author: PRESIDING JUSTICE INGLIS

text:
    JUDITH TESTIN et al., Plaintiffs-Appellees, v. DREYER MEDICAL CLINIC, Defendant-Appellant (Copley Memorial Hospital et al., Defendants).
    Second District
    No. 2—92—0352
    Opinion filed December 18, 1992.

      Mary A. Strunk, of O’Reilly, Cunningham, Norton & Mancini, of Wheaton (William F. Cunningham, of counsel), for appellant.
    Thompson, Lamont & Flaherty, P.C., of Aurora (John M. Lament, of counsel), for appellees.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Dreyer Medical Clinic (Dreyer), appeals after the trial court ordered that its attorney be prohibited from engaging in ex parte communication with Dr. Paul Berwick, the treating physician for plaintiff, Judith Testin. Dr. Berwick is an employee, shareholder and director of Dreyer. The trial court also ordered that defense counsel, William Cunningham, pay a $100 fine for contempt of court for announcing that he intended to violate the court’s order. The issues on appeal are: (1) whether Testin waived the physician/patient privilege by either filing suit or allowing ex parte communication with other physicians at Dreyer; (2) whether prohibiting Dreyer’s attorney from speaking ex parte with Berwick violates the due process clause of the State and Federal Constitutions; (3) whether Illinois law permits ex parte communication between a medical corporation and its employee/shareholder who treated plaintiff; (4) whether defense counsel can be held in contempt for refusing to comply with an order prohibiting ex parte communication between his client and an employee/ shareholder of the client; (5) whether the court’s order violates the constitutional rights of freedom of speech and association in the State and Federal Constitutions; and (6) whether Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, which held that ex parte communication between defense counsel and plaintiff’s treating physician is prohibited, should continue to be followed. We affirm.

Richard and Judith Testin filed a six-count complaint against Dreyer, Copley Memorial Bospital and David Lando on May 3, 1991, of which count I is relevant to this appeal. The Testins alleged that gynecological surgery was performed on Judith on July 2, 1989, by Dr. Scott Donovan, an employee at Dreyer. They also alleged that Dreyer, through its employees, failed properly to diagnose and treat a post-operative bowel complication resulting in a bowel rupture. The complaint was subsequently amended to add Dr. Ann West, an employee of Dreyer, as an additional defendant.

Dreyer made a motion to communicate ex parte with Dr. Paul Berwick, an employee, shareholder and director of Dreyer. Dr. Berwick was consulted by Dreyer’s obstetricians after Judith’s gynecological surgery about her bowel problem. He then performed the procedure that determined Judith had a ruptured bowel. Dreyer claimed that it was necessary to meet with Dr. Berwick ex parte in order to review the litigation and the treatment he rendered to Judith. Dreyer also claimed that Judith waived the physician-patient privilege by allowing Dreyer’s attorney to speak ex parte with other physicians in Dreyer’s obstetrics unit and by filing a lawsuit against Dreyer.

On December 10, 1991, after a hearing on Dreyer’s motion, the court ordered that pursuant to Petrillo Dreyer’s counsel would be prohibited from ex parte conferences with Dr. Berwick regarding medical care and treatment provided to Judith Testin.

Dreyer filed a motion to reconsider in which Dreyer’s counsel alternatively requested that the trial court issue a contempt citation against him because he expressly intended to violate the court’s December 10, 1991, order. On February 20, 1991, the trial court denied Dreyer’s motion to reconsider. The court also found that Dreyer’s counsel was in contempt of court and ordered that he pay a $100 fine. Dreyer thereafter filed a timely appeal.

We first address whether this court has jurisdiction to hear this appeal. Our supreme court has held that a judgment of contempt imposing a fine included in an unappealable interlocutory order is final and appealable. (People v. Verdone (1985), 107 Ill. 2d 25, 30, citing People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 174.) The court of review may also address the order of the trial court claimed to have been violated. (Verdone, 107 Ill. 2d at 30.) Thus, we have jurisdiction to address Dreyer’s contentions.

WAIVER OF PRIVILEGE

At issue is whether plaintiffs have waived the physician-patient privilege by either filing the lawsuit or allowing Dreyer’s counsel to speak ex parte with other physicians employed at Dreyer. Dreyer contends that the physician-patient privilege can be waived and waiver is not against public policy. Dreyer also cites section 8—802 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 8—802) to support its argument that the situation at bar is an exception to the physician-patient privilege. Finally, Dreyer cites Greene v. Rogers (1986), 147 Ill. App. 3d 1009, as support that filing a lawsuit waives the privilege.

Plaintiffs contend that they have not waived the privilege by allowing Dreyer’s counsel to speak ex parte with other Dreyer physidans. Plaintiffs daim they were following the rule in Ritter v. Rush-Presbyterian-St.Luke’s Medical Center (1988), 177 Ill. App. 3d 313, that the privilege is waived as to those physidans for whom the medical corporation may be held vicariously liable. Plaintiffs also claim the exceptions to the physician-patient privilege in section 8—802 of the Code are inapplicable here. Finally, plaintiffs argue that Greene is distinguishable.

We agree with plaintiffs that they did not waive the privilege when they allowed Dreyer’s counsel to speak ex parte with other physicians in Dreyer’s obstetrics unit. We note that Dreyer provided no case law that specifically addressed this issue. Although the Ritter case is not factually “on all fours” with our case, it provides insight into the issue. There, a radiology technician lowered the rails on a gurney on which the plaintiff was lying. The plaintiff fell off the gurney, fractured a facial bone, and was diagnosed with a subdural hematoma. (Ritter, 177 Ill. App. 3d at 315-16.) The hospital’s risk manager interviewed four physicians who treated the plaintiff after her fall. The plaintiff then moved to bar further ex parte communication among the hospital, her treating physicians and other hospital employees, which was granted by the trial court. On appeal, the defendant hospital contended that Petrillo was inapplicable because the treating physicians were also defendant’s staff physicians. 177 Ill. App. 3d at 316.

The Ritter court upheld the applicability of Petrillo, stating that the situation would be different if the hospital was being held vicariously liable for the negligence of an employee-physician. In that situation, the physician-patient privilege would effectively prevent the hospital from defending itself. 177 Ill. App. 3d at 317.

The Ritter case is factually distinguishable because the allegedly negligent employee was a nonphysician instead of a physician. However, in both our case and the Ritter case, the defendant-employer sought to speak with the plaintiff’s treating physician, who also happened to be employed by the defendant. As such, the Ritter case is analogous. Although the waiver rule that plaintiffs claim exists in Ritter is not evident, we find that the spirit of that rule is implied. The court implies that the physician-patient privilege does not apply when the medical entity wishes to communicate with the allegedly negligent physician through whom it may be -vicariously liable; otherwise, the privilege applies. Ritter, 177 Ill. App. 3d at 317-18.

Here, Dr. Berwick was not the allegedly negligent physician. Thus, the privilege would apply because Dreyer is not effectively prevented from defending itself in the lawsuit. Plaintiffs sued because of negligent treatment allegedly administered by Dreyer’s gynecological/ obstetrics personnel. Plaintiffs did not waive their privilege as to treatment given by Dr. Herwick, a subsequent treating physician, when they allowed Dreyer to communicate with physicians in the obstetrics unit. In a sense, the obstetrics unit was the specific defendant sued when Dreyer was sued because the care given by physicians in that department is the care in question. The fact that the subsequent treating physician the obstetricians consulted concerning Judith’s bowel problem happened to be affiliated with the same clinic should not render the physician-client privilege waived.

Further, we disagree with Dreyer’s argument that plaintiffs waived the privilege when they filed their lawsuit. Section 8—802 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 8—802) does not necessitate a different result. The exceptions to section 8—802 in question are subsections (2) and (4):

“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient, except only *** (2) in actions, civil or criminal, against the physician for malpractice, *** (4) in all actions brought by or against the patient *** wherein the patient’s physical or mental condition is an issue ***.” Ill. Rev. Stat. 1991, ch. 110, par. 8-802.

We have already distinguished this case from one where the treating physician is the allegedly negligent party, thereby rendering subsection (2) inapplicable. The Petrillo case discussed subsection (4):

“[W]e note that when a patient files suit, he implicitly consents to his physician releasing any of the medical information related to the mental or physical condition which the patient has placed at issue in the lawsuit ***.
The patient’s implicit consent, however, is obviously and necessarily limited; he consents only to the release of his medical information (relative to the lawsuit) pursuant to the methods of discovery authorized by Supreme Court Rule 201(a) (87 Ill. 2d R. 201(a)).” (Emphasis in original.) (Petrillo, 148 Ill. App. 3d at 591.)

Thus, subsection (4) does not allow for ex parte communication between plaintiff’s treating physician and defense counsel. Although the physician-patient privilege will eventually be broken, it will only occur pursuant to formal discovery methods.

Dreyer’s reliance on Greene (147 Ill. App. 3d 1009) and Mondelli v. Checker Taxi Co. (1990), 197 Ill. App. 3d 258, to support its waiver argument is misplaced. In Greene, the plaintiff’s treating physician was allowed to testify for the defense as the plaintiff had filed an action in which his wife’s physical condition was at issue. (Greene, 147 Ill. App. 3d at 1018.) However, this was not a situation where formal discovery methods were ignored or where ex parte communication occurred between the defense and the treating physician, which is the issue before this court.

In Mondelli, a professional associate of the treating physician had the status of treating physician imputed to him. (Mondelli, 197 Ill. App. 3d at 263.) The court specifically noted that both doctors specialized in neurosurgery, practiced in the same suite, and shared the same telephone number. (197 Ill. App. 3d at 263.) We agree with the court in Mondelli that the fact that both doctors were neurosurgeons was significant. As previously discussed, the physician-patient privilege was not waived here when plaintiff allowed the defense to speak ex parte with other doctors in the obstetrics unit as that was the particular unit alleged to have been negligent. Dr. Berwick was not in that unit, so we believe the privilege as to him had not been waived.

