 1987, ch. 110, par. 13-206).

Consequently, we reverse Judge Mackoff’s judgment order awarding damages and remand for a new trial on the issues of liability and damages, thus permitting defendant to present its case with the inclusion of all applicable affirmative defenses. The new trial, of course, must proceed with the limitation that this court has affirmed Judge Murray’s entry of partial summary judgment in favor of plaintiffs finding that the two covenants at issue run with the land.

In view of the fact that we are remanding for a new trial on liability and damages, we need not address defendant’s remaining contentions that the trial court’s award of damages was contrary to law and against the manifest weight of the evidence.

We hold that the judgment of Judge Murray dated December 19, 1980, as modified by order dated January 14, 1981, entering partial summary judgment in favor of plaintiffs and against defendant, is affirmed. The judgment of Judge Mackoff dated July 6, 1988, finding in favor of plaintiffs and against defendant in the amount of $541,422.92, is reversed and remanded.

Accordingly, the judgments of the circuit court of Cook County are affirmed in part and reversed in part, and the cause is remanded for a new trial.

Affirmed in part; reversed in part and remanded with directions.

EGAN and RAKOWSKI, JJ., concur.

       Justice William Quinlan participated in the above-entitled cause prior to his resignation. Justice Thomas Rakowski was designated the third member of the panel and has read the briefs and listened to the tapes of oral argument.


author: JUSTICE EGAN

text:
    CBS, INC., Plaintiff-Appellant, v. CECIL A. PARTEE, State’s Attorney of Cook County, Illinois, Defendant-Appellee.
    First District (6th Division)
    No. 1—89—0801
    Opinion filed May 11, 1990.

      Richard J. O’Brien and Lisa A. Hausten, both of Sidley & Austin, of Chicago (R. Bryan Hatchett, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Joan S. Cherry and Susan Condon, Assistant State’s Attorneys, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

This appeal requires us to decide whether the race of a public employee, as recorded in a personnel file, is subject to disclosure under the Illinois Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, par. 201 et seq.). In dismissing the complaint of CBS, Inc., against the State’s Attorney of Cook County, the trial judge held that it was not.

In January 1989 the plaintiff requested the following information from the State’s Attorney: (1) the names of all assistant State’s Attorneys; (2) the race of each assistant State’s Attorney; (3) the names of the “First Chair” assistant State’s Attorneys; (4) the names of the assistant State’s Attorneys in supervisory positions to be identified by title and department; and (5) the most recent salaries of each assistant State’s Attorney and the dates of hire.

The defendant gave the plaintiff the names, titles, most recent salaries and the dates of hire of all assistant State’s Attorneys but refused to identify any assistant State’s Attorneys by race. The material given by the defendant to the plaintiff did not identify the names of the “First Chairs” requested. It is the general practice of the State’s Attorney of Cook County to assign two or more assistant State’s Attorneys to one criminal court judge for an indefinite period. Frequently, one assistant State’s Attorney will be superior in authority to the other assistant State’s Attorneys assigned to the same judge. We have been informed in oral argument that the plaintiff’s description of “First Chair” refers to the superior assistant State’s Attorney. The plaintiff makes no issue here of the failure to provide the names of the “First Chair” assistant State’s Attorneys.

On March 7, 1989, the plaintiff filed a complaint seeking injunctive relief mandating the disclosure by the defendant of “the number of minority assistant State’s Attorneys; the positions and titles of the minority assistant State’s Attorneys; and the names of the minority assistant State’s Attorneys.” The judge allowed the defendant’s motion to dismiss on the ground that the complaint failed to state a cause of action.

Section 1 of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 201) enunciates the public policy of this State to be that all persons are entitled to full and complete information regarding the affairs of government and the acts and policies of public officials and public employees. The Act itself cautions, however, that it is not intended to be used to violate individual privacy. In brief, the defendant’s position is that providing the plaintiff with the information sought would be a violation of the individual privacy of the assistant State’s Attorneys.

This case hinges on the interpretation of section 7 of the FOIA (Ill. Rev. Stat. 1987, ch. 116, par. 207), which provides, in part, as follows:

“The following shall be exempt from inspection and copying:
* * *
(b) Information which, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless such disclosure is consented to in writing by the individual subjects of such information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:
* * *
(ii) personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for such positions[.]”

The defendant argues that the information sought is contained in personnel files and that any information contained in a personnel file is per se exempted from disclosure under section 7(b)(ii). We are aware that some appellate districts disagree on whether any exemption under section 7(b) may be considered a per se exemption. (Compare Copley Press, Inc. v. City of Springfield (4th Dist. 1986), 143 Ill. App. 3d 370, 493 N.E.2d 127, and Staske v. City of Champaign (4th Dist. 1989), 183 Ill. App. 3d 1, 539 N.E.2d 747, with City of Monmouth v. Galesburg Printing & Publishing Co. (3d Dist. 1986), 144 Ill. App. 3d 224, 494 N.E.2d 896, and Margolis v. Director of Department of Revenue (1st Dist. 1989), 180 Ill. App. 3d 1084, 536 N.E.2d 827.) In Margolis the First Appellate District expressly rejected the per se exemption rule of Copley Press and held that the courts were to apply a balancing test in construing section 7(b).

