author: PRESIDING JUSTICE STEIGMANN JUSTICE COOK,

text:
    ILLINOIS GRAPHICS COMPANY et al, Plaintiffs-Appellants, v. IONA NICKUM, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0511
    Opinion filed February 25, 1993.
    Rehearing denied March 24, 1993.

      COOK, J., dissenting.
    Stevenson, Rusin & Friedman, Ltd., of Chicago (John A. Maciorowski, of counsel), for appellants.
    Luedtke, Hartweg & Turner, of Bloomington (Darrell L. Hartweg, of counsel), for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiffs, Illinois Graphics Company and State Farm Insurance Company, appeal from an order dismissing their complaint based upon section 19(g) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.19(g)). In their complaint, they sought recoupment of all temporary total disability (TTD) benefits paid to defendant, Iona Nickum. The circuit court concluded section 19(g) did not provide statutory authority for an employer and its insurance carrier to seek reimbursement of funds paid to an employee who was not entitled to them. Plaintiffs’ sole contention on appeal is that section 19(g) of the Act authorizes the recovery they seek.

We disagree and affirm.

The facts are not in dispute. Defendant worked for Illinois Graphics Company and filed an application for adjustment of claim with the Industrial Commission (Commission), alleging that she suffered an accidental employment-related injury. The parties stipulated that State Farm Insurance Company (State Farm) paid defendant TTD compensation totalling $7,899.95 pursuant to her claim. The arbitrator and Commission, however, ultimately determined that defendant failed to prove she suffered an accidental injury arising out of and in the course of her employment. Therefore, they denied all benefits. Defendant did not appeal the Commission’s decision.

State Farm made a demand upon defendant for all benefits it previously paid to her as TTD compensation. When defendant declined to repay the amount, plaintiffs filed this suit. Defendant moved to dismiss, contending section 19(g) of the Act did not provide statutory authority for recoupment by plaintiffs. The trial court agreed, concluding that the Act did not provide plaintiffs a remedy for recovering workers’ compensation benefits paid to an employee in the event the Commission subsequently determined that no liability existed.

Plaintiffs maintain on appeal that section 19(g) of the Act provides statutory authority by which they may seek recoupment of any sums they overpaid defendant. In relevant part, section 19(g) states the following:

“Except in the case of a claim against the State of Illinois, either party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall enter a judgment in accordance therewith. In a case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered, which judgment and costs taxed as therein provided shall, until and unless set aside, have the same effect as though duly entered in an action duly tried and determined by the court, and shall with like effect be entered and docketed.” Ill. Rev. Stat. 1991, ch. 48, par. 138.19(g).

Plaintiffs argue that because section 19(g) of the Act provides that “either party” may apply for the entry of judgment on a workers’ compensation award, an employer may seek recoupment of TTD benefits paid when a later determination is made that the employee was not entitled to benefits in the first instance. Any other interpretation, in plaintiffs’ view, would render the statutory language “either party” meaningless. We are unpersuaded.

The statute clearly contemplates that an award by the Commission must exist before any party may apply for judgment. In this case, no award was made because both the arbitrator and Commission determined defendant was not entitled to any benefits.

This construction does not render the statutory language permitting an employer to apply for entry of judgment meaningless, as plaintiffs suggest. Following the entry of an award by the Commission — with or without additional proceedings for review — parties routinely disagree on the exact amount of benefits due on the Commission award, including interest, because the calculation of interest on the workers’ compensation awards is extremely complex and becomes even more so when the Commission or a court, sitting in review, modifies the amount of benefits previously awarded by the Commission or an arbitrator. See Ballard v. Industrial Comm’n (1988), 172 Ill. App. 3d 41, 526 N.E.2d 675.

When a dispute arises, the employer has an equal, if not greater, interest in having its liability finally determined because the failure to pay the precise amount of the award plus interest can result in grave financial consequences, including the imposition of substantial statutory attorney fees. For this reason, section 19(g) provides a method by which the employer can finally settle the extent of its liability to its employee.

Although plaintiffs correctly argue that they are entitled to recoupment of benefits paid to an employee who is not entitled to them, they are incorrect in their further assertion that section 19(g) of the Act provides the statutory vehicle for asserting those rights. An employer may seek such reimbursement by filing a separate suit at law if the employee refuses to pay the excess amount. Celeste v. Industrial Comm’n (1990), 205 Ill. App. 3d 423, 562 N.E.2d 1148; Liberty Mutual Insurance Co. v. Zambole (1986), 141 Ill. App. 3d 803, 491 N.E.2d 132.

A question remains concerning the proper disposition of this appeal. At oral argument, and only after questioning by the court disclosed the existence of the Celeste case (which neither party cited in its briefs), plaintiffs for the first time requested this court to remand the case to allow them to replead. Plaintiffs, however, never requested leave to replead at the trial level after defendant’s motion revealed the defect in their complaint. In addition, plaintiffs did not raise this issue in the notice of appeal nor request this relief in their brief before this court. Accordingly, we conclude that remand is inappropriate. See Johnson v. O’Neal (1991), 216 Ill. App. 3d 975, 988, 576 N.E.2d 486, 495.

The dissent argues that despite the fact that the circuit court cannot be faulted for properly rejecting plaintiffs’ proffered theory of recovery after its fatal deficiency was pointed out by defendant’s motion, the circuit court nevertheless erred in granting the motion to dismiss by failing to sua sponte divine an alternate theory by which plaintiffs might prevail. As support, the dissent cites the oft-encountered phrase that a “complaint should not be dismissed *** unless it clearly appears that no set of facts could be proved which would entitle plaintiff to relief.” (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504-05, 565 N.E.2d 654, 657.) This statement, of course, is not literally true because if it were, no motion to dismiss under section 2 — 615 of the Civil Practice Act (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615) could ever be successful no matter how egregious the deficiencies in the pleading if there were some “facts” included upon which some omniscient trier of fact might theoretically grant recovery. Thus, if the dissent is correct, virtually no personal injury complaint could ever be dismissed on defendant’s motion no matter what the defect because, at minimum, enough rudimentary “facts” would be present to support the theory that a battery had occurred.