DUE PROCESS

Dreyer’s second contention is that its due process rights are violated when it is not allowed to speak ex parte with its employee, shareholder and director, Dr. Berwick. Dreyer argues that the ability to defend itself is a fundamental right, enjoying constitutional protection under the fifth and fourteenth amendments to the United States Constitution. Dreyer claims that this right is violated if it is prohibited from speaking ex parte with Dr. Berwick, who Dreyer argues is a key witness in the case. Plaintiffs counter that due process rights are not being skirted here because disallowing ex parte communication does not prevent contact with Dr. Berwick via formal discovery methods.

“The due process clauses of the Federal and State Constitutions protect against the deprivation of liberty or property without due process of law.” (Tiller v. Klincar (1990), 138 Ill. 2d 1, 13-14; U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) “[Procedural due process protections are triggered only when a constitutionally protected liberty or property interest is at stake.” (Tiller, 138 Ill. 2d at 14.) The basic requirements of procedural due process are notice and an opportunity to be heard and adequately defend one’s interests. Kaltsas v. City of North Chicago (1987), 160 Ill. App. 3d 302, 308.

We disagree with Dreyer’s assertion that its due process rights are being violated. Dreyer fails, in its brief, to elaborate on what information that could be obtained in an ex parte discussion with Dr. Berwick could not be obtained via discovery pursuant to Supreme Court Rule 201(a) (134 Ill. 2d R. 201(a)). Dreyer has been allowed to speak ex parte with the physicians in the obstetrics unit. Since the alleged negligence occurred during gynecological treatment, we believe that Dreyer is not hindered in preparing an adequate defense to the lawsuit. Its counsel is able to consult with the physicians specializing in gynecological/obstetrics medicine outside the framework of formal discovery. We fail to see the “difficulty,” “outright prejudice,” and “violation of the work product doctrine” Dreyer claims exists in preventing ex parte communication with Dr. Berwick.

Dreyer also cites Illinois Pattern Jury Instructions, Civil, No. 2.06 (3d ed. 1989) (hereinafter IPI Civil 3d No. 2.06), which states that an attorney has the right to interview a witness to determine what testimony he or she will give at trial. Dreyer argues that based on this instruction Dr. Berwick should be allowed to speak ex parte with Dreyer’s counsel so that he will make no statements constituting admissions on the part of Dreyer. Bowever, Dr. Berwick’s right to counsel is not the issue here. If he is concerned that his statements may constitute admissions, nothing prevents him from seeking legal counsel to advise him of that potential danger. This fact does not require that we allow Dreyer to speak ex parte with Dr. Berwick. Also, as will be discussed later, Dr. Berwick’s opinions may not constitute admissions binding upon Dreyer.

Further, the Petrillo court discounted the applicability of IPI Civil 3d No. 2.06 to defense counsel’s attempt to engage in ex parte communication with plaintiff’s treating physician. The court stated:

“We *** believe that [IPI Civil 3d No. 2.06] was promulgated for the single purpose of insuring that juries do not discount a witness’ testimony merely because that witness had previously talked to an attorney for one of the litigants.” (Petrillo, 148 Ill. App. 3d at 602.)

We agree that IPI Civil 3d No. 2.06 does not implicitly allow ex parte communication in this situation.

CONTEMPT

At issue is whether defense counsel representing a corporation may be held in contempt for refusing to comply with the court’s order prohibiting ex parte communication. Although Dreyer states this contention in the “issues presented” section of its brief, the “argument” section of the brief has no discussion relating particularly to this issue. Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) requires that the appellant present contentions with citation to authorities or references to the record; points not argued are waived. Thus, Dreyer has waived this issue.

We note that if we find the Petrillo doctrine applicable to this case, the court’s order will be affirmed, including that portion finding Dreyer’s counsel in contempt of court. Likewise, if Petrillo is inapplicable, the order will be vacated and the contempt order will fall as well. So, in reality, Dreyer’s contention will be indirectly addressed when the main issue is decided.

APPLICABILITY OF PETRILLO

Dreyer’s next contention is that Petrillo is inapplicable to our situation. Dreyer argues that Petrillo is distinguishable because Dr. Berwick was Judith’s treating physician and is an employee, shareholder and director of Dreyer. Dreyer claims that Petrillo is applicable only when the treating physician has no connection with the defendant. Further, Dreyer argues that the policy behind Petrillo has no relevance in the situation at hand as Dreyer, through Dr. Berwick, is already privy to Judith’s privileged information.

Plaintiffs contend that Petrillo firmly establishes that defense counsel is prohibited from ex parte communication with a plaintiff’s treating physician. They also claim, citing Ritter (177 Ill. App. 3d 313), that Petrillo applies even if the treating physician is an employee of the defendant medical corporation. Plaintiffs argue that Ritter is clear that agency or corporate principles do not negate the physician-patient privilege.

Although the factual situation in Petrillo is distinguishable from that in this cause, we believe that the reasoning behind Petrillo is equally as applicable here. The Appellate Court, First District, noted that public policy favors the existence of a confidential and fiduciary relationship between the physician and the patient. (Petrillo, 148 Ill. App. 3d at 587.) This policy is reflected by the code of ethics adopted by the medical profession and the fiduciary relationship between physicians and patients recognized by Illinois courts. (148 Ill. App. 3d at 588.) An ex parte conference concerning the confidences of the patient destroys the sanctity of the physician-patient relationship. (148 Ill. App. 3d at 591.) “[W]hen a patient files suit, he consents only to the release of certain information; he does not automatically consent to the termination of the confidential relationship existing between him and his physician.” 148 Ill. App. 3d at 591.

Dreyer’s fear that plaintiffs will learn its trial strategy and work product was also addressed in Petrillo. The court stated that at the treating physician’s deposition, plaintiff’s attorney merely “monitors” the questions and answers. (148 Ill. App. 3d at 598.) The court also stated:

“[T]he purpose of a deposition *** is to allow the interested parties *** to learn or ‘discover’ the opinion of that physician. That opinion *** is the same regardless of whether it is disclosed through a deposition or through an ex parte conference.” 148 Ill. App. 3d at 598.

The added twist in our cause is the fear that Dr. Berwick’s opinions will be taken as admissions on the part of Dreyer. However, this is not particularly relevant in deciding whether to allow ex parte communication between Dr. Berwick and Dreyer. Theoretically, Dr. Berwick’s opinions should remain consistent whether he consults with Dreyer’s counsel before a deposition. As we previously stated, Dr. Berwick may wish to retain an attorney to protect his interests at the deposition.

Further, there is case law to suggest that Dr. Berwick’s opinions given in a deposition may not be admissions binding upon Dreyer. Statements made by an officer of a corporation may be admissions binding upon the corporation if made in the exercise of the officer’s duties. (Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 181.) There is a question whether being deposed as a treating physician would be exercising a duty as an officer of the medical corporation. However, that issue is beyond the scope of this appeal.

Dreyer also argues that one-person medical corporations will be significantly affected if we hold that treating physicians who are employed by defendant-medical corporations may not speak with them ex parte concerning the confidences of the plaintiff-patient. However, we find this situation clearly distinguishable. First, if a one-person medical corporation were being sued for negligence, that particular doctor’s negligence would be the subject of the litigation. Second, it is highly unlikely that a plaintiff in that situation would sue only the corporation and not the doctor when the doctor would also be personally liable. Under section 8 of the Professional Service Corporation Act (Ill. Rev. Stat. 1991, ch. 32, par. 415—8), any officer, shareholder, agent or employee of a corporation organized under the Professional Service Corporation Act remains personally liable for negligent acts committed by them. (See also Fure v. Sherman Hospital (1977), 55 Ill. App. 3d 572, 574 (Medical Corporation Act (Ill. Rev. Stat. 1991, ch. 32, par. 644) also imposes personal liability on a physician “furnishing medical service”).) Even if the plaintiff did not sue the doctor individually, the fact that the doctor may be held personally liable would place him in the status of a defendant such that the physician-patient privilege would not apply.

We further note that Dr. Berwick is not in the same position as that of the physician in Dreyer’s hypothetical situation. Dr. Berwick was neither responsible for nor participated in the alleged negligent treatment that Judith Testin received. Under the present lawsuit, Dr. Berwick is not in danger of being held personally liable. Bis only fear of repercussion is that his shares or ownership in Dreyer may be affected. Bowever, this fact would not place him in the situation where the physician-patient privilege would be waived.

The Ritter court found that principles of agency do not abrogate the physician-patient privilege. (Ritter, 177 Ill. App. 3d at 317.) We believe that this statement is applicable to medical corporations as well. In fact, section 14 of the Medical Corporation Act states:

“This Act does not alter any law applicable to the relationship between a physician furnishing medical service and a person receiving such service ***.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 32, par. 644.)

Plaintiffs argue that physicians should not be allowed to choose a corporate form of medical practice as a means to violate a patient’s confidences. We agree. The Medical Corporation Act and the Professional Service Corporation Act were adopted to give professionals the economic advantages of incorporation, but were not meant to alter the existing statutory or common law. As such, we find that practicing under a corporate form does not affect the physician-patient privilege, and therefore, ex parte communication between the plaintiffs’ treating physician and its defendant-employer, a medical corporation, is prohibited pursuant to Petrillo.

FREEDOM OF SPEECH AND ASSOCIATION

At issue is whether the Petrillo doctrine violates the constitutional rights of freedom of speech and association. Dreyer claims that Petrillo results in a prior restraint on speech, which has a “heavy presumption of constitutional invalidity.” Dreyer also argues that prior restraint is valid only if the activity restrained constitutes a serious or imminent threat to a protected competing interest. Dreyer claims that the right to free speech is violated between Dreyer and its attorney, and between Dr. Berwick and Dreyer’s attorney.

Plaintiffs claim that this argument was raised and rejected in Petrillo. Plaintiffs argue that, pursuant to Petrillo, the compelling interests that prohibit ex parte communication in this situation are the patient’s right to privacy and the confidential and fiduciary nature of the patient-physician relationship. Plaintiffs also cite Baylaender v. Method (1992), 230 Ill. App. 3d 610, an Appellate Court, First District, case in which the treating physician’s attorney was the same as the corporation-defendant’s attorney.