None of the Illinois cases which have decided the question of per se exemptions involved personnel files. One Federal case did involve personnel files; and although we are not bound by the holding of the Federal court, we may look to that decision, since the Illinois statute closely parallels the Federal FOIA. (Griffith Laboratories U.S.A. v. Metropolitan Sanitary District (1988), 168 Ill. App. 3d 341, 522 N.E.2d 744.) In Department of Air Force v. Rose (1976), 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592, information was sought from the United States Air Force concerning disciplinary systems and procedures. The Air Force refused to give certain information on the ground that the information was contained in personnel files, which under the Federal statute, like the Illinois FOIA, were expressly exempted. The Supreme Court rejected the Air Force’s argument and included this observation:

“Congressional concern for the protection of the kind of confidential personal data usually included in a personnel file is abundantly clear. But Congress also made clear that nonconfidential matter was not to be insulated from disclosure merely because it was stored by the Agency in its ‘personnel’ files. Rather, Congress sought to construct an exemption that would require a balancing of the individual’s right of privacy against the preservation of the basic purpose of the Freedom of Information Act ‘to open agency action to the light of public scrutiny.’ ” 425 U.S. at 372, 48 L. Ed. 2d at 27, 96 S. Ct. at 1604.

We believe the reasoning of the Supreme Court in Department of Air Force v. Rose is applicable here. To hold that all information contained in a personnel file is exempt from public disclosure simply because it is in a personnel file would permit a subversion of the broad purposes of the Act. (See also Family Life League v. Department of Public Aid (1986), 112 Ill. 2d 449, 457-58, 493 N.E.2d 1054, 1058.) Our conclusion is buttressed by section 8 of the Act (Ill. Ann. Stat., ch. 116, par. 208 (Smith-Hurd Supp. 1989)), which provides that “[i]f any public record that is exempt from disclosure under Section 7 of this Act contains any material which is not exempt” the public body shall delete the exempt material and make the rest of the information available. Section 8 includes all public records exempted from disclosure and makes no exception of personnel records. It appears inescapable to us that the legislature recognized that some matters in personnel records may be discoverable. We note that the defendant has made available the names, salaries, supervisory titles and dates of hire of all the assistant State’s Attorneys. All that information is contained in personnel files and, we judge, was properly disclosed.

We turn now to the alternative argument of the defendant that the disclosure of racial information constitutes a clearly, unwarranted invasion of the personal privacy of the assistant State’s Attorneys.

The State’s Attorney is required by Federal law to keep records for the completion of a report to be filed annually with the Equal Employment Opportunity Commission (EEOC). (29 C.F.R. §§1602.30, 1602.32 (1989).) That report contains the number of employees who are classified into five separate racial and ethnic groups: blacks, American Indians (including Alaskan Natives), Asians (including Pacific Islanders), Hispanics (including persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish origin or culture regardless of race) and whites other than Hispanics. Neither party was certain of the procedure followed by those who interviewed prospective assistant State’s Attorneys in determining racial identification. The attorney for the defendant informed us that the determination was made by visual or “anecdotal” examination. The attorney for the plaintiff told the trial judge that the designation of the employees’ racial category would be made by the person interviewing the employees and would be based on a “sight-check” by the interviewer or the interviewer could “request that the particular employee[s] indicate which of the various categories that they fall within.” On this question the EEOC Compliance Manual is instructive; it is also probative for reasons we will discuss later. The pertinent provisions of the manual are as follows:

“Although identification of race, sex, and ethnic status is an essential factor in determining compliance with various equal employment opportunity laws, an individual cannot be forced to identify him/herself by race, sex, or ethnic group. However, an exception to this general principle can be made where the information regarding race, sex, or ethnic group is necessary to determine an individual’s or employee’s eligibility to receive a benefit or to determine the amount of the benefit to which such person may be entitled.
* **
Self-identification is the preferred method of obtaining information necessary to identify an individual by race, sex, or ethnic group. Where information is not provided by an individual that indicates affiliation with a race, sex, or ethnic group, the person requesting the information should, where possible, secure and record the information through observation.
Note, the person attempting to secure information regarding race, sex, or ethnic affiliation should not second guess or in any other way change a self declaration made by an applicant or employee as to race, sex, or ethnic background. An exception to this rule can be made where the declaration by the applicant or employee is patently false.” EEOC Compliance Man. (CCH) par. 5403, §632.3(b)(2)(iii), at 4316 (Mar. 1987).

The report made to the EEOC contains only the aggregate numbers in each category; it does not contain a racial designation for each separate assistant State’s Attorney. The information provided in the report was made available to the plaintiff, but the plaintiff deemed that information insufficient.

The plaintiff’s argument in the trial court was that the race of all assistant State’s Attorneys is self-evident; therefore, all assistant State’s Attorneys cannot reasonably expect that their race would be a matter of personal privacy; and, therefore, disclosure of their race would not be an invasion of personal privacy. The heart of the syllogism is the premise that the race of each assistant State’s Attorney is self-evident. It is a premise that the trial judge did not accept, and neither do we. Significantly, the plaintiff’s attorney recognized that the person interviewing an assistant State’s Attorney made the racial designation by a “sight-check” or by requesting the information from the employee. Race, although often apparent, is not always a “self-evident” characteristic. (See People v. Phillips (1989), 186 Ill. App. 3d 668, 671 n.1, 542 N.E.2d 814, 816 n.1. “The record shows that the trial judge and the attorneys were not even sure of the exact racial composition of the jury. Apparently, the race of one of the jurors was not visually discernible.”) Judging from the EEOC Compliance Manual, experience has shown that interviewers are often unable to determine race by visual examination. To illustrate further the uncertainty of the racial classification of the required records, we point out that EEOC regulations require that persons of any “Spanish origin or culture” shall be designated as Hispanic “regardless of race." (Emphasis added.) 29 C.F.R. §1607.4 (1989).

