text:
    RICHARD C. CLAY, Plaintiff, v. PEPPER CONSTRUCTION COMPANY et al., Defendants-Appellants (Lake County Glass Company, Inc., Defendant; Division Eight, Inc., Defendant-Appellee).
    First District (5th Division)
    Nos. 1—89—3208, 1—89—3226 cons.
    Opinion filed November 2, 1990.

      Kiesler & Berman, of Chicago (Stephen B. Frew and Peter R. Mennella, of counsel), for appellant Hans Rosenow Roofing Co., Inc.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, James K. Horstman, Joseph M. Vallowe, and Lloyd E. Williams, Jr., of counsel), for appellee Division Eight, Inc.
   JUSTICE MURRAY

delivered the opinion of the court:

Various defendants appeal from a trial court’s order in a one-count Structural Work Act case. (111. Rev. Stat. 1985, ch. 48, pars. 60 through 69.) The appealing parties are defendants Hans Rosenow Roofing Co., Inc. (Rosenow), Pepper Construction Company (Pepper), and Lake Specialties, Inc. (Lake Specialties). The fourth defendant, Division Eight, Inc. (Division Eight), did not appeal and defends on appeal. The fifth defendant, Lake County Glass Co., Inc., and the plaintiff, Richard C. Clay (Clay), do not appeal and have not appeared in this appeal.

For the following reasons we affirm the decision of the trial court.

The plaintiff, Clay, a glazier, filed a complaint in the trial court asserting that he was injured when he allegedly fell from a ladder during the construction of a building in River Woods, Illinois. He named as defendants Pepper, a general contractor, Rosenow, a roofing contractor, Lake Specialties, who had contracted with Pepper to furnish all necessary labor, materials, equipment and supplies, and Division Eight. Division Eight filed a motion for summary judgment alleging by affidavit that it was not in charge of the work as required by the terms of the Illinois Structural Work Act. (111. Rev. Stat. 1985, ch. 48, pars. 60 through 69.) A nonemployer, to be responsible for the injuries of a worker caused during construction, must be in charge of the work the employee was doing at the time of the injury. However, being in charge under the Illinois Structural Work Act often has nothing to do with the real world of construction.

Division Eight filed a motion for summary judgment contending that it was only a supplier of material on the job and not in charge of the work being performed by Clay at the time of his injuries. Division Eight’s motion was supported by the affidavit of its then president. The motion was directed only at Clay’s complaint. Although all parties were served with Division Eight’s notice of motion, motion and memorandum in support of its motion, Division Eight and Clay were the only parties to appear at the hearing. After determining the essence of the motion, the trial court and the plaintiff’s (Clay’s) attorney engaged in the following exchange:

“THE COURT: Do you want time to respond?
MR. LADLE: No, Judge, what I want is, I believe from everything they tell us and from everything we know thus far, they may be correct. I’m saying that their motion should probably be granted, but I’m asking that they not get the 304(a) language.”

On May 16, 1989, the trial court granted Division Eight’s motion for summary judgment and dismissed Clay’s complaint as to Division Eight. Over the objection of plaintiff’s counsel, the trial court made the order final and appealable pursuant to Rule 304(a) (111. Rev. Stat. 1989, ch. 110A, par. 304(a)). On the afternoon of that same day, Clay’s deposition was taken. Facts developed in the deposition indicated that the question of whether Division Eight was in charge of the work as required by the Illinois Structural Work Act may have been a question of fact and not subject to a motion for summary judgment.

Based on Clay’s deposition testimony Clay, Rosenow, Pepper and Lake Specialties moved to reconsider and vacate the trial court’s order granting summary judgment. On June 1, 1989, Rosenow moved to reconsider and vacate the May 16, 1989, order and for leave to file a counterclaim against Division Eight. Pepper joined Rosenow in the motion. Lake Specialties filed its own motion to reconsider. Clay also filed a motion to reconsider the order in light of this deposition.