We agree with plaintiffs that the rights of freedom of speech and association are not unconstitutionally restrained here, and we follow the rationale of Petrillo. The Petrillo court found that the restriction barring ex parte communication between treating physicians and defendants served two compelling State interests: the patient’s right to privacy and the confidential and fiduciary relationship between patient and physician. (Petrillo, 148 Ill. App. 3d at 607.) We concur with the Petrillo court’s balancing of interests and find that these same interests exist in our differing factual situation. A financial tie between the treating physician and the corporate defendant does not counterbalance the fundamental interests patients enjoy in the patient-physician relationship.

Further, if Dr. Berwick wishes to be represented by Dreyer’s attorney, as Dreyer suggests when stating that Dr. Berwick’s freedom of speech between him and his attorney is inhibited, we believe the Baylaender case is instructive. In Baylaender, the court noted that it would be impossible for plaintiff’s treating physician to exercise his attorney-client privilege to prevent his attorney from disclosing the patient’s confidences if the same attorney represented the treating physician and the defendant. (Baylaender, 230 Ill. App. 3d at 624.) The same scenario would occur if Dreyer’s attorney also represented Dr. Berwick. This situation prevents building a “Chinese wall” between attorneys to prevent information sharing. (Baylaender, 230 Ill. App. 3d at 624-25.) Bowever, this problem can be prevented here. Dreyer’s attorney may not represent Dr. Berwick because of the competing interests between the plaintiffs’ treating physician and counsel’s client, Dreyer. Dr. Berwick, if he wishes to be represented by counsel, must seek someone other than Dreyer’s attorney. With independent counsel, there is no fear that Dr. Berwick’s freedom of speech will be inhibited between him and his attorney.

RECONSIDERATION OF PETRILLO

Dreyer’s final contention is that Petrillo should be reexamined to determine its continued viability. Dreyer claims that there are alternatives to prohibiting ex parte communication between treating physicians and defendants that will also protect patient’s confidences. Plaintiffs’ counsel may seek a Supreme Court Rule 201(k) conference (134 Ill. 2d R. 201(k)) to resolve differences. Alternatively, plaintiffs’ attorney may seek an in camera hearing or seek protection through a motion in limine. Finally, Dreyer cites case law from other jurisdictions that it claims is contrary to Petrillo.

We will not review the plethora of out-of-State case law provided by both Dreyer and plaintiffs. This court adopted the reasoning and holding of Petrillo in Karsten v. McCray (1987), 157 Ill. App. 3d 1, 14. We were recently asked to reconsider Petrillo, and we reaffirmed the holdings in Petrillo and Karsten. (See Young v. Makar (1991), 207 Ill. App. 3d 337, 345.) Again, we reaffirm Petrillo and quote from Young:

“Ex parte communications between defense counsel and the plaintiff’s treating physicians pose an impermissible threat to the sanctity of the physician-patient relationship. That threat survives even after formal discovery has taken place. As such, to avoid undermining this relationship, such ex parte communications are prohibited.” (Young, 207 Ill. App. 3d at 345.)

Although the facts of this case are uniquely different from Petrillo and its progeny, the confidences known by Dr. Berwick are no different from those of other treating physicians. The trial court only prohibits “ex parte conferences with Paul Q. Berwick, M.D. regarding Dr. Berwick’s medical care and treatment of Judy Testin.” Dr. Berwick is not isolated from his colleagues at Dreyer, but is bound by the physician-patient privilege.

For the foregoing reasons, the orders of the circuit court of Kane County are affirmed.

Affirmed.

UNVERZAGT and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    ANDREW JOHNSON, Plaintiff-Appellee, v. ABBOTT LABORATORIES, INC., Defendant-Appellant.
    Second District
    No. 2—92—0085
    Opinion filed December 21, 1992.

      Michael J. Cummins, of Cummins & Mardoian, of Lake Forest, for appellant.
    Robert N. Goshgarian, of Goshgarian & Gibson, of Waukegan, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Andrew Johnson, filed an amended complaint in the circuit court of Lake County naming as defendant Abbott Laboratories, Inc., and alleging negligence. Following a bench trial, judgment was entered in favor of plaintiff in the amount of $389,288.95, and defendant appealed.

On appeal, defendant raises the following issues: (1) whether the trial court abused its discretion in denying defendant’s motion for leave to amend its answer to add an affirmative defense and to file a motion to dismiss based on the affirmative defense; (2) whether the verdict was against the manifest weight of the evidence; and (3) whether plaintiff was more than 50% contributorily negligent and thus barred from recovering from defendant.

Plaintiff was injured on February 19, 1990. He filed his original complaint on March 30, 1990. That complaint alleged that defendant was negligent in that it:

“a. failed to provide sufficient and adequate lighting along the route which the Plaintiff used to get to and from the garage where his truck was parked;
b. failed to provide the Plaintiff with a sidewalk or walkway from the parking lot to the garage where his truck was parked;
c. failed to illuminate the area upon which the Plaintiff was required to walk to get from the parking lot to the garage where his truck was parked; [and]
. d. failed to provide the Plaintiff with a safe means of getting from the Parking lot where he was required to park his car to the garage in which his truck was parked.”

Defendant, on May 8, 1990, filed an answer in which it denied the above allegations. It raised no affirmative defenses at that time.

Following several continuances, the cause was set for trial on December 16, 1991. On that date, plaintiff filed its amended complaint which alleged that defendant committed the following negligent acts:

“a. Failed to provide sufficient and adequate lighting along the route which the plaintiff used to get to and from the garage where his truck was parked;
b. Failed to provide the plaintiff with a sidewalk or walkway from the parking lot to the garage where his truck was parked;
c. Failed to illuminate the area upon which the plaintiff was required to walk to get from the parking lot to the garage where his truck was parked; [and]
d. Failed to provide the plaintiff with a safe means of walking from the parking lot where he parked his vehicle to the loading dock where he worked by requiring him to walk down a steep, unlit, rocky, snow-covered hill.”

Also on December 16, 1991, defendant filed an amended answer in which it denied each of the negligence allegations. For the first time, defendant also raised two affirmative defenses. The first asserted that plaintiff was a “loaned employee” and that as such he was barred by the Workers’ Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a)) from bringing a common-law tort action against defendant, the alleged “borrowing employer.” The second affirmative defense alleged that “[t]he Contributory fault on the part of the Plaintiff, Andrew Johnson, [was] more than 50% of the proximate cause of the injury or damage.” The affirmative defense further alleged that plaintiff was “barred from recovering damages.” The prayer for relief asked the court to dismiss plaintiff’s complaint. Defendant also filed a motion for leave to file a motion to dismiss on December 16 in which it sought to have plaintiff’s complaint dismissed pursuant to its workers’ compensation affirmative defense.

The trial court denied defendant’s motion for leave to file its motion to dismiss, denied its motion to file a worker’s compensation affirmative defense, and granted its motion to file its affirmative defense of contributory negligence. The written order, prepared by defense counsel, characterizes the contributory negligence defense as “more than 50% contributory negligence.”

The following additional facts were adduced at trial. Plaintiff was employed by Leaseway Corporation on the date of the occurrence. He was assigned to drive a truck from loading dock number 209 located in building AP-5 at defendant’s Abbott Park facility. He had worked out of dock 209 for about 18 years prior to the incident.

For approximately a year and a half prior to February 19, 1990, a Monday, he had arrived at work on Monday mornings between 3 and 4 a.m. As he entered Abbott Park he would first stop at a guard shack and check in. He would then drive to a parking lot adjacent to AP-5 and dock 209. He had parked in that particular lot for about seven years prior to the accident.

After parking his car in the lot, plaintiff would walk down a hillside to the turnaround pad located next to dock 209. He would then enter dock 209 through two overhead doors. Those doors would be opened by a security officer upon plaintiff’s arrival at the facility.

Sometime during late summer or early fall of 1989, rocks were placed into a sand base along a portion of the hillside separating the parking lot from the turnaround pad of dock 209. According to the plaintiff, there had been some artificial lighting in the area of the hillside but that lighting had been removed at or before the time the rocks were put in. During the winter months, it was dark between 3 and 4 a.m. when plaintiff arrived at the facility.

Plaintiff testified that he would usually walk down the incline on an angle as that was the shortest route from his car to the dock doors. He also felt this was the shortest, easiest and safest route. His route down the incline would vary from day to day because of changing weather conditions such as ice and snow. During the winter of 1989 and 1990, Abbott personnel would plow snow so that it was piled up along the curb at both the top and bottom of the incline. Plaintiff would have to climb over a snowbank at the top and also one at the bottom.

On the morning of the incident, the weather was cold, and snow was on the ground. There was a three- or four-foot high pile of snow around the curb at the top of the hillside and at the bottom. After exiting his car, he walked to the edge of the hill. Because of the snow, plaintiff could not determine where the stones or grass were located. There was no lighting illuminating the hillside other than the curb at the top which was lighted by the parking lot lights. The snow was approximately 12 or 13 inches deep on the hillside.

As he faced down the hillside, there was a snow fence that ran from his left all the way to the wall of AP-5. To his right was a clump of trees which had branches that hung down to about four feet off the ground. Further to the right of the trees was another snow fence that ran the entire length of the road which leads from the turnaround pad to the perimeter roadway. According to plaintiff, he could not have walked down the incline to his right because of the clump of trees and snow fence and could not have walked to the left because the bank was steep, there were two semitrailers parked at the bottom, and the snow fence ran to the wall of AP-5. Plaintiff admitted that he did not wave for a ride to the security officer responsible for his access into AP-5. The officer had previously given him two unsolicited rides during rainy weather.