Moreover, although the race of assistant State’s Attorneys may be apparent in most cases, their occupation is not apparent to anyone other than those who deal with them professionally. Thus, even if we were to assume that the race of all assistant State’s Attorneys was apparent to those who deal with them in their professional capacities, that does not mean that the assistant State’s Attorneys have no reasonable expectation that a compilation of their respective names and races will not be disclosed to the public at large. The fact that information “is not wholly ‘private’ does not mean that an individual has no interest in limiting disclosure or dissemination of the information.” (United States Department of Justice v. Reporters Committee for Freedom of the Press (1989), 489 U.S. 749, 770, 103 L. Ed. 2d 774, 794, 109 S. Ct. 1468, 1480.) This is especially true in the setting in which this case arose. The then State’s Attorney, Richard M. Daley, was a candidate for mayor of Chicago, and the question of the racial composition of his office became a political issue. It is not unreasonable to assume that many assistant State’s Attorneys did not want their names and races to be drawn publicly into a political dispute. Again judging from the EEOC Compliance Manual, experience has shown that some persons do not want to disclose their race, even to the interviewer.

In Reporters Committee, the court quoted from several sources in explaining the meaning of “privacy”:

“The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others. *** [E]ven if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which shall be given them.” 489 U.S. at 763 n.15, 103 L. Ed. 2d at 789 n.15, 109 S. Ct. at 1476 n.15, quoting Warren & Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 198 (1890-1891).
“Privacy, in my view, is the rightful claim of the individual to determine the extent to which he wishes to share of himself with others. *** It is also the individual’s right to control dissemination of information about himself.” 489 U.S. at 764 n.16, 103 L. Ed. 2d at 790 n.16, 109 S. Ct. at 1476-77 n.16, quoting A. Breckinridge, The Right to Privacy, 1 (1970).
“Privacy is the claim of individuals *** to determine for themselves when, how, and to what extent information about them is communicated to others.” 489 U.S. at 764 n.16, 103 L. Ed. 2d at 490 n.16, 109 S. Ct. at 1477 n.16, quoting A. Westin, Privacy and Freedom, 7 (1967).

It is our holding, therefore, that it cannot be said, as a matter of law, that the assistant State’s Attorneys, or any public employees, for that matter, have no reasonable expectation that their racial identification will not be made the subject of a public debate. To the contrary, they have a reasonable expectation that they will have some say as to “when, how or to what extent [such] information about them is communicated to others.” (Reporters Committee, 489 U.S. at 764 n.16, 103 L. Ed. 2d at 490 n.16, 109 S. Ct. at 1477 n.16.) It is also our holding that the judge’s finding that the dissemination of the information sought by the plaintiff would be an invasion of privacy is not against the manifest weight of the evidence. Whether it constituted a “clearly unwarranted invasion of privacy” depends on the weighing of other factors which will be discussed later.

In this court the plaintiff appears to have deviated slightly from the position it took in the trial court. It now says that race is a self-evident physical characteristic for a “vast majority of people.” The plaintiff now concedes that there may be some assistant State’s Attorneys whose race is not obvious; but, the plaintiff argues, the privacy of those few must be surrendered for the overall public good — the public good being the public’s right to know whether the elected State’s Attorney is complying with laws involving discrimination in hiring and promotions. That the rights of the minority must be sacrificed because the majority may not assert them is an argument that we cannot accept. Nor can we accept the plaintiff’s argument that by accepting public employment the assistant State’s Attorneys yielded all right to privacy. The plaintiff conceded that disclosure of the religious affiliation or marital status of an assistant State’s Attorney would be protected from disclosure, but we fail to see why they might not be disclosed, if we accept the plaintiff’s argument that public employment established a waiver of any right of privacy. In the Department of Air Force v. Rose (1976), 425 U.S. 352, 48 L. Ed. 2d 11, 96 S. Ct. 1592, the plaintiff sought case summaries of disciplinary proceedings against individual cadets. The Supreme Court held that the case summaries, from which the names of the individual cadets had been deleted, were discoverable under the Federal FOIA. No one ever suggested that the cadets, by accepting appointment to the Air Force Academy and thereby becoming public employees, surrendered their right to privacy.

Both sides agree that no reported case is factually in point, but both refer to several cases which deal with disclosure of racial information. The principal case relied on by the defendant is Bowie v. Evanston Community Consolidated School District No. 65 (1989), 128 Ill. 2d 373, 538 N.E.2d 557. In Bowie, the plaintiff sued the school district under the FOIA seeking the disclosure of test scores for students from certain years, grades and schools within the district and a list of education programs. The test scores were to designate the race of each student but not the name or sex of the student. The position of the defendant was that disclosure of the information was barred by the Illinois School Student Records Act (Ill. Rev. Stat. 1985, ch. 122, par. 50—1 et seq.).