On August 1, 1989, the trial court found that the various codefendants had standing to contest Division Eight’s motion for summary judgment and denied all motions to reconsider. It was further ordered that a motion by Rosenow for leave to file a counterclaim was amended on its face to seek leave to file a third-party action against Division Eight. Rosenow’s motion was continued to September 11, 1989. The August 1, 1989, order also vacated language in the May 16, 1989, order that would have made final and appealable that order setting the time clock for appeal as of October 27, 1989. (111. Rev. Stat. 1989, ch. 110A, par. 304(a).) Rosenow moved for a rehearing on its previous motion to vacate the order of May 16, 1989. Lake Specialties and Pepper joined in that motion. On September 11, 1989, the trial court denied Rosenow’s motion for rehearing but continued the motion for leave to file a third-party complaint against Division Eight until October 27,1989.

On October 27, 1989, the trial court denied all motions for leave to file third-party complaints against Division Eight and reinstated the Rule 304(a) language that made the initial May 16, 1989, order, an otherwise nonfinal order, a final and appealable order. (111. Rev. Stat. 1989, ch. 110A, par. 304(a).) On November 22, 1989, Rosenow filed its notice of appeal. Pepper and Lake Specialties also filed their notices of appeal.

The appeals have been consolidated. Clay, the plaintiff, has not appeared in the appeal or filed a notice of appeal. Rosenow has filed a brief and a reply brief. Neither Pepper nor Lake Specialties has filed any briefs, but adopted the brief and reply brief filed by Rosenow.

This appeal involves our often confusing remedial law relating to third-party actions and orders made final only by the use of the words there is no just reason to delay the enforcement or appeal of this order. 111. Rev. Stat. 1989, ch. 110A, par. 304 (a).

On appeal Rosenow, Pepper and Lake Specialties argue that the trial court erred and abused its discretion in granting and subsequently refusing to vacate summary judgment in favor of Division Eight. They base this argument on Clay’s deposition testimony, equitable grounds, timeliness of the May 16, 1989, order, an alleged defective affidavit supporting Division Eight’s motion and the provisions of section 2 — 1301 of the Illinois Civil Practice Law (111. Rev. Stat. 1987, ch. 110, par. 2 — 1301).

In opposition, Division Eight argues that Pepper, Rosenow and Lake Specialties lack standing to contest the trial court’s order and that in any event the trial court was correct in its May 16, 1989, ruling and subsequent rulings relating to that order.

The initial issue that must be resolved is whether Rosenow, Pepper and Lake Specialties have standing to appeal the granting of summary judgment in Clay’s case against Division Eight. Rosenow, Pepper and Lake Specialties claim that the fact that Division Eight had potential liability to them is enough to affect the codefendants and gives standing to appeal the grant of summary judgment because if the trial court’s grant of summary judgment is affirmed, the remaining defendants may be forced to share the cost of some portion of the liability which should have been borne by Division Eight and they have standing because the trial court’s order granting summary judgment to Division Eight affects their right to file counterclaims, third-party actions or other claims against Division Eight.

We conclude that the trial court’s various orders relating to Division Eight and Clay’s claim against Division Eight did not as yet and maybe never affect any of the procedural rights of Rosenow, Pepper or Lake Specialties. First, any defendant has a right to plead any claim against either a plaintiff or defendants whether in the nature of a setoff recoupment, cross-claim or otherwise, and whether in tort, contract, for liquidated or unliquidated damages, or for other relief. (111. Rev. Stat. 1987, ch. 110, par. 2— 608.) The question of the timeliness of pleading a counterclaim is within the sound discretion of a trial judge. (Otto Real Estate, Inc. v. Shelter Investments (1987), 153 Ill. App. 3d 756, 506 N.E.2d 351.) While the filing of a counterclaim is permissive in cases involving contributions among joint tortfeasors, a party is not entitled to relief in the absence of a pleading raising that issue. (Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939.) The Illinois Supreme Court held in Laue that section 5 of the Contribution Act (111. Rev. Stat. 1983, ch. 70, par. 305) requires that if an injured party sues one or more of several tortfeasors, then any actions for contribution among those tortfeasors must be asserted by way of a cross-claim or a third-party claim in the injured party’s action and will be barred if they are not so brought. (Laue v. Leifheit (1984), 105 Ill. 2d 191, 473 N.E.2d 939.) In a contribution case the counterclaim or third-party action may be asserted by a separate action before or after payment; however, that action cannot be instituted after a pending case has been concluded. (Pell v. Victor J. Andrew High School (1984), 123 Ill. App. 3d 423, 462 N.E.2d 858.) This pending case has not been concluded.