As he walked down the incline on the morning of the incident, plaintiff was following steps previously left in the snow. After taking four or five steps down the hill, he turned his foot on either a stone or piece of ice under the snow. He felt something turn under the snow. He fell to his knee and broke his ankle. He had previously noticed loose stones in the sand. On the morning of the accident, he could not tell whether he was walking on stones or grass because he could not discern where the rocks ended and the grass began. He admitted, however, that he could tell where the stones and grass were because of the location of the snow fence, which did not run over the stones. He also stated on cross-examination that he knew he was walking on snow-covered stones. He could not tell if any of the stones were loose that morning due to the snow cover. Plaintiff admitted that he could have walked about a half mile on cleared roadway to reach the AP-5 dock without going down the incline. Testimony established this route would have taken anywhere from 5 to 15 minutes to walk.

Several witnesses testified to complaints about the incline as a point of ingress and egress between the parking lot and the turnaround pad. Plaintiff complained several times to Richard Munson, an employee of defendant, about the snow in wintertime. He also complained after the stones were installed and asked why stairs were not put in. Donald Cocal, another Leaseway driver assigned to Abbott Park, complained at the time the rocks were put in place to Larry Niemi, the supervisor in charge of dock 209, as to why a walkway was not installed.

Wilbur Painter, another Leaseway driver, complained to Richard Munson and Steve Wilson, supervisors at Abbott Park, about the installation of the rocks on the hillside. At about the same time, he also complained to Niemi that Abbott was making it difficult for the truck drivers to get down to work. Richard Munson, a dispatcher at Abbott Park during the fall of 1989 and winter of 1990, had received oral complaints from Painter and Cocal regarding how difficult it was to come down the hill and how much more difficult it would be with the rocks in place. Munson conveyed the complaints to his replacement, Wilson, as well as to Niemi. Larry Niemi denied receiving any complaints from Cocal, Munson, Wilson or plaintiff concerning access to the loading docks at AP-5. Steve Wilson also received complaints from a group of Leaseway truckers that the stones hindered their ability to get from the lot to the turnaround. Wilson agreed with the truckers and conveyed these complaints to Niemi.

Wilson added that there was no specified access to the turnaround pad. It was more difficult to get to the turnaround pad in wintertime. Wilson estimated the incline at the point plaintiff fell to be an 8- to 10-foot vertical drop.

In entering judgment in plaintiff’s favor in the amount of $389,288.25, the trial court found that defendant knew of the use by Leaseway truckers of the hillside as a point of ingress and egress. The court further found that defendant had a duty to maintain the hillside in a reasonably safe condition as a means of ingress and egress and breached that duty because of the slope, the trees, the snow fence and the nonuniform surface of grass and rocks. The court also found that the half-mile detour was not designated by defendant as a proper route and was never used as such in 16 years. Likewise, the court found the other possible alternate routes down the hillside not to have been designated as ingress and egress points and not to have been maintained in a reasonably safe manner. The court did not mention in its comments any negligence on the part of plaintiff.

Defendant’s first appellate contention is that the trial court abused its discretion in denying it leave to amend its answer on the day of trial to add the affirmative defense premised upon the Workers’ Compensation Act. Section 2—616(a) of the Civil Practice Law provides:

“At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, dismissing any party, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross claim.” Ill. Rev. Stat. 1989, ch. 110, par. 2—616(a).

A trial court has broad discretion to allow amendments and supplements to pleadings. (Healy v. Bearco Management, Inc. (1991), 216 Ill. App. 3d 945, 960.) The denial of a motion to amend will not be regarded as prejudicial error unless there has been a manifest abuse of such discretion. (Mundt v. Ragnar Benson, Inc. (1975), 61 Ill. 2d 151, 161.) Whether discretion was properly exercised is determined by such factors as whether the amendment furthers the ends of justice, the ultimate efficacy of the claim, the previous opportunities to assert the claim, the timeliness of the amendment, and whether other parties are prejudiced or surprised by the amendment. (Healy, 216 Ill. App. 3d at 960.) The courts also consider whether the amendment concerns matters known to the pleader at the time the original pleading was filed and whether good reason for not filing is offered by the pleader. Healy, 216 Ill. App. 3d at 960.

In applying the various factors to this case, we hold the trial court did not abuse its discretion in denying defendant leave to file its affirmative defense. The defense was premised on the theory that plaintiff was a loaned servant and therefore his exclusive remedy was pursuant to the Workers’ Compensation Act. The lawsuit was filed more than a year and a half before trial commenced. There is no apparent reason, and defendant suggests none, why defendant could not have presented this defense earlier in the litigation. It would seem that defendant would have had ready access to much of the information surrounding its relationship to plaintiff’s employer and plaintiff’s relationship to defendant, vis-a-vis his employment status. Furthermore, defendant offers no reason why it did not attempt to develop this defense theory through discovery. Even if defendant did so, we fail to see a reason why defendant chose not to raise the defense until the day of the trial. There is nothing about plaintiff’s amended complaint which would explain defendant’s last-minute presentation of this defense. The defense was equally applicable to both the original complaint and the amended complaint.

There is also an element of surprise inherent in this situation. Because the issue of whether plaintiff was a loaned servant could have been introduced into the case at an earlier date, plaintiff may have been lulled into believing it would not become an issue.

We are unable to determine from an examination of the record the ultimate efficacy of defendant’s claim that plaintiff was a loaned servant. After considering all of the various factors, we conclude the trial court did not abuse its discretion in denying defendant leave to file this affirmative defense.

The next issue is whether the trial court’s verdict was against the manifest weight of the evidence. Specifically, defendant maintains that plaintiff had alternative routes available to access the turnaround pad and area of AP-5. Defendant further contends that defendant was not liable for its failure to illuminate the incline or warn of the dangerous condition as plaintiff was aware of the dangers because of his prior use of the incline.

Property owners have a duty to provide a reasonably safe means of ingress and egress from their places of business, and this duty is not abrogated by the presence of a natural accumulation of ice, snow or water. (Branson v. R & L Investment, Inc. (1990), 196 Ill. App. 3d 1088, 1092.) When a means of ingress and egress is prescribed for invitees, it is the duty of the property owner to illuminate properly, give adequate warning of, or cause to be repaired a known, dangerous condition. (Branson, 196 Ill. App. 3d at 1092; Swett v. Village of Algonquin (1988), 169 Ill. App. 3d 78, 87.) Conclusions of the court are entitled to the same weight as a jury verdict and will not be upset unless manifestly against the weight of the evidence. (Keep Productions, Inc. v. Arlington Park Towers Hotel Corp. (1977), 49 Ill. App. 3d 258, 264.) A verdict is against the manifest weight of the evidence if it is palpably erroneous and wholly unwarranted or it appears to be arbitrary, unreasonable and not based upon the evidence. Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Jepsen (1988), 172 Ill. App. 3d 662, 666.

The evidence here disclosed that plaintiff, along with other Leaseway truckers, had for several years used the hillside as a point of ingress and egress to work and that defendant was aware of that fact. The evidence further demonstrated that there was no reasonable alternate route available to plaintiff and the other Leaseway employees. The trial court obviously concluded that walking a half mile out of the way or hailing a security officer for a ride was not a reasonable alternative means of ingress and egress. We must agree that walking a half mile in the wintertime or during inclement weather is hardly a reasonable means of getting to work, particularly where the plaintiff was expected to park his vehicle a short distance from his work destination. Similarly, it is unreasonable to expect plaintiff to obtain the assistance of the security officer where there was no evidence that it was among the officer’s duties to transport Leaseway drivers between the parking lot and the dock area or that the security officer would always be available for this purpose. Any use of this latter alternative by plaintiff in the past appears to have been a purely gratuitous gesture on the part of the security officer.

In light of the fact that plaintiff had no other reasonable means to get to his work place, we believe the evidence supports a finding of liability under these circumstances. Plaintiff was essentially required to negotiate a substantial incline covered with approximately 12 inches of snow. Beneath the snow lay stones, some of which had come loose in the past. The hillside was not illuminated except at the top near the curb. Snow had been plowed three to four feet high at both the top and bottom of the hill. In light of the condition of the hillside on the morning of plaintiff’s fall, it was not against the manifest weight of the evidence for the trial court to have concluded that defendant breached its duty to maintain the hillside in a reasonably safe condition as a means of ingress and egress for the plaintiff and the other Leaseway drivers.

Defendant’s final contention is that plaintiff was more than 50% contributorily negligent and, therefore, plaintiff was barred from recovering. At the outset, we note that defendant did not raise in the trial court the issue of plaintiff’s contributory negligence in an effort to reduce plaintiff’s recovery by any level of contributory fault, but, rather, sought by way of affirmative defense to bar completely plaintiff’s claim by alleging only that plaintiff was more than 50% at fault. Because the issue of plaintiff’s contributory negligence of 50% or less was not raised in the trial court, it cannot be raised for the first time on appeal. See Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500.

Furthermore, on appeal defendant primarily argues in its brief that plaintiff’s “contributory fault constituted more than 50 percent of the proximate cause of his injury and that he should be barred from recovering damages” and that the verdict “is barred by the doctrine of contributory fault.” Defendant does mention in one sentence at the end of the argument portion of its brief that should we disagree with its contention that plaintiff was more than 50% negligent, then we should determine that plaintiff was at fault to some lesser percent and reduce his damages accordingly. Even had this issue not been waived for failure to present it to the trial court, it is waived here because there is no argument in support of such a conclusion. (See 134 Ill. 2d R. 341(e)(7).) Accordingly, we will review only the question of whether the evidence supports the trial court’s finding that plaintiff was not more than 50% contributorily negligent.

A plaintiff is guilty of contributory negligence when he fails to exercise that degree of care which a reasonably prudent person would have used for his own safety under like conditions, and which failure is the proximate cause of his injury. (Healy v. Bearco Management, Inc. (1991), 216 Ill. App. 3d 945, 955.) A finding on the issue of comparative negligence will not be set aide on review absent a determination that the verdict is against the manifest weight of the evidence. Healy, 216 Ill. App. 3d at 955.