The school district then released a report summarizing the students’ performance on the tests by school, grade and race but not the individual scores of the students. The appellate court reversed the dismissal of the complaint and held that the plaintiff’s request that the results be “masked” and “scrambled” was proper since the individual students could not then be identified. The supreme court agreed with the reasoning of the appellate court but remanded the case to the trial court to determine whether or not compliance would be unduly burdensome or whether there were so few students of one race in the class that disclosure of the test results by race would result in the students’ identification. The Bowie case is not in point because no one ever claimed that the individual students should be identified by race.

The defendant has also cited other cases which held that the identification of a person by race was improper. Those cases involve situations where the racial identification was made in an attempt to exclude minority participation; obviously, they are not in point.

The plaintiff has cited a number of cases which involve discovery orders in racial discrimination suits. (See, e.g., Garrett v. City of San Francisco (9th Cir. 1987), 818 F.2d 1515.) Those cases do not assist us. Apart from the fact that the information sought in each case was deemed necessary to assist the plaintiff to prove his case of racial discrimination, we note that discovery orders are subject to protective limitations. To illustrate the court’s power to control dissemination of information, in Washington Post Co. v. Minority Business Opportunity Comm’n (D.C. App. 1989), 560 A.2d 517 (which did not involve a discovery order), the court of appeals ordered the trial court to examine the records in camera, to consider a number of factors, including a claim of privilege, and to make a judgment as to what material should be disclosed. Moreover, what may be subject to disclosure under discovery rules is not necessarily disclosable under the Freedom of Information Act. Federal Trade Comm’n v. Grolier Inc. (1983), 462 U.S. 19, 76 L. Ed. 2d 387, 103 S. Ct. 2209.

The plaintiff has cited two cases which involved the question of race, Washington Post Co. and State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St. 3d 170, 527 N.E.2d 1230. In Washington Post, the requested materials related to 15 companies which sought to participate as local minority business enterprises in the District of Columbia’s affirmative action “set-aside” program. The defendant and two businesses which intervened in the trial court contended that the information sought was exempt because its disclosure would significantly impair the firms’ competitive position. The court of appeals held that it was “not persuaded that disclosure of the race, per se, of the principals of an enterprise would lead to competitive injury.” (Washington Post, 560 A.2d at 523.) No claim of individual privacy was made, and, more important, racial identification was necessary to determine whether a party could participate in the program. In Cincinnati Post, the plaintiff sought reports which were lists of individuals who were in jail or who were about to be sentenced. The lists identified the individuals, in part, as to sex, race and age. The defendant, a court administrator, resisted disclosure on the ground that the records sought were his “work product.” Again, no claim of individual privacy was made.

In determining whether the information requested here should be disclosed, “a court must balance the public interest against the interest [the legislature] intended [section 7(bXii)] to protect.” (Reporters Committee, 489 U.S. at 776, 103 L. Ed. 2d at 797, 109 S. Ct. at 1483; see also Bowie, 128 Ill. 2d at 381.) In striking that balance the court must consider four factors: (1) the plaintiff’s interest in disclosure; (2) the public interest in disclosure; (3) the degree of the invasion of personal privacy; and (4) the availability of alternative means of obtaining the requested information. Margolis v. Director of Department of Revenue (1989), 180 Ill. App. 3d 1084, 536 N.E.2d 827.

With respect to the first factor, the plaintiff concedes, under the compulsion of Reporters Committee, that news media do not have any special interest that is not shared by any other member of the public. (Reporters Committee, 489 U.S. at 771, 103 L. Ed. 2d at 794-95, 109 S. Ct. at 1480-81.) On the other hand, a court should not ignore the reality that disclosure to the plaintiff means potentially far greater dissemination of the information than if it were given to a member of the public.

The next factor — the public interest in disclosure — must be considered in light of the plaintiff’s concession that the information it seeks is in no way relevant in determining whether the assistant State’s Attorneys are performing their duties or whether the defendant is performing his duty as the county’s chief legal officer. Rather, the plaintiff maintains, it is entitled to the information to determine whether the information provided by the State’s Attorney to the EEOC is accurate; in short, to determine whether the defendant told the EEOC the truth and thereby to determine whether the State’s Attorney is guilty of discriminatory practices.

A presumption exists that a public officer will act in accordance with the law. (Taylor v. County of St. Clair (1974), 57 Ill. 2d 367, 312 N.E.2d 231.) Consequently, it is presumed that the defendant is in compliance with the anti-discrimination laws, and it is presumed that the defendant provided accurate information to the EEOC. Whether the defendant is in compliance with the law and whether the information he provides to the EEOC is accurate are subject to review by the EEOC itself. “To the extent that the [EEOC] believes a report is incorrect, §709(c) of Title VII and 29 C.F.R. §1602 implicitly authorizes [sic] the [EEOC] to make an inquiry into the accuracy of the report.” (EEOC Compliance Man. (CCH) par. 121, at 235 (Aug. 1988).) It is presumed that the EEOC itself is acting in accordance with its duties. Under all these circumstances, we believe we must strain to find that the public is interested in acting as still another watchdog to determine whether the State’s Attorney is complying with anti-discrimination requirements in the operation of his office, especially since no proof of failure to comply has been offered.

The next factor is the degree of the invasion of personal privacy. For the reasons we have already advanced, we judge that the record supports a finding that publication of the names and races together of the individual assistant State’s Attorneys could constitute a substantial invasion of personal privacy.