It is noted that in its final order the trial court did not deny either Rosenow, Pepper or Lake Specialties the right to amend its pleadings or file a third-party complaint; had the order done so, obviously these parties would have standing. This appeal involves only a claim by Clay against Division Eight in which the trial court granted summary judgment in favor of Division Eight, a decision which Clay has not appealed. The right to appeal exists only in favor of a party whose rights have been prejudiced by the judgment or decree appealed from. (Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 244, 446 N.E.2d 1271, 1274.) As between codefend ants, a judgment for or against one of them does nothing but establish their respective rights and liabilities towards the plaintiff, unless the issues between the codefendants were actively litigated in the action. (Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 446 N.E.2d 1271.) Since the codefendants did not assert a counterclaim for contribution in the time of the granting of summary judgment in favor of Division Eight and against Clay, they now do not have standing to appeal the dismissal of Division Eight from Clay’s cause.

Rosenow, Pepper and Lake Specialties rely on the case of St. Mary of Nazareth Hospital v. Kuczaj (1988), 174 Ill. App. 3d 268, 270-71, 528 N.E.2d 290, which states “[a]ny party to the case may seek appellate review from a final judgment which is adverse to his interests, and whether the party was actually aggrieved does not determine his right to appeal.” We find the facts of St. Mary’s significantly different than the facts in the present case. Rosenow, Pepper and Lake Specialties claim to have an adverse position and thus standing because Division Eight was allowed to extricate itself from liability to Clay before its possible liability to the other defendants could be foreseen or determined. Yet, none of these codefendants took the time to contest the motion for summary judgment until after it was entered. In St. Mary’s, the husband and wife both had potential liability for the payment of the expenses incurred during the marriage. Since the judgment for dissolution of marriage between the parties had provided that the husband was to maintain medical and hospital insurance covering the wife, the court held that the wife would be prejudiced by the summary judgment given to the husband, and therefore, she had the standing necessary for appellate review. The court reasoned that the liability of her then husband for medical insurance coverage and summary judgment in the pending case would have a collateral estoppel effect on any future action against him. The court also stated that “[h]ad this action been brought under the Contribution Among Joint Tortfeasors Act (111. Rev. Stat. 1987, ch. 70, par. 305), rather than the family expense statute, there is no question but that Lillian would have been required to assert a counterclaim for contribution in the action below in order to have standing to appeal the summary judgment in favor of a codefendant.” St. Mary of Nazareth Hospital v. Kuczaj (1988), 174 Ill. App. 3d 268, 273, 528 N.E.2d 290, 294.

Since we conclude that Rosenow, Pepper and Lake Specialties lack standing to contest the trial court’s order granting Division Eight summary judgment against Clay, consideration of the propriety of the trial court’s decision to grant that summary judgment is unnecessary. Accordingly, we affirm the trial court’s order granting summary judgment to Division Eight and denying Rosenow’s, Pepper’s and Lake Specialties’ motions to reconsider that order.

With respect to the trial court’s denial of defendants’ motions for leave to file counterclaims and/or third-party actions against Division Eight, the appeals from those portions of the trial court’s orders seemed to have been abandoned by defendants. They were not argued in the defendants’ brief. A review of the report of proceeding on October 27, 1989, the date the trial court denied all motions to file third-party complaints against Division Eight and reinstated the final and appealable language of Rule 304(a) (111. Rev. Stat. 1989, ch. 110A, par. 304(a)) discloses that the defendants’ main concern was the “res judicata” effect of the initial May 16, 1989, order on any subsequent filings of the defendants against Division Eight. This same concern was expressed in the final oral argument in this appeal. As the October 27, 1989, report of proceedings reveals, “res judicata” has to be raised by the third-party defendant. The “res judicata” effect of the May 16, 1989, order would only apply, if at all, if one or more of the defendants filed a third-party or other claim against Division Eight and Division Eight raised “res judicata” as a defense to those actions. The record does not disclose this eventuality.