The evidence here supports the trial court’s apparent finding that plaintiff was not more than 50% at fault. There is insufficient evidence that plaintiff, in attempting to traverse the dark, snow-covered hillside, failed to exercise reasonable care to the extent that he was more than 50% at fault for his injury. As we discussed above, he had no other reasonable alternative but to walk down the hillside if he wanted to get to work. Under these circumstances, his decision to walk down the slope does not constitute fault sufficient to bar his recovery. Nor is there sufficient evidence as to his being negligent in the manner in which he attempted to descend the slope so as to prevent his recovering under principles of comparative fault. Thus, the verdict as to plaintiff’s contributory negligence was not against the manifest weight of the evidence.

For the foregoing reasons, we affirm the judgment of the circuit court of Lake County.

Affirmed.

INGLIS, P.J., and UNVERZAGT, J., concur.


text:
    CAROLYN POTTINGER, as Guardian for Disabled Adult Ida Werner, Plaintiff-Appellee, v. ROBERT R. POTTINGER et al., Defendants-Appellants.
    Second District
    No. 2—92—0308
    Opinion filed December 23, 1992.

      Peter L. Krentz, of Plano, for appellants.
    Daniel J. Kramer, of Law Office of Daniel J. Kramer, of Yorkville, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Defendants, Robert R. Pottinger and Diane M. Pottinger, bring this timely appeal from the order of the circuit court of Kendall County awarding plaintiff, Carolyn Pottinger, as guardian for Ida Werner, a disabled adult, damages in the amount of $80,546.21.

The issues raised on appeal are: (1) whether the trial court’s ruling that a constructive fraud or fiduciary duty in fact existed between defendants and plaintiff prior to the execution of a power of attorney was against the manifest weight of the evidence; and (2) whether the trial court erred in ruling that defendants failed to rebut the presumption of overreaching by clear and convincing evidence where, through the execution of a power of attorney, a fiduciary relationship existed by operation of law.

The following relevant facts are taken from the common-law record and report of proceedings. Ida Werner, at the time of trial, was a 93-year-old disabled adult. She is the great-aunt of plaintiff, Carolyn Pottinger, and either the aunt or great-aunt of defendant, Robert (Bob) Pottinger. Diane Pottinger is Bob’s wife.

On September 19, 1974, Bob and Diane entered into an installment contract with Ida Werner for the purchase of her farm at a price of $95,200. Under the terms of the contract, Bob and Diane were obligated to make semiannual payments of $2,380 plus 5% interest until the entire balance was paid. Additionally, they assumed responsibility for the payment of the real estate taxes commencing in 1975. The parties further acknowledged that, in addition to the farm tenant house and a complete set of farm buildings, there was a second residence on the property and that Ida Werner would retain a life estate interest in that second residence.

On September 14, 1982, Ida Werner executed a power of attorney appointing Diane as her attorney in fact. The document provides, in relevant part:

“I, IDA WERNER, *** hereby appoint DIANE POTTINGER, *** my attorney, for me and in my name to ask, demand, sue for, collect, recover and receive all sums of money, debts, and to agree for the same, and to give sufficient discharges for the same for me in my name. I further authorize and direct my said Attorney to act for me in connection with the following:
1. To deposit, draw and endorse checks or drafts upon any and all bank accounts or deposits belonging to me.”

At trial, Carolyn testified that early in 1989 Ida Werner expressed her concern that she was losing checks. In March 1989, Carolyn took Ida Werner to the bank to deposit some money and get cash. During the bank visit, Ida gave Carolyn an undisclosed amount of currency and told her that she “might as well have some of this before they take it all.” When asked who “they” were, Carolyn responded that Ida was referring to Bob and Diane. During the following months, Ida occasionally mentioned to Carolyn that she was not receiving her checks or money that she should be getting and that “they [Bob and Diane] would borrow and not pay back.”

By July 1989 Ida had become increasingly upset and expressed her wish to Carolyn that Diane no longer manage her financial affairs. The power of attorney designating Diane was terminated shortly thereafter, and Ida Werner subsequently appointed Carolyn as her attorney in fact and, ultimately, as her guardian.

Following her assumption of responsibility for Ida Werner’s financial affairs, Carolyn determined that Ida Werner’s total assets were approximately $90,000. She further testified that the assets showed an increasing trend until 1984 which, at that time, totaled approximately $96,000. After further analysis, Carolyn determined that approximately $29,000 of real estate taxes remained unpaid under the terms of the articles of agreement entered into in 1974 between defendants and Ida Werner and that defendants owed $42,000 in unpaid principal and interest. Carolyn testified that her calculations were based upon 10 unpaid principal payments totalling $23,000 and two years of unpaid interest at the rate of 5%. She further testified that approximately $25,000 of checks and withdrawals from Ida Werner’s money market were written to, or for the benefit of, Bob and Diane during the period which Diane held the power of attorney.

On cross-examination, Carolyn stated that Ida Werner had given her $300 during their visit to the bank in March 1989 and that she had received additional checks from her in 1979, 1985 and 1986. Carolyn stated that she considered the checks as gifts; and, on redirect examination, she further stated that the checks were not issued to her while she was acting in a fiduciary capacity relative to Ida Werner.

Bob Pottinger, called as an adverse witness in plaintiff’s case in chief, testified that the farm property real estate taxes from 1974 to 1984 were paid out of Ida Werner’s account and that subsequent to 1984 he and Diane paid them. Bob also identified a group of receipts which were notated to evidence various principal and interest payments on the farm property. He testified that between 1982 and the last time he saw Ida, he and Diane would have Ida sign receipts evidencing principal and interest payments. Bob admitted that there were occasions where Ida would provide a receipt even though she received no payment from either Bob or Diane. Bob explained, however, that he and Diane would explain the receipts to Ida prior to her signing them and that he considered the receipts to be in the nature of a gift of forgiveness of the debt. Bob further stated that he did not take Ida to an attorney for independent advice concerning the receipts.

Bob further testified that approximately one week prior to the termination of the power of attorney he noticed a change in Ida Werner’s mental condition. According to Bob, Ida Werner had begun accusing Diane of stealing her money, and in response to her accusations, Bob would go to Ida Werner’s house and find her purse for her.

Bob also identified a cashier’s check dated June 8, 1989, in the amount of $5,000 designating himself as the payee. Bob admitted that the source of the funds was Ida Werner’s money market account and that he and Diane used the money, at least in part, to pay their personal bills. On cross-examination, Bob stated that the $5,000 was a gift from his aunt. He further testified that neither he nor his wife advised Ida Werner to seek independent advice about the money market transaction.

Additionally, Bob identified a group exhibit containing 18 checks in various amounts drawn on Ida Werner’s checking account at the Yorkville National Bank from September 1983 until October 1987. The payee in each instance, with the exception of one check, was either Bob or Diane Pottinger, and the total amount of the checks equalled $13,503.11. Six of the checks were signed “Mrs. Ida Werner” or “Ida Werner.” The remaining 12 checks were signed “Diane Pottinger p.o.a.” Bob admitted that the entire group of checks was written for “payment of taxes and the like” and that he at no time, prior to or during the time the checks were written, advised Ida Werner to seek the advice of an attorney or accountant to determine if “making those gifts” were in Ida Werner’s best interest.

Bob further testified about additional dealings with Ida Werner. In 1985, Bob and Diane decided to build a new home on the farm property. In order to obtain financing, however, the lender required that Bob and Diane hold title to the farm property. Admitted into evidence was a group exhibit containing a warranty deed, junior mortgage and subordination agreement. The warranty deed, dated October 2, 1985, conveyed title to the farm property described in the articles of agreement to Bob and Diane as joint tenants. The junior mortgage, dated November 8, 1985, purported to secure the payment of a promissory note executed in favor of Ida Werner in the principal amount of $42,840. There is no indication in the record as to how the principal amount was determined. The mortgage document also reserved to Ida Werner a life estate in the residence located on the property.

As a further condition of obtaining the financing, the lender also required that Ida Werner subordinate her life interest in the second residence to the bank’s senior interest in the farm property. Bob testified that he brought a copy of the subordination agreement to Ida Werner. After he explained to her “what was required,” Bob stated that Ida Werner had no objection to the agreement. Bob was unable to recall whether he explained to Ida Werner that should he or Diane default on their home loan, she would lose her life estate interest in the second residence.

In defendants’ case in chief, Bob Pottinger testified that Ida Werner initiated the sale of the farm property to Bob and Diane in 1974. He admitted that he and Diane did not initially pay the real estate taxes as called for in the articles of agreement, but Ida Werner volunteered to pay the tax bills.

On cross-examination, Bob admitted that up until the execution of the power of attorney in 1982, Ida was not inclined to give large sums of money to either Bob or Diane, and prior to that time the only gifts of money were relatively small amounts.

On redirect examination, Bob identified several checks in various amounts drawn on Bob and Diane’s joint checking account and designating Ida Werner as the payee. With the exception of a single check, the checks all predate the execution of the power of attorney. Bob was unable to recall the reason for writing the checks to Ida Werner. He assumed, however, that it was for money that he and Diane had borrowed in the past. The parties subsequently stipulated that a payment of $3,000, as evidenced by the one check written after the power of attorney execution date, was deposited in Ida Werner’s account.

Diane Pottinger testified that during the first years of the power of attorney Ida Werner ordinarily continued to write her own checks. Eventually, after a year or so, Diane began writing checks for Ida Werner. Diane testified that she balanced Ida Werner’s checking account, but she never provided any investment advice. She stated that investment decisions remained with Ida Werner.

Diane also identified copies of the receipts reflecting principal and interest payments. She testified that some of the receipts were for principal and interest payments that were not paid. Diane stated, however, that it was Ida Werner’s idea to issue the receipts notwithstanding the nonpayment and that Ida Werner told her: “I don’t need the money, but write out a — write so I can sign it because some day when I’m not here, the people that don’t have time for me now will be here when I'm gone fighting over the money.” Diane further testified that she believed that Ida Werner had sufficient assets to maintain herself.