The last factor — the availability of alternative means of obtaining the requested information — has been subject to contrary views on the part of the plaintiff. It informed us in its opening brief that the court “may in its balancing process, consider the extent to which the requested information is otherwise available.” However, when the point was raised in oral argument, the plaintiff’s attorney referred us to a case, cited in its reply brief, State ex rel. Cincinnati Post v. Schweikert (1988), 38 Ohio St. 3d 170, 527 N.E.2d 1230. In that case the court said that the “law does not require members of the public to exhaust their energy and ingenuity to gather information which is already compiled and organized in a document created by public officials at public expense.” (38 Ohio St. 3d at 173-74, 527 N.E.2d at 1233.) We do not construe Cincinnati Post to mean that the availability of other sources of the information sought may not be considered; it means that the fact that other sources are available is not conclusive.

We acknowledge, however, that the question of whether other sources of information are available is not susceptible of an easy answer. The only other source appears to be the assistant State’s Attorneys themselves. Section 7(b)(ii) expressly provides that exempt information may be disclosed if “such disclosure is consented to in writing by the individual subjects of such information.” (Ill. Rev. Stat. 1987, ch. 116, par. 207(b)(ii).) We can only speculate whether the assistant State’s Attorneys would be willing to divulge the requested information, if asked to do so by the plaintiff. Of course, a refusal to divulge by a substantial number of assistants would fortify the defendant’s argument that the assistant State’s Attorneys have a reasonable expectation of privacy. In any event, based on the record before us, we are unable to determine whether this factor weighs in favor of the plaintiff or the defendant.

Considering the other three factors we have discussed, however, we cannot say that the trial judge abused his discretion in concluding that the information sought by the plaintiff would be an unwarranted invasion of privacy. For that reason, the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE CAMPBELL

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellee.
    First District (1st Division)
    No. 1—88—0009
    Opinion filed May 14, 1990.

      Kiesler & Berman, of Chicago (Robert L. Kiesler and David J. Kiesler, of counsel), for appellant.
    Haskell & Perrin, of Chicago (Stephen Sonderby, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, United States Fidelity and Guaranty Company (USF&G), a primary insurer, appeals from the dismissal of its amended complaint filed against defendant, Continental Casualty Company (CNA), excess insurer, seeking a declaratory judgment as to its rights to recover the amount it had expended for settlement purposes allegedly in excess of the primary limits of its policy. The underlying cause of action which precipitated USF&G’s declaratory action concerns a lawsuit filed by Gustaf Brehmer and his wife against St. Anne’s Hospital on November 12, 1979, seeking damages for injuries sustained by Brehmer, an employee of A.J. Maggio Co. (Maggio), while he was doing construction work at St. Anne’s. On appeal, USF&G contends that: (1) the original complaint, reinstated to supplement the amended complaint, properly stated a cause of action for equitable contribution or apportionment; (2) count I of the amended complaint properly stated a cause of action for breach of contract implied in law; (3) count II of the amended complaint properly stated a cause of action for breach of contract implied in fact; and (4) count III of the amended complaint properly set forth a theory of equitable estoppel which precludes CNA from relying on the dismissal of the third-party action as a defense. For the following reasons, the judgment of the trial court is affirmed.

Prior to the Brehmer lawsuit, USF&G had issued two insurance policies to Maggio: (1) a workers’ compensation policy (Workers’ Policy) covering the period of June 30, 1975, through June 29, 1980, and (2) a general liability policy (General Policy) covering the period from June 30, 1979, through June 29, 1980. Each policy had a liability limit of $500,000. The General Policy included an endorsement naming St. Anne’s as an additional insured, “but only with respect to liability out of operations performed” for St. Anne’s by Maggio. Pursuant to the terms of the General Policy, the $500,000 liability limit would be reduced by any amount paid as damages on behalf of either Maggio or St. Anne’s. The Workers’ Policy covered only Maggio.

On January 17, 1980, CNA had issued an umbrella excess third-party liability policy (Excess Policy) in favor of Maggio with a liability limit of $5 million. The Excess Policy allegedly protected Maggio against any claim by St. Anne’s and protected St. Anne’s against any claim arising from work performed by Maggio at the St. Anne’s work site. A copy of the Excess Policy was not included in the record for this court’s review.

Following Brehmer’s lawsuit, St. Anne’s filed a four-count third-party complaint against Maggio, seeking contribution or indemnification from Maggio in the event St. Anne’s was found liable in the Brehmer action.

Pursuant to the Workers’ Policy, USF&G paid Brehmer’s workers’ compensation claim and, therefore, had a subrogated interest as to this amount. Subsequently, on August 2, 1984, the parties to the Brehmer lawsuit reached a settlement in the amount of $2,225,000. In addition, the workers’ compensation lien was compromised to a sum of $225,000, which sum was allocated to the ultimate settlement by way of forgiveness of the debt by USF&G in favor of Brehmer. On September 24, 1984, an order was entered on Brehmer’s motion compelling defendants to tender their settlement checks and releases in connection with the settlement entered into on August 2, 1984. The order was entered nunc pro tunc to August 2, 1984. As a result, USF&G paid $775,000, CNA paid $125,000, and USF&G forgave its workers’ compensation lien of $225,000. The balance was paid by the remaining defendants, who are not parties to this appeal.