As cited, the statement from Burdinie is not a complete or accurate description of the law. Courts have stated that a case should not be dismissed on the pleadings if the pleader desires to amend, unless it is apparent that no cause of action can be stated. Thus, a motion to dismiss must specify a complaint’s deficiencies so as to allow the party against whom the motion is directed an opportunity to cure those deficiencies by amendment. (Lee v. Conroy (1973), 13 Ill. App. 3d 694, 696, 300 N.E.2d 505, 506; Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 946-47, 338 N.E.2d 912, 915.) Accordingly, the full import of the rule in context is that a pleading should not be dismissed with prejudice if a viable cause of action could be pleaded and plaintiff requests leave to amend so as to obviate the inadequacies in the complaint as originally filed. In this case, although the defect was specifically pointed out, plaintiffs never sought leave to amend. Under these circumstances, the rule has no application.

On this basis, the dissent’s further assertion that a complaint cannot be dismissed as long as any cause of action exists, even if it is not the one intended to be asserted, must also fail. Although pleadings are to be liberally construed, plaintiffs still bear the burden of acting as advocates. A plaintiff cannot simply marshal some facts, dump them into the lap of the trial judge, and expect the court to formulate some theory upon which the plaintiff may be entitled to some relief. In the complete absence in this case of any request by plaintiffs to be given the opportunity to reformulate an otherwise defective complaint, the circuit court cannot be expected to act as their counsel. Likewise, that role should not be assumed by the appellate court where, as here, plaintiffs’ shortcomings in the circuit court were duplicated on appeal.

Having determined that the circuit court did not err in dismissing the complaint, the judgment of the McLean County circuit court is affirmed.

Affirmed.

GREEN, J., concurs.

JUSTICE COOK,

dissenting:

I respectfully dissent.

The trial court dismissed plaintiffs’ complaint because it failed to state a cause of action. This court appropriately holds that plaintiffs did have a cause of action and are entitled to recoupment of benefits paid to an employee who is not entitled to those benefits. Nevertheless, this court affirms because of the complaint’s reference to section 19(g) of the Act, a section which I agree provides no basis for recovery. The majority is not concerned the complaint said too little, but that it said too much.

It is not necessary to plead a particular legal theory in order to state a cause of action in Illinois, only that facts be pleaded which allege a cause of action. (See 3 R. Michael, Illinois Practice §24.2, at 340 (1989) (Civil Procedure Before Trial).) A motion to dismiss does not lie as long as a good cause of action is stated even if that cause of action is not the one intended to be asserted by the plaintiff. (Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 947, 338 N.E.2d 912, 916 (absolute liability pleaded where there was only liability for fraud, negligence, or bad faith); Luethi v. Yellow Cab Co. (1985), 136 Ill. App. 3d 829, 833-34, 483 N.E.2d 1058, 1061 (willful and wanton conduct pleaded but only possible cause of action one for negligent entrustment).) A complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved which would entitle plaintiff to relief. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504-05, 565 N.E.2d 654, 657; Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 473, 564 N.E.2d 1222, 1230.) If plaintiffs here proved the facts alleged in their complaint, plaintiffs would be entitled to recovery. The reference to section 19(g) should be ignored as mere surplusage. Surplusage does not provide a basis for dismissal of a complaint containing all of the factual allegations necessary to state a cause of action. Segall v. Berkson (1985), 139 Ill. App. 3d 325, 329, 487 N.E.2d 752, 755.

The trial court certainly cannot be faulted for failing to consider a theory not argued by plaintiff. Nevertheless, if this complaint had not mentioned section 19(g) of the Act, we would reverse, even if the trial court and the parties were not familiar with Celeste or Zambole. The rule that an appellant may not raise in the reviewing court an issue not presented to or considered by the trial court has been held not to apply to cases like this one, where the appellate court considers whether a complaint states a cause of action. A complaint which states facts sufficient to allege a cause of action gives some notice of its theory, regardless of whether plaintiff chose to argue that theory in the trial court. Krautstrunk v. Chicago Housing Authority (1981), 95 Ill. App. 3d 529, 534-35, 420 N.E.2d 429, 433.

I would reverse the order dismissing the complaint and remand for the case to proceed.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    NORTHERN ILLINOIS GAS COMPANY, Plaintiff-Appellee, v. MARTAM CONSTRUCTION COMPANY, Defendant-Appellant.
    Second District
    No. 2 — 92—0460
    Opinion filed February 23, 1993.
    Bruce A. Brennan, of Huber & Brennan, of Winfield, for appellant.
    Patricia M. Fennell, of Wheaton, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Martam Construction Company, appeals from a November 13, 1990, Du Page County circuit court judgment that defendant contends was entered nunc pro tunc on March 20, 1992, in favor of plaintiff, Northern Illinois Gas Company. Defendant contends that the judgment should be reversed because it was against the manifest weight of the evidence and because plaintiff failed to establish the reasonableness of the amount of the damages claimed. We dismiss the appeal for lack of jurisdiction and note that a previous appeal of the same case was also dismissed for lack of jurisdiction.

After four small claims cases were consolidated, plaintiff filed a 38-count amended complaint against defendant. The complaint alleged that defendant damaged plaintiff’s underground gas utility lines in 19 separate incidents in which defendant’s heavy equipment hit plaintiff’s lines. For each of the 19 alleged incidents, the complaint brought separate counts sounding in negligence and trespass.

In pretrial stipulations, the parties agreed that Tamas Kutravacz, a principal of defendant who had been a defendant in his individual capacity, was dismissed from the action. The parties also stipulated that all hits of plaintiff’s gas lines were made by heavy equipment operated by defendant.

The case was tried on November 13, 1990. The appeal record does not contain a verbatim transcript of the trial court proceedings. We therefore base our review upon the report of the proceedings stipulated to by the parties under Supreme Court Rule 323(c). 134 Ill. 2d R. 323(c).

The stipulated report indicates that, at the conclusion of the trial, the trial judge immediately ruled in favor of defendant on two counts; reiterated prior rulings in favor of defendant on four counts; and ruled in favor of plaintiff on 16 counts, all based on trespass. The stipulated report also indicates that the trial judge ruled in favor of defendant on all of the negligence counts, although this ruling was not specifically stated by the judge. The final paragraph of the stipulated report states that the trial judge “gave no reasons for his ruling, made no comments on the evidence, and merely instructed the attorneys to prepare an Order, and he left the bench.”

On December 12, 1990, defendant filed an appeal of the November 13, 1990, announced judgment. Defendant contended that the judgment was against the manifest weight of the evidence.