Diane also recounted the events surrounding the $5,000 money market withdrawal. Diane stated that Ida Werner received her money market statement reflecting an approximate balance of $11,000 and that Ida Werner had told Diane that she did not want the money. Diane testified that she advised Ida Werner to leave the money in her account. Ida Werner, however, persisted with her requests for Diane to take her to the bank. Although Diane initially refused Ida Werner’s offer to give her the entire balance in the money market account, she ultimately agreed to take $5,000. Diane also stated that Ida Werner signed all of the documents pertaining to the money market withdrawal and that, in her opinion, Ida Werner was fully aware of the nature of the transaction.

Diane also testified that during the period from 1974, and more specifically after she and Bob moved next door to Ida Werner in 1985, she cleaned Ida Werner’s house, washed the floors, did the laundry, brought her meals and, on occasion, took her to the bank. Diane also stated that Bob would take Ida Werner grocery shopping and perform maintenance work around her house. Finally, Diane testified that she never took any money from Ida Werner without being directed to; that she never betrayed any confidence; and that Ida Werner always had access to independent legal counsel.

On August 21, 1990, plaintiff, Carolyn Pottinger, as guardian for Ida Werner, filed a two-count complaint against defendants. Count I was entitled “Constructive Trust” and count II was entitled “Breach of Fiduciary Duty.” The complaint sought the following relief: (1) an order declaring subordination agreements executed by Ida Werner void; (2) an accounting for funds due Ida Werner under the terms of the 1974 articles of agreement for deed entered into between Ida Werner and defendants; (3) a demand that defendants pay any delinquent sums of principal and interest still owing under the articles of agreement; (4) an accounting of Ida Werner’s checking and money market accounts to determine those sums used by defendants and for a return of those amounts; and (5) an order enjoining defendants’ access to Ida Werner’s funds without prior court approval.

Following a bench trial, the circuit court ruled in favor of plaintiff. In its opinion letter, dated July 5, 1991, the trial court determined that the evidence presented left no doubt “that a fiduciary relationship existed between defendants and Ida Werner.” The court further concluded that plaintiff had met her burden under the law to raise the presumption of constructive fraud and breach of fiduciary duty. Therefore, the trial court continued, the burden shifted to defendants to rebut the presumption by clear and convincing proof, which defendants failed to do. Accordingly, the trial court found that the evidence was sufficient to establish a constructive trust and instructed the parties to prepare an order reflecting the following relief: (1) voiding of the subordination agreement; (2) requiring defendants to pay to Ida Werner all unpaid principal and interest sums and real estate taxes with interest at 5%; (3) repayment to Ida Werner of all cash transfers previously made to defendants; and (4) costs.

Following the issuance of the trial court’s opinion letter, a dispute ensued as to the amount of money Ida Werner was entitled to receive. Defendants subsequently filed a “motion to reconsider or modify judgment, and [sic] alternatively, motion for a new trial.” Following a series of continuances, the trial court, on February 14, 1992, entered its order disposing of defendants’ motion for reconsideration and fixing the money award. The trial court’s order states, in part:

“IT IS HEREBY ORDERED that Judgment is entered in favor of the plaintiff, CAROLYN POTTINGER as Guardian for the Disabled Adult, IDA WERNER and against ROBERT R. POTTINGER and DIANE M. POTTINGER in the sum of $80,546.21, said sum being calculated as follows:
1) Real Estate installment contract payments $33,195.06
2) Real Estate taxes $28,848.04
3) Transfers from account of IDA WERNER $18,503.11
Total: $80,546.21”

As a preliminary matter, it is necessary to consider the parties’ characterization of the remedy applied by the trial court. In their briefs, both parties characterize the relief granted as the imposition of a constructive trust. A constructive trust is generally imposed in two situations: (1) where actual or constructive fraud is considered as equitable grounds for raising the trust; and (2) where a fiduciary duty exists and there is a subsequent breach of that duty. (Suttles v. Vogel (1988), 126 Ill. 2d 186, 193.) It is a restitutionary remedy designed to restore to a plaintiff property of which he has been unjustly deprived and to take from the defendant property which, if retained, would unjustly enrich him. (Ray v. Winter (1976), 39 Ill. App. 3d 567, 576.) It is created when a court declares the party in possession of wrongfully acquired property as the constructive trustee of that property because it would be inequitable for that party to retain possession of the property. (Suttles, 126 Ill. 2d at 193.) The sole duty of the constructive trustee is to transfer title and possession of the wrongfully acquired property to the beneficiary. Suttles, 126 Ill. 2d at 193.

Although we recognize that a successful breach of fiduciary duty claim may give rise to the imposition of a constructive trust, the trial court’s order does not restore title or possession of wrongfully acquired property to plaintiff. While the trial court’s opinion letter stated that it found the evidence sufficient to establish a constructive trust, we interpret the final order entered on February 14, 1992, as being an award of damages. Additionally, although plaintiff has labeled count I of her complaint as constructive trust, the prayer for relief, relating to both counts, seeks an accounting, injunctive relief and damages. It does not purport to seek the restoration of property to plaintiff, nor does it identify property upon which to impose the trust. Therefore, we will analyze the parties’ appellate contentions in the context of whether the evidence supported an award of damages as opposed to the imposition of a constructive trust.

Additionally, we note that the trial court, in its opinion letter, does not distinguish between the prepower of attorney time frame and the post-power of attorney time frame for purposes of reaching its conclusion that a fiduciary relationship existed between plaintiff and defendants. Instead, the trial court appears to view the time frame of 1974 to 1989 in its entirety. The language of the opinion letter makes it impossible to ascertain whether the trial court found that a fiduciary relationship “in fact” existed during the entire period from 1974 until the termination of the power of attorney, or whether a fiduciary relationship in fact existed until the execution of the power of attorney and thereafter by operation of law. For the purpose of our analysis, and to conform with the parties’ agreements, we will divide the relevant time frame into two distinct periods: (1) from 1974 until the execution of the power of attorney in 1982; and (2) from the execution of the power of attorney until its termination in 1989.

Defendants’ first contention is that the trial court’s ruling is against the manifest weight of the evidence because there were no facts pleaded nor was there any evidence in the record to support its finding that a fiduciary relationship in fact existed prior to the execution of the power of attorney to Diane Pottinger. Plaintiff responds that it was unnecessary for the trial court to find that a fiduciary relationship in fact existed prior to the execution of the power of attorney agreement because of the trial court’s conclusion that defendants’ prepower conduct was tantamount to a constructive fraud.

As a general rule, a fiduciary relationship exists by operation of the law (White v. Raines (1991), 215 Ill. App. 3d 49, 59 (power of attorney)), or it may arise depending upon the factual circumstances of a particular case (see, e.g., Metropulos v. Chicago Art Glass, Inc. (1987), 156 Ill. App. 3d 727, 736-37). Where a fiduciary relationship does not exist as a matter of law, it may nevertheless arise where trust and confidence, by reason of friendship, agency and experience, are reposed by one person in another so the latter gains influence and superiority over the former. (Kurti v. Fox Valley Radiologists, Ltd. (1984), 124 Ill. App. 3d 933, 938.) In determining whether a confidential relationship exists, the factors to be considered are: the degree of kinship of the parties; the disparity in age, health, and mental condition; education and business experience between the parties; and the extent to which the allegedly subservient party entrusted the handling of her business affairs to the other and reposed faith and confidence in him. (Hensler v. Busey Bank (1992), 231 Ill. App. 3d 920, 927; Melko v. Dionisio (1991), 219 Ill. App. 3d 1048, 1061.) The burden of pleading and proving the existence of a fiduciary relationship lies with the party seeking relief, and, where the alleged relationship does not exist as a matter of law, facts from which a fiduciary relationship arises must be pleaded and proved by clear and convincing evidence. (Hensler, 231 Ill. App. 3d at 928.) The findings of the trial court, however, will not be disturbed unless they are against the manifest weight of the evidence. Metropulos v. Chicago Art Glass, Inc. (1987), 156 Ill. App. 3d 727, 737.

An examination of the record reveals that there are no allegations of a fiduciary relationship existing prior to the execution of the power of attorney. Furthermore, the record is devoid of any evidence to support a finding that Ida Werner reposed such faith and confidence in defendants to the extent that she entrusted the handling of her business affairs to them during the prepower of attorney period. The only evidence pertaining to this question is Diane’s testimony that she performed household chores for Ida Werner and that Bob would perform maintenance at her house; the existence of the articles of agreement; and Bob’s reference, in his testimony, to Ida Werner as his aunt. The existence of a blood relationship (Perry v. Wyeth (1962), 25 Ill. 2d 250, 253; Hubbard v. Schumaker (1980), 82 Ill. App. 3d 476, 479) or friendship does not of itself establish a fiduciary relationship; nor does one person’s assistance of another in business affairs. (Kurti, 124 Ill. App. 3d at 938.) Furthermore, we do not consider the existence of a contractual relationship between defendants and Ida Werner, without more, to support a finding that a fiduciary relationship in fact existed.

Additionally, the record reveals no allegations of constructive fraud, and there is no evidence, relative to the prepower of attorney time period, to raise the issue. Constructive fraud is defined as any act, statement or omission which amounts to positive fraud or which is construed as a fraud by the courts because of its detrimental effect upon public interests and public or private confidence. (See Sale v. Allstate Insurance Co. (1984), 126 Ill. App. 3d 905, 922.) It requires neither actual dishonesty nor intent to deceive, being a breach of legal or equitable duty which, irrespective of the moral guilt of the wrongdoer, the law declares fraudulent because of its tendency to deceive others. (Sale, 126 Ill. App. 3d at 922; In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 568; Obermaier v. Obermaier (1984), 128 Ill. App. 3d 602, 607.) Our review of the testimony and exhibits reveals no evidence of acts, statements or omissions made by defendants to Ida which amounted to a positive fraud, nor is there any evidence of a breach of a public or personal confidence. We conclude, therefore, that the trial court’s ruling that a constructive fraud or fiduciary relationship in fact existed prior to the execution of the power of attorney is against the manifest weight of the evidence.