Subsequently, in an order entered January 7, 1985, the trial court granted Maggio’s motion to vacate the order of September 24, 1984, dismissed all counterclaims and third-party actions, and restated the settlement amount as $2,450,000, with $225,000 of that amount being attributed to USF&G’s forgiveness of the workers’ compensation lien.

On July 8, 1986, USF&G filed its declaratory judgment action against CNA. USF&G alleged that the settlement had been predicated on the agreement between itself and CNA that Brehmer’s injuries were the fault of only Maggio and that no fault was to be attributed to St. Anne’s. USF&G admitted that it had a duty to indemnify Maggio up to the amount of $500,000 under the Workers’ Policy. However, USF&G claimed that any excess payment over that amount should have been paid by CNA pursuant to the Excess Policy. Therefore, USF&G sought a declaration that CNA owed it $500,000 plus interest. As an alternative argument, USF&G argued that if St. Anne’s were found to have been liable for Brehmer’s injuries, then St. Anne’s would be entitled to contribution from Maggio, which should be paid by CNA pursuant to its Excess Policy.

In response, CNA moved to dismiss on the grounds that any determination of liability as between St. Anne’s and Maggio was waived by the settlement and the concomitant dismissal with prejudice of St. Anne’s third-party complaint against Maggio. The trial court granted CNA’s motion to dismiss for failure to state a cause of action and granted USF&G 45 days to file an amended complaint.

USF&G’s two-count amended complaint, filed October 1, 1987, alleged breach of contract implied at law and, alternatively, breach of contract implied in fact. Subsequently, USF&G moved to reinstate its original complaint to supplement the amended counts. The trial court granted reinstatement, then dismissed USF&G’s amended complaint. This appeal followed.

Initially, USF&G contends that its complaint had stated a sufficient cause of action for equitable contribution or apportionment from CNA for that portion of the settlement which exceeded the liability limits of USF&G’s Workers’ Policy and which CNA was contractually obligated to pay under the terms of its Excess Policy. USF&G’s argument fails for two reasons.

First, in order to determine whether CNA is “contractually obligated” to pay a sum under its Excess Policy, a determination has to be made as to the degrees of liability between St. Anne’s and Maggio. This determination was never made by the trial court. Instead, the third-party complaint filed by St. Anne’s against Maggio was dismissed with prejudice at the time the settlement order was entered.

Pursuant to USF&G’s complaint, Maggio and St. Anne’s had agreed to pay Brehmer $1,125,000 of the settlement amount. However, there is no breakdown of that amount as to the liability between Maggio and St. Anne’s. USF&G paid $1 million and CNA paid $125,000. In its reply brief, USF&G admits that $500,000 of the $1 million it paid came from the Workers’ Policy which insured Maggio, and the remaining $500,000 was from the General Policy which named St. Anne’s as an additional insured. Each of these amounts represented the maximum liability on each policy. Thus, by USF&G’s own admission, it had paid within the liability limits of the two relevant policies. However, USF&G now claims that the $500,000 paid under the General Policy was not in recognition of any liability on the part of St. Anne’s. Rather, it was paid with the intention that the amount would be reimbursed by CNA under the Excess Policy insuring Maggio, in recognition that Maggio was 100% liable.

Contrary to USF&G’s argument, the settlement conforms to the primary and excess insurer obligations of USF&G and CNA, respectively, i.e., CNA’s obligations are triggered when USF&G’s liability limits are reached. That portion of the settlement attributed to Maggio and St. Anne’s was $1,125,000. USF&G’s total liability limitation under its two policies insuring Maggio and St. Anne’s was $1 million. USF&G paid that amount and CNA, pursuant to its Excess Policy, paid the excess amount of $125,000. In order to agree with USF&G’s position that the settlement obligation should have been distributed differently as between USF&G and CNA, a determination as to the degree of liability attributed to Maggio and St. Anne’s would have had to have been made by the trial court. USF&G argues that “clearly” St. Anne’s liability, if any, would be technical and secondary and St. Anne’s would “undoubtedly” be able to pass most, if not all, of its liability on to Maggio. This is not a determination to be made on appeal.

The second reason this argument fails is that the doctrine of equitable contribution does not apply to primary/excess insurer issues. USF&G correctly argues that this court has recognized the doctrine of equitable contribution in insurance situations. However, in insurance law, contribution arises among co-insurers where there is an identity between the policies as to parties and insurable interests and risks. (Royal Globe Insurance Co. v. Aetna Insurance Co. (1980), 82 Ill. App. 3d 1003, 403 N.E.2d 680; Zurich Insurance Co. v. Raymark Industries, Inc. (1986), 145 Ill. App. 3d 175, 494 N.E.2d 634.) This court has expressly recognized that differences exist between the “unique and special coverage” of an excess policy and a primary policy. (Illinois Emcasco Insurance Co. v. Continental Casualty Co. (1985), 139 Ill. App. 3d 130, 487 N.E.2d 110.) By definition, the policies do not cover the same risks, i.e., when the protections of the primary policy cease, the protections under the excess policy commence. See also Pekin Insurance Co. v. Cincinnati Insurance Co. (1987), 157 Ill. App. 3d 404, 510 N.E.2d 524.