A party invoking “res judicata” must not only plead the former action as a bar, but must also prove the existence and character of the former judgment as well as its legal effect. (Edwards v. City of Quincy (1984), 124 Ill. App. 3d 1004, 464 N.E.2d 1125.) Any expression by this court at this time on the “res judicata” effect of the May 16, 1989, summary judgment in favor of Division Eight and against Clay as to possible future filings by ■ one or more of the present appealing parties against Division Eight would be premature.

For all the above reasons, the trial court’s orders appealed from are affirmed and the cause is remanded for further proceedings.

Affirmed and remanded.

COCCIA, P.J., and GORDON, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    DANIEL GIRALDI, a Minor, by Debra Giraldi, his Mother and Next Friend, et al., Plaintiffs-Appellants, v. JAMES LAMSON et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—1316
    Opinion filed November 5, 1990.

      La Salle Law Centre, of Chicago (John Thomas Moran, Jr., and Barry S. Grossman, of counsel), for appellants.
    Williams & Montgomery, Ltd., of Chicago (Barry L. Kroll, James K. Horstman, Alfred A. Spitzzeri, and C. Barry Montgomery, of counsel), for appellee Septran, Inc.
    Modesto, Reynolds & McDermott, of Chicago (Michael L. Lulich, of counsel), for appellee Community Consolidated School District No. 62.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Daniel Giraldi, a minor, by Debra and Thomas Giraldi, Daniel’s parents, filed a complaint against James Lamson, Community Consolidated School District No. 62 (School District), and Septran, Inc. (Septran), for damages allegedly resulting from Lamson committing a series of sexual assaults upon Daniel. Daniel’s cause of action is presently pending against all three defendants in the circuit court of Cook County. Debra and Thomas joined Daniel’s cause of action and asserted their own cause of action for intentional infliction of emotional distress against the School District and Septran.

On July 22, 1986, the plaintiffs filed their initial complaint, which contained five counts. Subsequently, the School District and Septran answered the first four counts and jointly moved to dismiss count V, which purports to allege Debra and Thomas’ cause of action for the intentional infliction of emotional distress. On May 2, 1989, the trial court heard arguments regarding the motion to dismiss count V and then dismissed it with prejudice on the grounds that a cause of action was not stated. For the following reasons set forth below, we affirm the trial court’s dismissal of count V.

The factual allegations of Debra and Thomas’ complaint are as follows. Daniel Giraldi was enrolled in kindergarten at an elementary school in the School District from September of 1983 to June of 1984. The School District had a written contract with Septran to transport children to and from Daniel’s school. Daniel was the first child picked up in the morning by a Septran bus, which was driven by James Lam-son, a Septran employee. From September 1983 through June 1984, Lamson allegedly committed various sexual assaults upon Daniel while acting within the course of his employment. These events were not discovered until March of 1985, when Lamson was arrested and pled guilty to aggravated criminal assault. As a result of discovering these events, Debra and Thomas sought psychological and psychiatric treatment for their agitation, anger, and anxiety.

Debra and Thomas generally allege that the School District carelessly and negligently entered into a contract for transportation with Septran; carelessly and negligently failed to investigate Lamson’s background; carelessly and negligently allowed Lamson to remain as a bus driver when the School District knew or should have known of Lamson’s propensities; carelessly and negligently failed to investigate Lamson’s background when the School District had been advised of Lamson’s conduct; carelessly and negligently failed to take the necessary precautions to protect Daniel on Lamson’s bus; carelessly and negligently failed to employ the proper supervising techniques in supervising the contract for transportation with Septran; and otherwise carelessly and negligently maintained and supervised the contract for transportation with Septran when the School District knew or should have known that danger to Daniel was imminent. In addition in count V, Debra and Thomas alleged that the School District intentionally failed to investigate a report that a School District teacher had been told that Lamson had been seen hugging Daniel on numerous occasions.