Defendants next contend that the trial court erred in ruling that they failed to rebut the presumption of overreaching by clear and convincing evidence where a fiduciary relationship existed by operation of law. In their brief, defendants concede that a fiduciary relationship existed between themselves and Ida Werner upon the execution of the power of attorney.

A power of attorney gives rise to a general fiduciary relationship between the grantor and the grantee as a matter of law. (White v. Raines (1991), 215 Ill. App. 3d 49, 59.) Once a fiduciary relationship is established, the presumption is that a transaction between the dominant and servient parties which profits the dominant party is fraudulent. (White, 215 Ill. App. 3d at 59.) The dominant party then has the burden of proving by clear and convincing evidence that the transaction was fair and equitable and did not result from undue influence over the servient party. White, 215 Ill. App. 3d at 59.

Defendants argue that Ida Werner’s continued payment of the farm property real estate taxes during the first three years of the power of attorney established a course of conduct whereby she assumed responsibility for payment of the farm property real estate taxes; that it was Ida Werner’s idea to execute the receipts evidencing principal and interest payments, although they were not actually paid by defendants; and that Ida Werner, up until September 1, 1986, was competent thus supporting defendants’ conclusion that the amounts received prior to that date were valid inter vivos gifts.

After reviewing the entire record, we conclude that the trial court’s determination, with respect to transactions subsequent to the execution of the power of attorney, was not against the manifest weight of the evidence. The evidence presented by defendants falls short of the quantum of proof necessary to rebut the presumption of undue influence. First, the fact that Ida Werner covered the defendants’ unpaid tax payments does not necessarily suggest that she assumed responsibility for them. Defendants’ argument apparently fails to recognize that Ida still held title to the farm property during the period she continued to make the payments. It is entirely conceivable, therefore, that she continued to make the payments to avoid a tax default and possible foreclosure.

Second, the only testimony offered in support of defendants’ argument that it was Ida Werner’s idea to execute the receipts, although the payments for principal and interest were not forthcoming, is that of the defendants themselves. The trial court was not required to accept this version as overcoming the presumption of undue influence. In a bench trial, the trial judge, as the trier of fact, is in a superior position to determine the credibility of the witnesses and the weight to be given their testimony, and this court will not substitute its judgment unless an opposite conclusion is clearly evident. Aetna Insurance Co. v. Amelio Brothers Meat Co. (1989), 182 Ill. App. 3d 863, 865.

Finally, the mere fact that Ida Werner remained legally competent until 1986, thus supporting the conclusion that the transactions with defendants were gifts, also falls short of what is necessary to rebut the presumption of fraudulence. When a gift is made by one person to another who owes a fiduciary duty to the donor, that gift is presumptively fraudulent, and such presumption can be overcome only by clear and convincing evidence. (In re Estate of Martin (1990), 201 Ill. App. 3d 1061, 1064.) The mere fact that Ida Werner remained competent until 1986 does not, in our opinion, provide clear and convincing evidence sufficient to rebut the presumption of fraud. Moreover, after reviewing the entire record, we are unable to discern any additional support sufficient to reach the conclusion that defendants rebutted the presumption. We conclude, therefore, that the trial court’s ruling that defendants failed to rebut the presumption of fraud or undue influence subsequent to the execution of the power of attorney is not against the manifest weight of the evidence, and, accordingly, we affirm its order to that extent.

As a consequence of our holding, it is necessary to determine whether to remand this cause for a determination of damages, or whether a sufficient basis exists in the record to adjust the circuit court’s award. After reviewing the record, we conclude that the award of $18,503 for transfers from the accounts of Ida Werner is supported by the testimony and exhibits; however, we are unable to determine precisely from the record the amount of unpaid real estate taxes and principal and interest payments allocable to the time period subsequent to the execution of the power of attorney. Accordingly, we must remand this cause for the trial court to determine these amounts. When so determined, these amounts are to be awarded in addition to the amount of $18,503 for transfers from Ida Werner’s accounts.

For the foregoing reasons, the order of the circuit court of Kendall County is reversed in part and affirmed in part, and this cause is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

INGLIS, P.J., and UNVERZAGT, J., concur.


author: JUSTICE UNVERZAGT

text:
    CHICAGO TITLE AND TRUST COMPANY, as Trustee, Plaintiff-Appellant, v. JOHN WEISS et al., Defendants-Appellees.
    Second District
    No. 2—92—0185
    Opinion filed December 21, 1992.

      Richard E. Steck, of Steck & Spataro, of Chicago, for appellant.
    Ronald L. Berns, of Solano & Berns, Ltd., of Wheaton, for appellee Robin Hill Development Company I.
    Anthony E Mannina, of Wheaton, for appellee John Weiss.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, Chicago Title & Trust Company, as trustee of a land trust for the benefit of Donald Derrico, appeals the judgment of the circuit court of Kane County which dismissed its two-count complaint against defendants, Robin Hill Development Company I (Robin Hill) and John Weiss. Plaintiff raises on appeal the issues whether the trial court erred in dismissing the complaint because plaintiff lacked standing to bring suit and because it sought an injunction for continuing trespasses, and whether count II failed to state a cause of action.

Plaintiff alleged that it purchased a lot in Royal Fox, a planned unit development (PUD). Robin Hill and the trustee of the land trust which owned the PUD real estate entered into a “Declaration of Covenants, Conditions and Restrictions” (Declaration) for the Royal Fox Community Association I or II (Association). Weiss purchased the lot adjoining plaintiff’s lot. In count I, plaintiff alleged that defendants violated the Declaration when Weiss put in a driveway less than eight feet from the lot line. Plaintiff further alleged that Robin Hill failed to enforce the covenants for the benefit of plaintiff. Plaintiff requested an injunction requiring Weiss to maintain the driveway at least eight feet from the lot line and damages and attorney fees. In count II, plaintiff alleged that Weiss had erected a basketball hoop on the driveway and that Weiss repeatedly trespassed on plaintiff’s property to retrieve the basketball. Plaintiff alleged that these trespasses constituted a nuisance in violation of the Declaration. Plaintiff sought to enjoin Weiss from maintaining the basketball hoop on the driveway and from trespassing onto plaintiff’s property.

Robin Hill filed a motion to dismiss pursuant to section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2—619). Robin Hill asserted that under the Declaration it had the sole right to enforce the covenants until it turned control of the PUD over to the Association. As a result, Robin Hill concluded that plaintiff lacked standing to bring this action. In addition, Robin Hill argued that it waived the eight-foot setback restriction for Weiss’ driveway. Robin Hill attached to its motion the affidavit of its secretary/treasurer, Vincent Solano. In his affidavit, Solano stated that Robin Hill continued to exercise its control over the Association and no event occurred requiring Robin Hill to relinquish its control. Solano further averred that Robin Hill approved Weiss’ plan which depicted the edge of his driveway four feet from the lot line, and Robin Hill has refused plaintiff’s requests that Robin Hill require Weiss to relocate the driveway or to remove or relocate the basketball hoop. In addition, Solano stated that Weiss began construction on his home in February 1989 and completed it in October 1989. The basketball hoop had been in place since April or May 1991.

Weiss also filed a motion to dismiss count I pursuant to section 2—619 and count II pursuant to both section 2—619 and section 2—615 (Ill. Rev. Stat. 1991, ch. 110, par. 2—615). In addition to the bases asserted in Robin Hill’s motion, Weiss alleged that plaintiff’s action for trespass in count II was an action in law and, therefore, was not properly before a court of equity. Weiss further asserted that plaintiff failed to allege any facts to support the allegation of an irreparable injury.

Plaintiff submitted the affidavit of Donald Derrico, in which he stated that basketballs frequently fly onto plaintiff’s property and people playing basketball on Weiss’ driveway often retrieve those basketballs. As a result, Derrico’s flowers, garden, lawn and shrubs have been damaged. In addition, Derrico feared that his young child, other family members, or guests might be injured by the errant basketballs.

On January 8, 1992, the trial court ruled, as a matter of law, that plaintiff did not have standing to bring an action under count I of the complaint. The court dismissed count II without prejudice. Defendants each filed a motion for sanctions against plaintiff.

On February 5, the court, in a written order, noted that plaintiff elected to stand on count II, rather than amend it. The court denied the motions for sanctions and dismissed the cause “in its entirety.” Plaintiff timely appealed.

Before we consider the merits of this appeal, we first address defendant Weiss’ argument that this court lacks jurisdiction over this appeal because the order appealed from is not final and appealable. According to Weiss, the order did not dispose of the cause on the merits regarding all defendants. We disagree. The plain language of the order states, “this Cause is dismissed in its entirety.” Nothing is pending in the trial court. Thus, the order is final and appealable. Knox v. Keene Corp. (1991), 210 Ill. App. 3d 141, 144-45.

Plaintiff contends that the trial court erred in dismissing its complaint on the grounds that plaintiff lacked standing to bring this action and that provisions of the Declaration were waived. Plaintiff’s complaint was dismissed pursuant to section 2—619(a)(9) (Ill. Rev. Stat. 1991, ch. 110, par. 2—619(a)(9)):

A section 2—619 motion is designed to provide a summary disposition of issues of law or easily proved issues of fact. (Melko v. Dionisio (1991), 219 Ill. App. 3d 1048, 1057.) Such a motion admits all well-pleaded facts alleged in the complaint and reasonable inferences to be drawn from those facts. (Cioni v. Gearhart (1990), 201 Ill. App. 3d 853, 856.) The trial court should not dismiss a complaint pursuant to section 2—619 if material facts are controverted, and the court cannot weigh the evidence. (Melko, 219 Ill. App. 3d at 1057.) We must determine whether the affirmative matter alleged by defendants defeats plaintiff’s cause of action.