USF&G further argues that the dismissal of the third-party complaint does not bar USF&G’s action for declaratory judgment. Initially, USF&G asserts that its position is grounded in equity, not the Illinois Contribution Act, and that the trial court erred in analyzing the facts with respect to the Act. USF&G correctly argues that “An Act in relation to contribution among joint tortfeasors” (the Act) (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.) does not apply to the facts at bar. The Act specifically applies to joint tortfeasors and not to a declaratory judgment action between insurers of those tortfeasors. However, section 2(f) of the Act does indicate that anyone who has made a settlement payment on behalf of a tortfeasor is subrogated to the tortfeasor’s right of contribution. Thus, section 2(f) reinforces the fact that there must be a liability determination as between the joint tortfeasors, i.e., Maggio and St. Anne’s, before the obligations of the insurers can be determined.

USF&G further claims that, in its declaratory action, it was not trying to alter or to affect the legal relationship between Brehmer, Maggio and St. Anne’s; it merely sought a determination of Maggie’s and St. Anne’s relative culpability. USF&G claims that the latter determination would only affect USF&G’s and CNA’s rights and obligations, and would have no legal impact on Maggio and St. Anne’s. In our view, this is a distinction without a difference. A determination of USF&G’s and CNA’s rights and obligations is an indirect determination of Maggie’s and St. Anne’s relative culpability.

Next, USF&G contends that its amended complaint for declaratory judgment properly stated a cause of action for breach of contract implied in law. USF&G argues that by contributing $500,000 in excess of its Workers’ Policy liability limits to the settlement, it rendered indemnification services for and on behalf of CNA and satisfied CNA’s contractual obligations to Maggio. In response, CNA argues that USF&G failed to plead facts showing or giving rise to a reasonable inference that CNA had ever accepted or acknowledged that a benefit had been conferred on CNA by USF&G when it paid the liability limits of its Workers’ Policy and its General Policy to settle a claim against two of its insureds.

It is well established that a cause of action for breach of contract implied in law must allege that one party knowingly and voluntarily received benefits from another; that the benefits were related to an obligation or duty of the recipient; and that it would be inequitable for the recipient to retain the benefits without payment. (Hartman v. Townsend (1988), 169 Ill. App. 3d 111, 117, 523 N.E.2d 199, citing Arthur Rubloff & Co. v. Drovers National Bank (1980), 80 Ill. App. 3d 867, 875, 400 N.E.2d 614; Elliot v. Villa Park Trust & Savings Bank (1978), 63 Ill. App. 3d 714, 380 N.E.2d 507.) To be factually sufficient, a complaint must plead substantial allegations of fact which bring the claim within the legally recognized cause of action. (Ill. Rev. Stat. 1987, ch. 110, par. 2—601.) For purposes of a motion to dismiss, all well-pled facts are to be taken as true. Conclusions of law and facts which are not supported by allegations of specific facts are not considered to be well-pled facts and are not admitted by a motion to dismiss. Bank of Lincolnwood v. Comdisco, Inc. (1982), 111 Ill. App. 3d 822, 444 N.E.2d 657.

In the present case, USF&G’s cause of action for breach of an implied-in-law contract is predicated upon conclusions of law which do not support the cause of action. Specifically, USF&G alleges that the underlying settlement was based on facts which indicated fault on Maggie’s part and no fault on St. Anne’s part; that St. Anne had a right to pass its entire liability onto Maggio; and that any amount over $500,000 should have been paid by CNA. The first two stated allegations assume that liability as between Maggio and St. Anne’s has been determined. As previously discussed, the third-party complaint, originally filed to determine the proportion of liability, was dismissed with prejudice. The final allegation that CNA is responsible for any amount in excess of $500,000 is a determination for the court to make, not for USF&G to allege.

As indicated, USF&G has failed to allege well-pled facts to support two essential requirements to an action for breach of an implied-in-law contract: that CNA had had any obligation or duty to pay the excess or that it was inequitable for CNA to have paid only $125,000 of the settlement. Accordingly, the trial court properly dismissed count I, which alleged breach of an implied-in-law contract.

Next, USF&G contends that count II of its amended complaint properly stated a cause of action for breach of a contract implied in fact. Pursuant to Illinois law, an implied-in-fact contract is one which imposes a contractual duty by reason of a promissory expression which may be inferred from the facts, circumstances, and promissor’s expressions that the promissor intends to be bound. (In re Estate of Milborn (1984), 122 Ill. App. 3d 688, 461 N.E.2d 1075.) Essentially, USF&G claims that an implied-in-fact contract was established at the settlement conference by CNA’s failure to respond to USF&G’s alleged statements that it was not making payment as a volunteer and by CNA’s alleged acknowledgement that USF&G was going to file a declaratory judgment action to determine the parties’ liability.

In response, CNA argues that USF&G failed to state a cause of action for breach of an implied-in-fact contract by not including allegations of any mutuality of understanding as to terms, consideration or duration of the implied agreement. CNA cites to In re Estate of Milborn (1984), 122 Ill. App. 3d 688, 461 N.E.2d 1075, as support for its position. In Milborn, plaintiffs filed claims against decedent’s estate, seeking $5,000 for services performed for decedent. The evidence at trial consisted solely of the plaintiffs’ testimony, stating that for the previous five years, plaintiffs had prepared the decedent’s meals, cleaned her house, did most of her laundry, made sure she took her medicine, maintained her lawn and house, and provided necessary transportation. In addition, during the last few months of decedent’s life, one of the plaintiffs had been given a power of attorney which authorized him to handle the decedent’s financial matters. Both plaintiffs testified that they had expected to be compensated. The trial court found that plaintiffs had established an implied contract, but neglected to state which kind. On appeal, the reviewing court held that an implied-in-fact contract had not been established on the grounds that the record did not reveal any specific acts, conduct, or circumstances which would infer a promissory expression or intent to be bound and there was no evidence of a mutual understanding between the parties or of the implied terms of the alleged agreement.