Furthermore, it is alleged that Septran “intentionally failed to investigate, act upon said information, nor [sic] take any affirmative action to determine why said bus was parked.” Debra and Thomas also allege that Septran carelessly and negligently failed to investigate Lamson’s background; carelessly and negligently failed to employ the proper procedures for investigating Lamson; carelessly and negligently employed Lamson; carelessly and negligently allowed Lamson to remain as an employee when Septran knew or should have known of Lamson’s propensities; carelessly and negligently allowed Lamson to be a bus driver for elementary school when Septran knew or should have known of Lamson’s propensities; carelessly and negligently failed to take the necessary precautions to protect Daniel on Lamson’s bus; carelessly and negligently allowed Lamson to drive a bus owned and operated by Septran when Septran knew or should have known that danger to Daniel was imminent; carelessly and negligently allowed Lamson to remain as a bus driver for Septran when Septran knew or should have known that danger to Daniel was imminent; and carelessly and negligently managed, operated, hired, supervised and controlled Lamson when Septran knew or should have known that danger to Daniel was imminent. Debra and Thomas also specifically allege that telephone calls were made to Septran sometime between September 1983 and June 1984 that informed Septran that Lamson and his school bus were parked on a side street after picking Daniel up in the morning and not proceeding on the normal bus route.

Debra and Thomas argue that allegations in count V state a cause of action for the intentional infliction of emotional distress against the School District and Septran. We disagree. A cause of action for the tort of intentional infliction of emotional distress exists when: (1) the conduct involved is truly extreme and outrageous; (2) the actor either intends or knows that there is at least a high probability that his conduct will cause severe emotional distress; and (3) the conduct does, in fact, cause severe emotional distress. (McGrath v. Fahey (1988), 126 Ill. 2d 78, 86, 533 N.E.2d 806.) This standard is so stringent that it is met only if the distress inflicted is so severe that no reasonable person could be expected to endure it. (E.g., Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 90, 360 N.E.2d 765.) The cases that have met this pleading standard have included a coercive factor, such as an employer’s attempt to cause an employee to commit an illegal act (Milton v. Illinois Bell Telephone Co. (1981), 101 Ill. App. 3d 75, 427 N.E.2d 829), or the existence of a pattern of harassment involving extreme and continuous calls and letters of a threaten ing and profane or obscene nature (Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21, 392 N.E.2d 154). Grey v. First National Bank (1988), 169 Ill. App. 3d 936, 943, 523 N.E.2d 1138, appeal denied (1988), 122 Ill. 2d 574, 530 N.E.2d 245, cert. denied (1990), 493 U.S. 1020,107 L. Ed. 2d 739, 110 S. Ct. 719.

First, Debra and Thomas argue that the School District’s failure to investigate a report that Lamson was seen “hugging” Daniel; Septran’s failure to investigate that Daniel’s school bus was seen several times parked on a side street after picking Daniel up; and the School District’s and Septran’s failure to investigate Lamson’s background constitute extreme and outrageous conduct. We disagree. Debra and Thomas cite McGrath v. Fahey (1988), 126 Ill. 2d 78, 533 N.E.2d 806, as support for their contention that the School District’s and Septran’s alleged conduct constituted intentional infliction of emotional distress. In McGrath, the plaintiff contracted to sell certain real estate to the defendant bank owner. Subsequently, the parties accused each other of fraud, the bank refused to transfer $1 million in certificates of deposit, owned by plaintiff, from the bank as plaintiff requested, and the plaintiff advised the bank of his heart condition. When the plaintiff also told the bank’s attorney that he was becoming extremely anxious about the matter, the bank’s attorney said that the plaintiff must assign his real estate interest to the bank, or else the bank would financially ruin him. Later, plaintiff suffered a massive heart attack and underwent open heart surgery. Thereafter, the bank continued refusing to transfer the certificates of deposit. When the bank finally transferred the certificates, the bank dishonored plaintiff’s eight drafts drawn on a checking account. The McGrath court held that the defendant’s conduct was extreme and outrageous, reasoning that “the degree of power or authority which a defendant has over a plaintiff can impact upon whether that defendant’s conduct is outrageous. The more control which a defendant has over the plaintiff, the more likely that defendant’s conduct will be deemed outrageous, particularly when the alleged conduct involves either a veiled or explicit threat to exercise such authority or power to plaintiff’s detriment.” McGrath, 126 Ill. 2d at 86-87.

We do not find Debra and Thomas’ contention that the School District and Septran had power, authority, or control over them persuasive because the School District and Septran were not coercing Debra and Thomas, and because the School District and Septran were not harassing Debra and Thomas. We also do not find that the School District’s and Septran’s failure to investigate Lamson’s background extreme and outrageous conduct. While the School District’s and Septran’s conduct may have been negligent vis-a-vis Daniel and caused Daniel extreme distress (which is a matter to be determined by the trial court), we reject the contention that the School District’s and Septran’s conduct or failure to act were extreme and outrageous conduct vis-a-vis Debra and Thomas.