On July 24, 1991, by a Rule 23 order (134 Ill. 2d R. 23), this court dismissed defendant’s appeal for lack of jurisdiction. The Rule 23 order stated that the trial court had clearly expected a written order to be submitted for its approval, but that no written order had ever been prepared or filed. The Rule 23 order further stated that Supreme Court Rule 272 (134 Ill. 2d R. 272) provides that when a trial court requires a written order to be submitted for its approval “the judgment becomes final only when the signed judgment is filed.” Because no signed written judgment was filed, the Rule 23 order concluded that no final judgment had been entered and that the proceedings were in a temporary state of abeyance because the bare announcement of the judgment was neither appealable nor binding. Accordingly, we dismissed the appeal for lack of jurisdiction.

On March 5, 1992, plaintiff filed a motion in the circuit court to enter a final order. Attached to the motion to enter a final order was an unsigned written order formalizing the judgment announced on November 13, 1990. The order still has not been signed.

In its second appellate brief, defendant notes that “the Order included in the Record On Appeal has not been signed or dated by [the trial judge].” Defendant contends, however, that an order was entered on March 20, 1992, indicating that judgment was entered in favor of plaintiff and against defendant in the amount of $8,054.27 plus costs of the suit nunc pro tunc to November 13, 1990. Defendant also maintains that all parties are in agreement that the trial judge specifically stated on March 20, 1992, that the previously announced judgment was to be entered on that date. Finally, defendant notes that the written order which was attached to its motion to enter a final judgment appears in the official record. For these reasons, defendant contends that the judgment announced November 13, 1990, is now appealable. Thus, the question before us is whether a case previously dismissed for lack of jurisdiction because no signed written order was filed pursuant to Rule 272 becomes appealable when the trial judge subsequently makes an oral judgment that the first judgment was entered on the date it was made, or whether a signed written order is still required pursuant to Rule 272.

It is well established that only final judgments are appealable. (134 Ill. 2d R. 301; Stoermer v. Edgar (1984), 104 Ill. 2d 287, 294.) Supreme Court Rule 272 provides, in part:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by [the judge or if a circuit court rule requires the prevailing party to submit a draft order], the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed.” (134 Ill. 2d R. 272.)

Under Rule 272, when a trial judge makes an oral announcement of a judgment and specifically requests that the parties draft an order for the judge to sign, the announced judgment does not become final until the formal written judgment is entered. In re B.D. (1991), 212 Ill. App. 3d 251, 254.

The purpose of Rule 272 is to eliminate confusion as to the finality of judgments (Stoermer, 104 Ill. 2d at 294) and resolve questions of timeliness of appeals where there is an oral announcement of judgment from the bench. (Swisher v. Duffy (1987), 117 Ill. 2d 376, 378.) In the time between the announcement of the judgment and the entry of the contemplated written and signed formal order, a party may not enforce the judgment, attack the judgment by motion, or appeal from the judgment. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 441.) In such cases, the filing of a notice of appeal before the entry of the signed written order does not confer jurisdiction on an appellate court. Ferguson, 111 Ill. 2d at 441.

Here, it is undisputed that the trial judge orally announced his judgment on November 13, 1990, and requested that the parties’ attorneys draft a written order for the entry of the judgment into the record. Nothing in the record indicates that the trial judge has changed this requirement so that a signed written order is no longer required. Nor does the purported order entered on March 20, 1992, change this requirement. Thus, this case continues to fall under Rule 272 and its provision that the announced judgment will not be considered final until a signed written judgment has been filed and entered in the record.

It is also undisputed that the parties have not filed a signed written judgment. Accordingly, under Rule 272, the announced judgment has not become a final judgment and it is therefore not appealable. We cannot agree with defendant’s contention. that an unsigned order or other memorandum of judgment is sufficient to make the announced judgment appealable. Rule 272 explicitly provides that an announced judgment, where the court requests a signed written formal judgment, becomes final only when the signed written judgment is filed. There is no doubt that a judgment is not appealable unless it is a final judgment. Thus, the November 13, 1990, announced judgment is not appealable because no final judgment has been filed.

We realize this decision may appear harsh given the agreement of the parties with respect to the date and content of the judgment in question here. However, the direction of the supreme court is so clear and the purposes of Rule 272 are so important that an exception to the rule is not warranted in this case.

This case serves as an example of the difficulties which could arise if Rule 272 were not strictly observed. Defendant seeks to appeal a judgment which the court orally announced on November 13, 1990. But, the parties concede that the announced judgment was quickly rendered and omitted much detail. For example, the orally announced judgment did not completely resolve which exact counts were for which side and why. Nor did the announced judgment provide the total amount of damages or specific damage amounts for specific counts. The trial court left these details to the parties to specify in a formal written judgment. Without this written judgment the record is unclear as to these details. The fact that the parties may have agreed and stipulated to some of these details does not solve all the problems. Defendant contends that the November 13, 1990, judgment is to be entered nunc pro tunc but there is obviously nothing to that effect in the judgment itself. Without further clarification, questions as to the timeliness of appeals from the judgment may arise. To eliminate possible confusion with respect to judgments and the timeliness of related appeals, the supreme court formulated Rule 272. This case shows the reasonableness of the rule.

After the first appeal was dismissed, the parties must have known that a signed written order was required to finalize the announced judgment. The parties have not offered any reason for their failure to obtain and file a signed written order of judgment. Under Rule 272, the announced judgment has not become final. Absent a final judgment, we are without jurisdiction. Accordingly, defendant’s second appeal must also be dismissed for lack of jurisdiction.

Based on the foregoing, the appeal is dismissed.

Dismissed.

INGLIS, P.J., and BOWMAN, J., concur. delivered the opinion of the court:


author: JUSTICE QUETSCH

text:
      In re PARENTAGE OF KIMBERLY MARIE MATTSON (Giselle Slauf, Petitioner-Appellant, v. Karl Mattson, Respondent-Appellee).
    Second District
    No. 2 — 92—0246
    Opinion filed February 23, 1993.
    Richard L. Lucas and Scott T. Ferrill, both of Richard L. Lucas & Associates, Ltd., of Addison, for appellant.
    No brief filed for appellee.
   JUSTICE QUETSCH

Petitioner, Giselle Slauf, appeals the circuit court’s order denying her petition to change the name of her minor daughter from Kimberly Mattson to Kimberly Slauf. Petitioner contends on appeal that the court applied an improper standard, failed to consider the statutory factors and abused its discretion in denying the name-change petition.

Respondent, Karl Mattson, has not filed an appellee’s brief. However, the issues are not complex, and we consider the merits of the appeal pursuant to the standards of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133.