Defendants’ motions to dismiss alleged that plaintiff did not have standing to bring the suit, an affirmative matter which could defeat or negate plaintiff’s cause of action. (See Ill. Rev. Stat. 1991, ch. 110, par. 2—619(a)(9).) The movant is permitted to assert those grounds in an affidavit. (Noesges v. Servicemaster Co. (1992), 233 Ill. App. 3d 158, 162.) The affirmative matter must be more than evidence offered to refute a well-pleaded fact. (Milz v. M.J. Meadows, Inc. (1992), 234 Ill. App. 3d 281, 286.) However, where the movant submits an affidavit which controverts a well-pleaded fact in the complaint, and the plaintiff fails to file a counteraffidavit, the facts set forth in the affidavit are accepted as true. Wood v. Village of Grayslake (1992), 229 Ill. App. 3d 343, 349-50.

Plaintiff argues that a property owner in a PUD may enforce the covenants created and recorded by the developer which govern the conduct of the individual property owners. The rules of contract construction apply to PUD declarations. (See Toepper v. Brookwood Country Club Road Association (1990), 204 Ill. App. 3d 479, 487.) A court will enforce a restrictive covenant where the restriction is clear, definite, and not against public policy. (Sherwood v. Rigsby (1991), 221 Ill. App. 3d 260, 261.) The court should construe the covenants to give effect to the intent of the parties at the time they were made. (Streams Sports Club, Ltd. v. Richmond (1983), 99 Ill. 2d 182, 188; Westfield Homes, Inc. v. Herrick (1992), 229 Ill. App. 3d 445, 451.) The intent should be derived from the language of the document as a whole. Westfield Homes, 229 Ill. App. 3d at 451.

According to plaintiff, Illinois law provides that those in whose favor restrictive covenants run are prima facie entitled to enforcement. (Cordogan v. Union National Bank (1978), 64 Ill. App. 3d 248, 253.) While that may be true, we agree with defendants’ interpretation of the Declaration, which rebuts that presumption. The provision states in relevant part:

“Enforcement. Failure of an Owner to comply with such Covenants, Conditions and Restrictions or rules and regulations in connection therewith shall be grounds for immediate action which may include, without limitation, an action to recover sums due for damages, injunctive relief or any combination thereof. *** Beneficiary, and after control of the Association has passed from Beneficiary to the other Owners, then the Association and any Owner or any of them, shall have the right to enforce this Declaration by proceeding at law or in equity.”

The parties agree that Robin Hill is the beneficiary. We interpret this language to mean that only Robin Hill has the right to enforce the covenants prior to its relinquishment of control over the Association.

However, this interpretation does not deprive plaintiff of standing to sue Robin Hill. Standing to bring suit means that the plaintiff suffered an injury to a legally protected interest. (Briarcliffe West Townhouse Owners Association v. Wiseman Construction Co. (1983), 118 Ill. App. 3d 163, 167-68, appeal after remand (1985), 134 Ill. App. 3d 402.) Plaintiff argues that Robin Hill owed a fiduciary duty to plaintiff to enforce the covenants for plaintiff. (See Kelley v. Astor Investors, Inc. (1985), 106 Ill. 2d 505, 510.) In addition, plaintiff maintains that it alleged that it was a third-party beneficiary of the contract. A third-party beneficiary may sue for breach of a contract that was made for his benefit. (White Hen Pantry, Inc. v. Rak Woo Cha (1991), 214 Ill. App. 3d 627, 635.) The contract must clearly show that it was made for the party’s direct benefit. (White Hen Pantry, 214 Ill. App. 3d at 635-36.) Courts will enforce a restrictive covenant in which the developer reserves the right to consent to building plans, but the exercise of the power of review must be reasonable and not arbitrary. (Westfield Homes, 229 Ill. App. 3d at 451.) The purpose of PUD agreements is:

“ ‘[T]o afford mutual protection to the property owners living in the development against injury, whether taking the form of diminished property values or otherwise, that would result from the construction of a residence or other improvement that was unsightly, in singularly bad taste, discordantly at variance with neighboring homes in architectural appearance, or otherwise offensive to the proposed or developed standards of the neighborhood.’ ” (Westfield Homes, 229 Ill. App. 3d at 452, quoting Syrian Antiochian Orthodox Archdiocese v. Palisades Associates (1970), 110 N.J. Super. 34, 40, 264 A.2d 257, 261.)

We agree with plaintiff that, under the Declaration, Robin Hill had a duty to plaintiff, because the Declaration was enacted expressly for plaintiff’s benefit. As in Briarcliffe, plaintiff here alleged an immediate, direct and substantial injury resulting from Robin Hill’s refusal to enforce the covenants enacted for plaintiff’s benefit. (See Briarcliffe, 118 Ill. App. 3d at 169.) Although the complaint may have been drafted inartfully, it alleged sufficient facts to support a cause of action against Robin Hill for breaching its contractual duty.

We reject Robin Hill’s argument that it did not breach any duty to plaintiff because Robin Hill had the right to waive compliance with any covenant or condition. Robin Hill refers to Solano’s affidavit, which averred that Robin Hill approved Weiss’ plan which depicted the driveway as four feet from the lot line. Robin Hill asserts that it had the sole right of approval for such deviation. We disagree. Article XI of the Declaration states:

“Declarant reserves the right to enter into agreements with the proposed grantee of any Dwelling Lot or Dwelling Lots (without the consent of any Owners of other Dwelling Lots) to deviate from any or all of the Covenants, Conditions and Restrictions set forth in this Declaration provided there are practical difficulties or particular hardships evidenced by such proposed grantee, and any such deviation (which shall be manifested by an agreement in writing) shall not constitute a waiver of any such Covenants, Conditions and Restrictions as to the remaining Property which is subject to this Declaration.” (Emphasis added.)

Contrary to defendants’ assertions, according to the preamble of the Declaration, the “Declarant” is Chicago Title & Trust Company, as trustee of trust No. 9717. Thus, only the trustee had the power to enter into an agreement for a deviation. There is no evidence that the trustee ever agreed to Weiss’ deviation in writing. Moreover, questions of fact exist regarding whether Weiss’ deviation was required to avoid practical difficulties or particular hardships. We conclude that the court erred in dismissing count I against Robin Hill as a matter of law. However, we agree with the dismissal of count I as against Weiss.

Plaintiff next argues that the trial court erred in dismissing count II of the complaint. Plaintiff notes that count II requested injunctive relief from repeated trespasses onto its property by defendant Weiss. A trespass is the entry onto another’s land without permission, invitation, or other right. (Hendle v. Stevens (1992), 224 Ill. App. 3d 1046, 1055.) “If a trespass is continuing, any person in possession of the land at any time during its continuance may maintain an action for trespass.” (Rosenthal v. City of Crystal Lake (1988), 171 Ill. App. 3d 428, 435-36.) Thus, as the possessor of property, plaintiff has standing to maintain an action for trespass.

Weiss argues, without citation to authority, that an action for trespass is an action at law and not properly before a court of equity. The failure to cite authority to support legal arguments violates Supreme Court Rule 341(e)(7) (134 Ill. 2d Rules 341(e)(7), (f)) and results in waiver of the argument. (Fitzpatrick v. A C F Properties Group, Inc. (1992), 231 Ill. App. 3d 690, 708.) Weiss’ citations, where they exist, violate Supreme Court Rule 341(d) because they fail to give the cite to the official reporter. (134 Ill. 2d R. 341(d).) The rules of appellate procedure are not merely suggestions. (Ryan v. Katz (1992), 234 Ill. App. 3d 536, 537.) While we need not consider any of Weiss’ arguments, we note that his first assertion is incorrect. As our supreme court explained, “[a] court of equity will interfere to enjoin a trespass only where the complainant has no adequate remedy at law or where *** repeated trespasses are threatened of such a character that the amounts recoverable as damages in actions at law would be so small and disproportionate to the vexation and expense of the actions as to render the remedy at law inadequate.” (Abel v. Flesher (1921), 296 Ill. 604, 609.) Plaintiff’s allegations fit this exception. Moreover, equity and law have been merged in our court system, and circuit courts have jurisdiction of all justiciable matters. (Siegel v. Levy Organization Development Co. (1991), 219 Ill. App. 3d 579, 584, appeal allowed (1992), 143 Ill. 2d 648.) The only limitation on equitable relief is whether the plaintiff has an adequate remedy at law. Sjogren v. Maybrooks, Inc. (1991), 214 Ill. App. 3d 888, 892.

Finally, we consider whether the trial court erred in dismissing count II for failure to state a cause of action. (See Ill. Rev. Stat. 1991, ch. 110, par. 2—615.) A motion to dismiss admits all well-pleaded facts alleged in the complaint and reasonable inferences to be drawn from those facts. (Cioni v. Gearhart (1990), 201 Ill. App. 3d 853, 856.) We must determine whether the allegations of the complaint, when considered in the light most favorable to plaintiff, set forth a cause of action on which relief may be granted. Munizza v. City of Chicago (1991), 222 Ill. App. 3d 50, 52.

Plaintiff alleged that the basketball hoop’s placement on the lot line caused repeated trespasses onto plaintiff’s property by persons retrieving balls from Weiss’ driveway and from the basketball itself. Plaintiff further alleged that these trespasses caused damage to the garden, lawn, trees and shrubs and resulted in the diminution of the property value and prevented Derrico from enjoying the full use and benefit of the property. Plaintiff also alleged that it had no adequate remedy at law because of the continuing trespasses. It is evident from the complaint that these trespasses caused minimal property damage. In addition, the Declaration shows that plaintiff cannot erect a fence to prevent these trespasses.

A permanent injunction is appropriate relief when the plaintiff has shown that it is suffering an irreparable, continuing harm, and there is no adequate remedy at law. (Gleicher, Friberg & Associates v. University of Health Sciences (1991), 224 Ill. App. 3d 77, 88.) Although the complaint is not a model of clarity and contains much extraneous information and superfluous allegations, we believe that count II is sufficient to support a claim for equitable relief from repeated trespasses. (See Abel, 296 Ill. at 609.) Consequently, even if Weiss’ arguments regarding the law of nuisance were not waived, they are irrelevant to our analysis. We conclude that the trial court erred in dismissing count II.

The judgment of the circuit court of Kane County is affirmed in part and reversed in part, and the cause is remanded.

Affirmed in part; reversed in part and remanded.

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