Second, we reject the contention that the School District and Septran intended to inflict emotional distress or knew that there was a high probability that their conduct would cause Debra and Thomas distress, because neither the School District nor Septran knew that its failure to investigate would have discovered criminal behavior. Moreover, Debra and Thomas’ allegations regarding Septran’s and the School District’s alleged carelessness and negligence, i.e., that they carelessly and negligently failed to investigate Lamson’s background, do not allege that Septran’s and the School District’s acts were intentional or that the School District and Septran knew that severe emotional distress was certain or substantially certain to result. Neuberg v. Michael Reese Hospital & Medical Center (1978), 60 Ill. App. 3d 679, 685, 377 N.E.2d 215 (allegations of reckless, willful and wanton misconduct in a complaint filed by parents of two boys who developed cancer several years after being treated with radiation before such treatment was linked with thyroid cancer without allegations that defendants committed the acts with the intent to inflict severe emotional distress or that they knew that severe emotional distress was certain or substantially certain to result were held insufficient, and failed to state a cause of action for the infliction of emotional distress).

Alternatively, Debra and Thomas argue that they have sufficiently pled that the School District and Septran are vicariously liable for Damson’s extreme and outrageous acts. Again, we disagree. While it is true that under the doctrine of respondeat superior an employer may be liable for the negligent, willful, malicious or even criminal acts of its employees when such acts are committed in the course of employment and in furtherance of the employer’s business, the employer is not liable to an injured third party where the acts complained of were committed solely for the benefit of the employee. (Webb v. Jewel Cos. (1985), 137 Ill. App. 3d 1004, 1006, 485 N.E.2d 409; Randi F. v. High Ridge YMCA (1988), 170 Ill. App. 3d 962, 964, 524 N.E.2d 966.) Although the issue of whether an employee has departed from the scope of employment by acting purely for his own interest, rather than at least in part for the employer, is normally a question for the jury (Randi F. v. High Ridge YMCA (1988), 170 Ill. App. 3d 962, 964-65, 524 N.E.2d 966), we find that count V is factually and legally insufficient because Debra and Thomas merely conclusively pled that Lamson was within the course and scope of his employment and stated no facts supporting the allegation that Lamson was furthering his employer’s business.

After considering Debra and Thomas’ well-pled facts as true and all reasonable inferences which could be drawn therefrom, no such facts have been pled which, if proved, would justify recovery against the School District and Septran for the intentional infliction of emotional distress alleged in count V of their complaint. Therefore, the trial court’s order that dismissed with prejudice Debra and Thomas’ cause of action for intentional infliction of emotional distress against the School District and Septran is affirmed.

Affirmed.

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


text:
    J.H. CHAPMAN GROUP, LTD., Plaintiff-Appellee, v. PITA BAKING COMPANY, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—2818
    Opinion filed November 5, 1990.
    Norman H. Lesser, of Chicago, and James K. McCabe, of Brookfield, for appellant.
    Feiwell, Galper & Lasky, Ltd., of Chicago (William H. Hrabak, Jr., of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

J.H. Chapman Group sued Pita Baking Company to recover a commission for brokering the sale of Pita’s business, and an additional commission for renegotiating a lease for a gyros manufacturing operation belonging to Pita’s owners and locating a new facility for that operation. Pita refused to pay the commissions, arguing that Chapman Group could not collect a fee for the sale of a business which held any real estate interest because it held no real estate broker’s license. The trial court entered a directed verdict in Pita’s favor with respect to the additional commission, and after a jury verdict, entered a judgment in favor of Chapman Group with respect to the original commission. For the reasons below, we affirm.

J.H. Chapman Group brokers the sale of businesses and initiates mergers, acquisitions, and leveraged buyouts. Chapman Group was originally organized as a partnership, J.H. Chapman Group, and in 1982 reorganized as a corporation, J.H. Chapman Group, Limited.