On March 9, 1990, petitioner filed a paternity action against respondent. In response, respondent admitted being Kimberly’s father and agreed to pay child support.

During the next few months, the parties filed numerous petitions and the court entered numerous orders regarding visitation, the amount of support and other matters. Petitioner also filed a petition to change Kimberly’s last name from Mattson to Slauf. On November 5, 1991, the court entered an order denying the petition. Petitioner filed a motion to reconsider. The court granted the motion, vacated the November 5 order, and set the matter for hearing. After several continuances, the court conducted the hearing on January 27, 1992.

Petitioner testified that at the time Kimberly was born petitioner and respondent were engaged to be married and respondent had given her a ring. When Kimberly was born, she was given the name Mattson in contemplation of the marriage. The parties continued to live together for about two years after Kimberly was born, at which time they broke up.

Petitioner also testified that Kimberly was in kindergarten and had been teased by her classmates on three occasions because her last name was not the same as her mother’s. One incident occurred on September 11, another occurred in October, and the third occurred at a birthday party approximately two weeks before the hearing. Petitioner stated that Kimberly was confused and upset by these incidents.

Respondent was the only other witness at the hearing. He denied he was engaged to petitioner at the time Kimberly was born or that she was given the name Mattson in contemplation of the parties’ marriage. He further testified that he has supported Kimberly since she was born. He wanted her name to remain Mattson because “that’s one of the only ties that I feel she has to me.” He felt that petitioner was encouraging her daughter to change her name as a way of alienating her from him.

At closing argument, petitioner’s attorney argued that the proper standard for determining whether to permit a party to change a minor’s name was to be found in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 602) and In re Petition of Sullivan (1985), 134 Ill. App. 3d 455.

In denying the petition, the court stated that Sullivan required that such a change be in the best interests of the child. The court stated:

“I don’t believe those standards have been met by the petitioner.
There’s no question the child will be somewhat confused, and I think it’s up to the parents to help avoid that confusion; but I don’t think what the evidence has been presented has been such to show that it would be in the best interest of the child to cause that the name be changed.”

Petitioner filed a timely notice of appeal.

Petitioner’s first contention on appeal is that the trial court applied the wrong standard in denying the name-change petition. Petitioner appears to contend that the court erred in applying section 602, notwithstanding that her counsel argued at the hearing that that was the correct standard. Normally, a party may not complain of an error which he or she has invited. (Miller v. Bloomberg (1984), 126 Ill. App. 3d 332, 336.) However, we will not engage in an extended discussion of this issue, since we would uphold the trial court’s order under either test.

Prior to 1985, no statutory criteria existed by which to determine the propriety of a request to change the name of a minor child. (See Dattilo v. Groth (1991), 222 Ill. App. 3d 467, 470-71 & n.l (Greiman, J., dissenting).) In the absence of a specific statute, courts deciding petitions for minors’ name changes have used the criteria for determining child custody found in section 602. (In re Marriage of Presson (1984), 102 Ill. 2d 303, 307.) Section 602 provided that the standard was the best interest of the child and contained a nonexclusive list of factors to be considered. Ill. Rev. Stat. 1985, ch. 40, par. 602.

It is clear that the proper standards are now found in section 21 — 101 of the Code of Civil Procedure (Ill. Ann. Stat., ch. 110, par. 21 — 101 (Smith-Hurd Supp. 1992)). While section 21 — 101 provides that the overriding consideration continues to be the best interest of the child, the most significant change from prior law is that the party seeking the change must establish by clear and convincing evidence that the change is in the child’s best interest. (Ill. Ann. Stat., ch. 110, par. 21 — 101 (Smith-Hurd Supp. 1992).) In determining the child’s best interest, the court shall consider all relevant factors, including:

“(1) The wishes of the child’s parents and any person acting as a parent who has physical custody of the child.
(2) The wishes of the child and the reasons for those wishes. ***
(3) The interaction and interrelationship of the child with his or her parents or persons acting as parents who have physical custody of the child, step-parents, siblings, step-siblings, or any other person who may significantly affect the child’s best interest.
(4) The child’s adjustment to his or her home, school, and community.” (Ill. Ann. Stat., ch. 110, par. 21 — 101 (Smith-Hurd Supp. 1992).)

We note that these are, essentially, the first four factors listed in section 602 for making child custody determinations. We find that the standards are not significantly different under section 602 or section 21 — 101, except for the burden of proof. As a result, cases decided under section 602 may still provide some guidance in determining the issue pursuant to section 21 — 101.

Petitioner also contends, however, that the court failed to consider evidence of the statutory factors before making its decision. Petitioner maintains that the trial court prejudged the matter, as reflected by its order of November 5 which denied the petition without a hearing.

The record does not support petitioner’s assertion. While the court is not required to set out specific factual findings, the record should reflect that the court considered evidence of the statutory factors before making its decision. (In re Petition of Sullivan (1985), 134 Ill. App. 3d 455, 465.) The record in this case clearly shows such consideration. The court specifically stated that it did not “believe those standards have been met.” The court further stated that it did not think petitioner had presented sufficient evidence that the child’s best interest dictated that her name be changed. The court’s statements clearly reflect that the court considered the relevant factors, but found that evidence to support the change was lacking.

Petitioner’s final contention is that, regardless of the standards to be applied, the court abused its discretion in denying the name-change petition. She maintains that she presented evidence that Kimberly has been confused and embarrassed by having a last name different from that of her mother. Evidence showed that she has been subjected to taunts from classmates and will likely continue to be subjected to embarrassment. Petitioner contends that the only basis for denying the petition was the subjective desire of respondent that her name not be changed. Thus, she concludes that the court failed to consider the child’s best interests, but only those of respondent.

Initially, we note that under section 21 — 101 a parent’s desire is a legitimate factor for the court to consider. (Ill. Ann. Stat., ch. 110, par. 21 — 101(1) (Smith-Hurd Supp. 1992).) Respondent testified that he has been and will continue to pay child support and that he desires to maintain a close relationship with his daughter. Since he does not have physical custody, the common name is one of the few bonds he is able to maintain with her. While the conflicting desires of the parents would appear to cancel each other out to some extent, the remaining evidence did not clearly and convincingly establish that a change is required or in the best interests of the child. In short, the court correctly found that petitioner failed to meet her burden of proof.