Similarly, in the present case, USF&G’s amended complaint fails to reveal any acts, conduct or circumstances at the settlement conference which would infer CNA’s intent to be bound to any further distribution of liability. The fact that CNA acknowledged USF&G’s intention to file a declaratory action is nothing more than an acknowledgement. CNA did not promise that it would not move to dismiss the action or that it would pay an increased share of the settlement. Moreover, USF&G’s allegations as to what had transpired at the settlement conference are merely conclusions of fact without any supporting factual allegations. As such, they do not support a cause of action for breach of an implied-in-fact contract. See Bank of Lincolnwood v. Comdisco, Inc. (1982), 111 Ill. App. 3d 822, 444 N.E.2d 657.

Finally, USF&G contends that count III of its amended complaint sufficiently alleged equitable estoppel, thereby precluding CNA from relying on the dismissal of the third-party complaint as a defense. In order to sufficiently state a cause of action for equitable estoppel, the following elements must be alleged: (1) the party against whom estoppel is asserted must, by word or conduct, have misrepresented material facts; (2) the party against whom estoppel is asserted must have known that the misrepresentations were untrue; (3) the party claiming benefit of estoppel must not have known that the misrepresentations were untrue; (4) the party against whom estoppel is asserted must have intended or expected that his or her misrepresentations would be acted upon by the party claiming benefit of estoppel; (5) the party claiming benefit of estoppel must have relied or acted upon the misrepresentations; and (6) the party claiming benefit of estoppel must be in a position of prejudice if the party against whom estoppel is asserted is permitted to deny the truth. American Savings Association v. Conrath (1984), 123 Ill. App. 3d 140, 462 N.E.2d 849.

In count III of its amended complaint, USF&G alleged that during the settlement conference, it had made repeated references to the issue of USF&G’s and CNA’s relative liability, that it had expressly indicated it would be filing a declaratory judgment action against CNA in the event USF&G had to pay more than its pro-rata share, and that USF&G was not making payment as a volunteer. In addition, USF&G alleged that the trial court stated that USF&G and CNA would have to “straighten out” the apportionment issue and that it did not know how a settlement order could have any effect on that issue. USF&G then alleged that CNA had made no objections to the statements made during the settlement conference and had acknowledged the fact that USF&G intended to file a declaratory judgment action. Based on this conduct by CNA, USF&G alleged that it had changed its position for the worse by having the third-party action dismissed, which it would not have done but for CNA’s representations that it would litigate the parties’ respective degrees of liability.

In essence, USF&G is attempting to blame CNA for its procedural error in dismissing the third-party complaint with prejudice. Without a determination as to the issue raised in that complaint, a determination as to the insurers’ respective degree of liability cannot be made. USF&G’s cause of action for equitable estoppel fails at the outset for insufficiency because it does not allege that CNA misrepresented any material facts. As the plain language of USF&G’s complaint states, CNA said or did nothing in response to USF&G’s statements regarding liability as between CNA and USF&G and merely “acknowledged” CNA’s statement that it would file a declaratory judgment action.

Regarding CNA’s failure to respond to USF&G’s comments as to the respective liability of USF&G and CNA at the settlement conference, the conference concerned the liability of the various defendants to Brehmer. It was not a conference to determine the rights of USF&G and CNA as to each other. Thus, CNA had no duty to discuss that issue. Without the requisite duty, silence does not constitute conduct inducing detrimental reliance. (Bodine v. Bodine (1986), 141 Ill. App. 3d 21, 489 N.E.2d 911.) Moreover, CNA’s acquiescence to the trial court’s statement that it did not see how the settlement would effect a determination as to liability between USF&G and CNA does not provide grounds for equitable estoppel. Counsel for USF&G and CNA, present at the settlement conference, are presumed to be equally capable of knowing and applying the law. USF&G’s failure to realize the impact of dismissing the third-party complaint cannot be attributed to CNA. (See City of Aurora v. Green (1984), 126 Ill. App. 3d 684, 467 N.E.2d 610.) Moreover, the trial court’s comment did not infer that a dismissal of the third-party complaint would have no effect on a future action between USF&G and CNA. The comment referred only to the settlement with Brehmer. Accordingly, the trial court properly dismissed count III of USF&G’s amended complaint for failure to state a cause of action for equitable estoppel.

For the aforementioned reasons, the judgment of the trial court is affirmed.

Affirmed.

O’CONNOR and MANNING, JJ., concur.

      The endorsement indicates that the additional insured is Little Sisters of the Poor, North Side Chicago, Inc. The record does not explain the connection between this organization and St. Anne’s. However, both parties refer to St. Anne’s as the additional insured.

      Counsel for USF&G on appeal did not represent USF&G during negotiations or at the trial court proceedings.