In December 1981, Chapman Group was retained by Pita Baking Company to find a purchaser for the sale of Pita’s business. Pita agreed to pay a commission of $75,000. Chapman Group was originally retained for one year, but the parties later extended the contract to May 1984.

Pita’s owners also owned a gyros manufacturing plant, and in September 1982, the parties entered into an additional agreement, requiring Chapman Group to find a new facility for the gyros manufacturing operation and renegotiate that operation’s present lease. For the additional services, Chapman Group was to receive an additional $10,000.

In November 1982, Chapman Group brought together Pita and DCA Food Industries, Inc. which is not a party to this appeal. Meetings and negotiations for the sale of Pita were carried out over the next six months. After the general terms were negotiated, Pita continued to deal with DCA without Chapman Group.

In December 1984, Pita agreed to sell its business to DCA for an amount exceeding $800,000. The sale included no real estate interest, although it was contingent upon DCA obtaining a lease on the property where Pita’s factory stood. Chapman Group had no responsibility for obtaining the lease for DCA. After the sale was completed, Pita refused Chapman Group’s demands for payment. Chapman Group sued Pita, alleging breach of both the original contract and the additional agreement.

At trial, Norman Chapman, president of Chapman Group, testified that no one at Chapman Group held a real estate broker’s license and, further, that the corporation Chapman Group, Limited, was the “successor in interest” to the former partnership known as J.H. Chapman Group. Pita presented no evidence to rebut Mr. Chapman.

Pita moved for a directed verdict, arguing that pursuant to the Real Estate License Act of 1983 (111. Rev. Stat. 1989, ch. Ill, par. 5807), Chapman Group could not collect a fee for the sale of a business which held any real estate interest because it held no real estate broker’s license. Pita also argued that the Chapman Group corporation had not proved an assignment of interests of the contracting party, the Chapman Group partnership.

Pita moved for a directed verdict on both agreements. The trial court denied Pita’s motion with respect to the original contract, but entered a directed verdict with respect to the additional agreement. The trial court further rejected Pita’s argument that Chapman Group had failed to plead and prove an assignment of interest. The jury returned a verdict in favor of Chapman Group for $75,000, and judgment was entered. Pita appeals.

The Real Estate License Act (RELA), and its predecessor, the Real Estate Brokers and Salesmen License Act (111. Rev. Stat. 1981, ch. Ill, par. 5714 (repealed by Pub. Act 83 — 191, §23, eff. January 1, 1984)), prohibit the recovery of compensation for acting or serving as a real estate broker without a properly issued broker’s license. (111. Rev. Stat. 1989, ch. Ill, par. 5807.) Extrapolating from the statutory prohibition, Pita urges that RELA be broadly applied to prohibit an unlicensed person from recovering compensation for brokering any transaction that involves any real estate interest. Chapman Group counters that RELA should apply only where real estate interests comprise a substantial part of the transaction.

Here, however, it is unnecessary to determine the applicability of RELA to transactions involving both real estate and non-real-estate interests, because the facts show that the two agreements between Pita and Chapman Group were separate and distinct. Pita originally retained Chapman Group to locate a buyer for the sale of its business and agreed to pay a commission of $75,000. The price of the sale exceeded $800,000, and no value was placed on Pita’s month-to-month tenancy. No other real estate interests were involved. The additional agreement, made nine months after the first and providing an additional $10,000 commission, required Chapman Group to locate an alternative facility for the separate gyros manufacturing operation and renegotiate Pita’s lease for that operation’s existing facility.

Thus, RELA, which is intended to “evaluate the competency of persons engaged in the real estate business and to regulate such business for the protection of the public” (111. Rev. Stat. 1989, ch. Ill, par. 5801), applied to the additional agreement, which involved real estate entirely, but did not apply to the original agreement, which involved no real estate interests. The trial court correctly ruled on the separate agreements, entering judgment on the original agreement and denying the commission for the additional agreement.

Pita further argues that RELA applied because Chapman Group brought DCA to Pita knowing that DCA would need to negotiate a lease with Pita’s landlord to execute its contract with Pita. But Pita fails to explain how a broker’s license held by Chapman Group could have benefited lease negotiations that DCA undertook on its own behalf with another third party, where Chapman Group was utterly unconnected to negotiations, and the negotiations involved no real estate interest belonging to Pita. The mere knowledge that a party to a brokered transaction may conduct ancillary transactions with a third party involving its own real estate interests is not sufficient, absent any connection with the broker to the ancillary transaction, to bar an unlicensed broker from collecting his commission.