The only evidence that petitioner presented of the minor’s best interest was testimony that she had been teased by schoolmates on three occasions. In Presson, the court noted that a child whose parents had been divorced was bound to suffer some confusion and embarrassment because his name was different from his mother’s, but held that this fact alone was not sufficient to warrant changing his name. (Presson, 102 Ill. 2d at 311.) In language that is particularly appropriate to the instant case, the court stated, “[t]he noncustodial parent necessarily is at a disadvantage in maintaining a strong relationship with the child and maintenance of the parent’s name goes far toward demonstrating his continuing interest in and identity with the child.” (102 Ill. 2d at 312.) The same considerations apply to this case.

Moreover, changing Kimberly’s name will not necessarily put an end to her confusion and embarrassment. Were her name to be changed, she would be subjected to the same type of confusion when visiting with members of her father’s family. (See Presson, 102 Ill. 2d at 312.) Should her mother get married and, as is customary, adopt her husband’s surname, Kimberly would once again be in the position of having a different name from her mother. See In re Marriage of Omelson (1983), 112 Ill. App. 3d 725, 734.

In summary, while the minor would undoubtedly feel some confusion and embarrassment whether or not her name is changed, testimony of three isolated instances is insufficient to demonstrate clearly that a change is in her best interests.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    JAMES P. RICHTER, Plaintiff-Appellant, v. BURTON INVESTMENT PROPERTIES, INC., Defendant-Appellee.
    Second District
    No. 2 — 92—0159
    Opinion filed February 19, 1993.

      Herbert Hill, of Aurora, for appellant.
    Craig S. Mielke and Timothy D. O’Neil, both of Murphy, Hupp, Foote, Mielke & Kinnally, of Aurora, for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, James P. Richter, appeals the order of the circuit court which granted summary judgment in favor of defendant, Burton Investment Properties, Inc. The sole issue for review is whether the trial court erred in entering summary judgment for defendant, the landowner, when plaintiff slipped and fell in defendant’s building.

In February 1989, plaintiff, while delivering mail, slipped and fell on water in the eñtryway of a building in the Lorlynn Apartment Complex. Plaintiff filed suit and, inter alia, made the following allegations:

“That at the time and place aforesaid, Defendant provided, managed and maintained a ceramic tile covering to said foyer which it waxed, buffed and/or otherwise maintained in an excessively slippery condition and provided safety mats therein for the protection and safety of persons entering said building.
That at the time and place aforesaid, and for some time prior thereto, defendant knew or in the exercise of reasonable care, should have known of the slippery condition in which it maintained said flooring and furthermore, in the exercise of reasonable care, should have known that said flooring would become even more hazardous when wet (either from a natural or unnatural accumulation of water).
* * *
Carelessly, negligently and improperly allowed an excessively slippery condition to remain on said floor, when the Defendant knew, or in the exercise of ordinary care, should have known that the excessively slippery condition was present on the floor and presented a dangerous condition to the use of that floor by the Plaintiff and other inviteesf.]
* * *
Carelessly and negligently installed a ceramic tile flooring that was inordinately slippery and made slipperier by its waxing, washing or buffing and that created an unreasonable and unsafe condition which would be exacerbated when wet; that Defendant knew of such condition and flooring and knew it would likely cause injuries to others, including Plaintiff.”

Plaintiff further alleged that he fell because of an accumulation of oil, wax and water on the floor.

Defendant filed a motion for summary judgment in which it argued that the water on which plaintiff fell was a natural accumulation of tracked-in melted snow. According to defendant, it did not have a duty, as a matter of law, to remove the natural accumulation.

Defendant deposed plaintiff, who stated that there was snow on the steps and the landing of building No. 1005. The sidewalk had been cleared, but snow had blown back onto it. The entrance door had “fogged glass” through which plaintiff could not see. Plaintiff opened the door, stepped across the threshold, and, when his foot hit the tile floor, he slipped and fell. After plaintiff fell, he noticed moisture on the floor. Plaintiff did not see any water dripping, so he assumed that the moisture was the result of tracked-in snow which had melted. Plaintiff also discussed the condition of the ceramic tile foyer when dry:

“Q. All right.
Now, going back to the day that you fell at the apartment complex, was there any defect in the floor itself where you fell?
A. Inside?
Q. Inside.
A. Other than the fact that it was slipperier than hell, no.
Q. It was slippery because of the water?
A. The water made it twice as slippery, but the ceramic tile in the foyer is the wrong surface for the foyer. Even on a normal day the ceramic tile in there is slippery ***.”

Defendant also submitted a portion of the deposition of James Traversa, plaintiff’s supervisor. Traversa went to building No. 1005 shortly after plaintiff fell. According to Traversa, there was no mat in the foyer. He did not see any puddle on the floor, but the floor was damp, “like if you walked in weather and then walked in through down the hallway and you left water spots.” Traversa did not notice any defects in the floor or hallway.

Relying on Shoemaker v. Rush-Presbyterian-St. Luke’s Medical Center (1989), 187 Ill. App. 3d 1040, the trial court granted summary judgment for defendant. Plaintiff timely appealed.

Plaintiff contends that the trial court erred in entering summary judgment for defendant. He does not dispute that the water that was tracked on the floor was partially responsible for his fall. However, plaintiff argues that the naturally slippery condition of the tile foyer was the unsafe condition that was exacerbated by the water. As there is a genuine issue of fact concerning the naturally slippery condition of the foyer, which was made more slippery by water, plaintiff argues that summary judgment was improper.

A trial court should grant summary judgment only when the pleadings, depositions, affidavits and admissions show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005(c); Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The court should construe the evidence strictly against the movant and liberally in favor of the opponent. (Purtill, 111 Ill. 2d at 240.) A court may draw inferences from undisputed facts, and if reasonable persons could draw different inferences, an issue of fact exists. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 272.) Although a plaintiff need not prove his case at the summary judgment stage, he must present some facts to show that the accumulation of water, snow or ice was unnatural or caused by the defendant. Crane v. Triangle Plaza, Inc. (1992), 228 Ill. App. 3d 325, 332.

A property owner has the duty to provide a reasonable means of ingress and egress from its premises, “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 the landowner prescribes a means of ingress and egress, it has a duty to illuminate properly and give adequate warning of a known, dangerous condition, or it must repair the condition. Branson, 196 Ill. App. 3d at 1092.

Plaintiff relies primarily on Fanning v. LeMay (1966), 78 Ill. App. 2d 166, rev’d on other grounds (1967), 38 Ill. 2d 209. In Fanning, the plaintiff fell on the wet asphalt tile in the defendants’ laundromat. The plaintiff alleged that the defendants were negligent in failing to furnish a mat for customers to wipe their, shoes and in failing to warn the plaintiff that the floor was slippery when wet. The trial court dismissed the complaint with prejudice. The appellate court determined that the plaintiff’s complaint stated a cause of action for negligence because the plaintiff alleged that defendant knew, or should have known, that the asphalt tile, when wet, became very slippery and dangerous. Fanning, 78 Ill. App. 2d at 173.

Defendant argues that Fanning does not support plaintiff’s contention because Fanning concerned the sufficiency of the pleadings. In addition, defendant questions Fanning’s viability and speculates what the supreme court would have done had the landowner sought review of the negligence claim against it.

First, we decline to speculate about what the supreme court would have decided regarding the landowner’s negligence. The court was asked to rule only on the product liability counts against the manufacturer and the retailer of the plaintiff’s shoes. (Fanning v. LeMay (1967), 38 Ill. 2d 209, 210.) Nothing in the supreme court opinion indicates that the court would have reversed the appellate court’s ruling that the plaintiff’s pleading stated a cause of action against the landlord.

However, we believe that Fanning is limited by the difference in procedural posture. At the summary judgment stage, the mere allegations in the pleadings are not enough to create a material issue of fact. (See Michigan-Chestnut Limited Partnership v. Rosewell (1982), 104 Ill. App. 3d 249, 252 (the fact that an issue is stated in the pleadings does not preclude the entry of summary judgment where there is no disputed material fact, but only conclusions asserted by that party).) A plaintiff must present evidence through depositions, affidavits and admissions to support the allegations. The holding in Fan ning is that, under the pleadings, the plaintiff could prove her cause of action. Fanning, 78 Ill. 2d at 173.

Moreover, the Fanning court’s reliance on the supreme court’s opinion in Sommese v. Maling Brothers, Inc. (1966), 36 Ill. 2d 263, does not change our finding. The plaintiff there fell in the entryway of the defendant’s store. The entryway floor was terrazzo that did not have an abrasive in it, which made the floor very slippery and hazardous when wet. The jury returned a verdict in favor of the plaintiff, and the defendant appealed, arguing that the court should have directed a verdict for the defendant. The supreme court disagreed, saying:

“[I]t was a jury question as to whether the defendant knew or should have known that the material used in the composition of the floor, upon becoming wet and damp, became very slippery and dangerous ***. It is this feature of the condition of an outside terrazo [sic] floor which distinguishes this case from those cases in which recovery has been denied as a result of slipping and falling on a wet floor.” Sommese, 36 Ill. 2d at 266.

Sommese is distinguishable on a point that reaches the heart of our discussion on summary judgment. There, the plaintiff provided an expert witness who testified that a terrazzo floor, upon becoming wet, is very slippery and hazardous without an abrasive material on it. (Sommese, 36 Ill. 2d at 265.) This testimony comports with the law that liability may be imposed on the landlord if a walking surface becomes unreasonably dangerous because of the nature of its construction or the materials used to construct it. Selby v. Danville Pepsi-Cola Bottling Co. (1988), 169 Ill. App. 3d 427, 436.

Here, although plaintiff is not required to prove his case at this stage, he has the duty to present facts to support his cause of action and to avoid defendant’s motion for summary judgment. (Carter v. Dunlop (1985), 138 Ill. App. 3d 58, 69.) Plaintiff has not presented any evidentiary facts to support his allegations that defendant either installed unreasonably slippery ceramic tile or maintained it in an excessively slippery condition.

Plaintiff points us to his deposition in which he testified that the ceramic tile in the foyer was the wrong surface for the foyer and it was slippery even on a normal day. This bald conclusion is not an evidentiary fact that creates a material issue of fact concerning the construction or maintenance of the foyer. Plaintiff had to present evidence detailing why the foyer was excessively slippery. For instance, a custodian of the building could have explained how often the foyer was waxed and buffed. A building contractor could have testified whether the ceramic tile used in the building was reasonably safe or excessively slippery. Even plaintiff could have detailed the factual basis for his conclusion that the foyer was too slippery.

We believe this case is analogous factually to Branson (196 Ill. App. 3d 1088). There, a mail carrier slipped and fell on an entryway ramp to a laundromat. (Branson, 196 Ill. App. 3d at 1089-90.) Summary judgment was affirmed on appeal, in part, because the plaintiff presented no evidence that the ramp was negligently designed. (Branson, 196 Ill. App. 3d at 1092.) Here, summary judgment is proper because plaintiff has not introduced evidence to support the allegation that the entryway of the apartment building was negligently constructed.

Moreover, plaintiff misunderstood his duty to present evidentiary facts. During the hearing on defendant’s motion for summary judgment, plaintiff’s counsel stated:

“And all the case law that talks about water accumulating on the landlord’s property says that there is a basis for liability if the landlord allows that situation to become exacerbated.
That is exactly what we have plead [sic]. I do not believe that there has been any effort on behalf of the defendant to take a deposition of anyone other than the plaintiff about the condition of that floor, and I think there is a sufficient basis for it.”

Further, there is no indication from the hearing that plaintiff was going to depose anyone else about the condition of the foyer:

“We have no disclosure from the plaintiff of any experts they have retained as to say what this tile is about, and when you wax it, buff it or whatever, even if there was, why it makes it excessively slippery.”

Plaintiff failed to provide some factual basis that arguably would entitle him to judgment. (See Uehara v. Schlade (1992), 236 Ill. App. 3d 252, 259.) There was no factual basis to support his allegation that defendant either installed a ceramic tile floor that was unreasonably slippery or maintained the floor in an unreasonable manner. Thus, we hold that summary judgment was proper.

Finally, plaintiff alludes to two other allegations made in the pleading that we feel the need to address. First, plaintiff claims that defendant’s placement of mats on the foyer is evidence that it knew the floor was excessively slippery. We believe Lohan v. Walgreens Co. (1986), 140 Ill. App. 3d 171, 175, is instructive:

“Plaintiff contends that a duty to her arose from defendants’ prior voluntary undertaking to lay down additional safety mats when the floor was wet. But where the accumulation is a natural one there is no duty to continue a voluntary undertaking to remove it [citation], nor is there any liability even where the owner may be charged with knowledge that the accumulation caused a dangerous condition.”

Second, plaintiff argues that there is an issue of fact concerning defendant’s intentional refusal to remove snow and/or ice from the sidewalks, establishing defendant’s willful and wanton conduct pursuant to section 2 of the Snow and Ice Removal Act (Ill. Rev. Stat. 1989, ch. 70, par. 202). We reject this argument summarily as there were no evidentiary facts presented to support the allegation that defendant’s conduct was willful and wanton.

For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

BOWMAN and DOYLE, JJ., concur.


author: JUSTICE WOODWARD

text:
    GILBERT ROGERS et al., Plaintiffs and Counterdefendants-Appellees, v. MARY ANN BALSLEY, Defendant and Counterplaintiff-Appellant.
    Second District
    No. 2 — 92—0498
    Opinion filed February 24, 1993.

      Anthony J. Trotto, of Addison, for appellant.
    Michael E. Coppedge, of Cowlin, Ungvarsky, Curran & Coppedge, of Crystal Lake, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Mary Ann Balsley, appeals the judgment of the circuit court which ruled in favor of plaintiffs, Gilbert and Anna Rogers, on their breach of contract claim arising out of a real estate deal. Defendant raises on review the issues of whether the trial court erroneously found her liable to plaintiffs and whether the award of damages was error.

On February 24, 1989, plaintiffs, as sellers, signed a contract with Walter and Joyce Belew for the sale of their home in Crystal Lake (the Belew contract). The Belew contract was conditioned on the Belews securing a noncontingent contract for the sale of their home. On February 26, plaintiffs entered into a contingent contract with Glen Bankes to purchase a farm in Belvidere for $117,000.

On March 4, plaintiffs, as sellers, signed the contract with defendant, and defendant paid $5,000 in earnest money on the purchase price of $98,000. The contract was subject to plaintiffs securing a termination of the Belew contract on or before March 30. The mortgage contingency clause provided that the contract was subject to defendant procuring financing within 45 days after the acceptance date and the cancellation of the Belew contract. The contract provided that defendant’s financing was to be secured by a mortgage on her home in Glendale Heights. The provision further stated: “If after making every reasonable effort, Buyer is unable to procure such commitment within the time specified herein and so notifies Seller within that time, this contract shall become null and void and all earnest money shall be returned to Buyer; if Seller is not so notified, it shall be conclusively presumed that Buyer has secured such commitment or will purchase said property without mortgage financing.” (Emphasis in original.) The contract set a closing date of May 10, 1989. At the bottom of the front page were the parties’ signatures and their home addresses.

The back side of the contract consisted of 20 paragraphs of conditions. Paragraph J provided: “All notices herein required shall be in writing and shall be served on the parties at the addresses following their signatures. The mailing of a notice by registered mail, return receipt requested, shall be sufficient notice.” The final paragraph stated that the losing party “shall pay all reasonable attorney’s fees and costs incurred by the prevailing party in enforcing the terms and provisions of this contract, including forfeiture.”

On March 15, 1989, plaintiffs cancelled the Belew contract and paid the Belews $300. They notified defendant of the cancellation of the Belew contract on March 17. On April 20, defendant’s attorney sent a letter to plaintiffs’ realtor and sent a copy of the letter to plaintiffs’ attorney. The letter stated that defendant was declaring the contract null and void because she could not obtain financing. Defendant requested the return of her earnest money. On April 28, plaintiffs’ attorney sent defendant the following letter:

“Dear Mrs. Balsley:
Because of your repudiation of the Real Estate Sales Contract, Acceptance dated February 27, 1989, for the purchase of [the] property ***, I am deeming you to be in material breach of same and on behalf of my clients, Gilbert and Anna Rogers, are declaring the contract to be in forfeiture.
We will, however, allow you 24 hours after receipt of this correspondence to advise us in writing of your intention to go forward with the contract as my clients stand ready, willing and able to consummate the contract to closing.
In the event this contract is forfeited and we proceed to sale with a subsequent Buyer, we will look to you for all compensatory and consequential damages *** in addition to forfeiture of the earnest money deposit as provided by the contract.”

Plaintiffs’ attorney also referred defendant to the forfeiture and fee provisions of the contract. On May 1, defendant’s attorney sent plaintiffs’ attorney a letter which again requested the return of defendant’s earnest money.

On May 21, plaintiffs signed a contract to sell their property for $94,950 to Douglas and Juli Alspaugh. On May 22, plaintiffs signed a second contract to purchase Bankes’ property, this time for $116,000. Plaintiffs sold their home to the Alspaughs on July 19, 1989.

Plaintiffs filed suit on August 30, 1990. In their complaint, plaintiffs alleged that the 45-day period for defendant to obtain financing expired on April 18. Plaintiffs also alleged that they did not receive notice, prior to April 18, that defendant could not get financing. Defendant refused to go through with thfe closing on May 10. Because of this alleged breach, plaintiffs incurred the following damages: (1) $3,050 from reduced sales price to a subsequent buyer; (2) $3,000 for additional closing fees and start-up costs; (3) $4,500 for three brood mares that were part of plaintiffs’ original purchase contract for the farm in Belvidere; (4) $300 to buy out the Belew contract so that defendant could purchase plaintiffs’ property; (5) legal fees incurred on the transaction and interest on those legal fees; (6) $1,000 lost earnest money; (7) $1,484.04 mortgage interest; (8) $900 lost wages for Anna Rogers; and (9) $3,500 settlement amount with Bankes, the seller of the Belvidere farm.

Defendant filed an answer and a counterclaim which sought the return of her earnest money and attorney fees. Plaintiffs answered the counterclaim and alleged, as an affirmative defense, the forfeiture provision of the contract.

Plaintiffs filed a motion for summary judgment on the issue of liability. Plaintiffs argued that defendant did not comply with the notice provision of the contract in that she did not send notice to plaintiffs at their home. Plaintiffs attached to the motion their affidavits in which they each stated that they did not receive, at their home address, notice of defendant’s inability to obtain financing. They also averred that they did not consent to any modification of the notice provision of the contract.

Defendant also filed a motion for summary judgment. Defendant argued that, under the terms of the contract, she had 45 days from March 17, 1989, or until May 1, to obtain financing or to give notice. March 17 was the date that plaintiffs notified defendant that they had cancelled the Belew contract. Defendant further argued that plaintiffs had actual notice, prior to May 1, of defendant’s failure to obtain financing. According to defendant, the requirement that notice be sent to plaintiffs’ home address was not material, and defendant satisfied the notice requirement. Defendant also argued that plaintiffs waived strict compliance with the contractual notice requirement when they failed to mention the defective notice in their April 28 letter to her. Finally, defendant argued that since plaintiffs were represented by an attorney, she could not communicate directly with them, so that notice to their attorney was notice to them. Defendant also moved for summary judgment on the issue of damages because, according to defendant, plaintiffs were limited to retaining her earnest money deposit. Defendant included a portion of Anna Rogers’ deposition testimony, in which she admitted that she saw the termination letter, and she consulted with her attorney about it before her attorney sent the April 28 letter to defendant.

The trial court found that the 45-day period specified in the contract began on March 17, 1989, and expired on May 1, 1989. The court also determined that the notice defendant sent to the realtor and plaintiffs’ attorney was not sufficient because it was not sent to plaintiffs’ home address. However, the court also found that plaintiffs were aware of the content of defendant’s letter when they consulted their attorney prior to April 28. Finally, the court found that plaintiffs did not waive any of the notice requirements of the contract. The court therefore granted plaintiffs summary judgment on the issue of liability and denied defendant’s motion.

The cause proceeded to a bench trial. Anna Rogers testified that after the closing did not take place on May 10 plaintiffs put the house back on the market. In May 1989, plaintiffs needed $69,000 to close on the Belvidere property. In July 1989, when they eventually bought the farm, they obtained a $71,000 mortgage to cover the additional start-up costs. After defendant failed to close with plaintiffs, Bankes sued plaintiffs because they were unable to close the sale of the farm. Plaintiffs settled with Bankes for $5,250. The first contract with Bankes included three horses as part of the purchase. The second contract did not include the horses. Anna also testified that she made two mortgage payments on the house between May 10 and July 19,1989.

Defendant moved for a directed finding. The court granted defendant’s motion as to the cost of the horses, $85 for a well and septic report, the money for legal fees and interest on the fees that were incurred in the transaction, and the $3,500 for settlement with Bankes. Plaintiffs’ claim for Anna’s lost wages was barred by a pretrial order. The court denied the rest of the motion.

Ultimately, the court awarded plaintiffs damages totalling $7,834.04: $3,050 for the reduced sales price of the property, $3,000 for additional closing and start-up costs for the farm, $300 to buy out the Belew contract, and $1,484.04 for mortgage interest. The court found that defendant did not prove her election of remedies claim because it was not clear that plaintiffs elected to retain the earnest money as a forfeiture. The court also ruled against defendant on the waiver theory. The court reserved the issue of attorney fees.

After a hearing in which plaintiffs submitted records to establish the amount of attorney fees, the court entered an order awarding them $5,000. Defendant filed a post-judgment motion, which was denied. Defendant then timely appealed.

Defendant first contends that the court erred in entering summary judgment for plaintiffs on the issue of liability. A trial court may enter summary judgment when the pleadings, affidavits, and depositions on record show that no genuine issue of material fact exists. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1005.) If the issue turns on a question of law, the court may dispose of the cause on a summary judgment motion. (Wojdyla v. City of Park Ridge (1992), 148 Ill. 2d 417, 421.) When the cause is a breach of contract action, a genuine issue of material fact exists if the writing contains an ambiguity which requires the admission of extrinsic evidence. (Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 272.) (The trial court found, and the parties do not dispute, that the contractual provisions were not ambiguous.) Because the interpretation of a contract is a question of law, we may interpret the contract independently of the trial court’s judgment. Fitzwilliam v. 1220 Iroquois Venture (1992), 233 Ill. App. 3d 221, 237.

Defendant argues that the trial court erred in finding that she breached the contract by not complying strictly with the notice requirement. Defendant notes that the trial court found that plaintiffs had actual notice before the May 1 deadline. Plaintiffs respond that because defendant did not follow the notice requirement, they did not receive notice. Plaintiffs argue that, under Thakral v. Mattran (1987), 156 Ill. App. 3d 849, the notice here was not sufficient. In Thakral, the buyers failed to notify the sellers in writing within the time period specified by the contract. The court stated:

“Here, the sellers did not receive notice of buyers’ failure to obtain financing until the day after the time specified for securing a loan commitment. Neither the oral notice provided by the buyers’ attorney to sellers’ attorney nor the written notice mailed within the time specified has any significance since the contract became binding in the absence of the receipt of written notification.” (Thakral, 156 Ill. App. 3d at 854-55.)

The court concluded that the buyers were required to serve notice in compliance with the terms of the contract. Thakral, 156 Ill. App. 3d at 856.

While plaintiffs are correct that defendant technically breached the contract by not sending the notice to their home address, equitable principles will prevent a forfeiture of a contract in this situation. Forfeitures are not favored, and a party will be relieved from a technical forfeiture if injustice would result from its enforcement. (Myers v. Popp Enterprises, Inc. (1991), 216 Ill. App. 3d 830, 835.) Whether a breach is material, thereby discharging the other party’s duty to perform, is an issue to be determined based on the inherent justice of the matter. (Hickox v. Bell (1990), 195 Ill. App. 3d 976, 992.) As defendant argues, the purpose of a notice provision is to ensure that the party is informed and the notice was delivered. Vole, Inc. v. Georgacopoulos (1989), 181 Ill. App. 3d 1012, 1019.

Here, plaintiffs’ attorney received written notice within the time period. We note that “[generally, notice to an attorney is notice to the client and knowledge of an attorney is knowledge of, or imputed to, the client notwithstanding whether the attorney has actually communicated such knowledge to the client.” (Foley v. Metropolitan Sanitary District of Greater Chicago (1991), 213 Ill. App. 3d 344, 351; In re Marriage of Clarke (1990), 194 Ill. App. 3d 248, 251.) More importantly, however, plaintiffs were aware of the letter sent to their attorney and of its contents, before the May 1 deadline.

The purpose of the notice provision was to assure that plaintiffs received notice that defendant was unable to obtain financing and would not be able to complete the purchase of the real estate from plaintiffs. Since plaintiffs received notice, in writing, prior to the expiration of the specified time, the object of the notice provision was accomplished. (Myers, 216 Ill. App. 3d at 836.) We conclude that the failure to send the written notice to plaintiffs’ home address was not a material breach of the contract.

Therefore, the trial court erred in entering summary judgment for plaintiffs on the issue of liability. We need not address defendant’s remaining appellate contention relating to the issues of damages and attorney fees, since we conclude that defendant was not liable to plaintiffs for breach of contract. Since defendant also moved for summary judgment on the issue of liability based on the contract, we enter summary judgment in favor of defendant on that issue. We remand the cause to the trial court for further proceedings on defendant’s counterclaim.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

UNVERZAGT and BOWMAN, JJ., concur.