Finally, Pita argues without merit that Chapman Group failed to allege and prove that its corporate entity was a successor in interest to the Chapman Group partnership, which was the contracting entity. The complaint, however, states that Chapman Group, Limited, was a successor in interest, and Mr. Chapman’s testimony was unrebutted. Pita’s quibble over the term “successor” is an argument of form over substance. The rulings of the trial court were correct, and accordingly, we affirm.

Affirmed.

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


author: JUSTICE HARTMAN

text:
    JASPER BROCK, Petitioner-Appellant, v. POLICE BOARD OF THE CITY OF CHICAGO et al., Respondents-Appellees.
    First District (2nd Division)
    No. 1—89—3291
    Opinion filed November 7, 1990.

      Law Offices of Joseph V. Roddy, of Chicago (Joseph V. Roddy and Thomas J. Pleines, of counsel), for appellant.
    Kelly R. Welsh, Corporation Counsel, Chicago (Ruth M. Moscovitch and Michelle A. Hutchinson, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE HARTMAN

delivered the opinion of the court;

Petitioner, Jasper Brock, appeals from the circuit court’s order affirming his discharge as a Chicago police officer by respondents, Police Board of the City of Chicago (Board). Petitioner was found guilty of violating Chicago Police Department Rules 1, 2 and 6 in that analysis of his urine specimen revealed a quantity of cocaine metabolite. Petitioner raises as issues for review whether respondents’ decision was against the manifest weight of the evidence and whether he was afforded a full and fair due process hearing. No issue is raised as to the propriety of discharge as the result of rules’ violations.

On March 18, 1987, the Chicago police superintendent charged petitioner with breaking Chicago Police Department Rules 1 (“violation of any law or ordinance”); 2 (“any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department”); and 6 (“disobedience of any order or directive, whether written or oral”). Petitioner pled not guilty and was represented by counsel. Respondents’ hearing officer, William H. Hall, conducted administrative hearings commencing on February 10, 1988. The following evidence was presented at the hearings and recorded in written transcripts subsequently presented to respondents for consideration and decision.

Called by the Chicago police department (Department), the following witnesses testified. James Walsh, an employee of American Institute for Drug Detection (AIDD), operated an EMIT instrument used for drug screening. On February 26, 1986, he ran a test on petitioner’s urine specimen, which indicated the presence of cocaine in the sample. The parties stipulated to the specimen’s chain of custody. Walsh did not run a second test on the specimen. The EMIT test has a 5% false positive rate.

Joyce Mah, employed by AIDD as an administrative supervisor, calibrated the subject EMIT machine on February 26, 1986, at 7 a.m. She performed a gas chromatography and mass spectrometer (gc/ms) test on petitioner’s urine specimen on February 27, which confirmed the presence of cocaine metabolite.

Jan Johnson, senior toxicologist at AIDD, personnel supervisor, reviewer and certifier of all data results generated in the lab, explained that the EMIT test detects the presence of drugs or chemicals in the specimen. The gc separates chemicals by properties of molecular weight and polarity, while the ms fragments molecules and measures the intensity of the ions produced from that fragmentation. Based on the graphs and data taken from the tests run on petitioner’s specimen, Johnson stated that both the EMIT and the gc/ms machines were properly calibrated. The results showed that cocaine metabolite was present in the specimen. The gc/ms test is used as a confirmation test because the EMIT test has a 5% margin of error.

Petitioner testified as an adverse witness. He joined the Chicago police department on February 27, 1978, and was on suspension at the time of the hearing. He provided a urine specimen on February 15,1986.

The Department thereafter rested its case. Petitioner’s motion for a finding in his favor was taken under advisement.

In his own behalf, petitioner testified that his first police assignment was as a patrolman in the first district, where he worked for three years. He was then transferred to Cabrini Green and subsequently reassigned to the public housing unit south. He did not use cocaine prior to February 15, 1986, and had never used it. He admitted, however, that at the time of testing he had had a drinking problem and “would blackout because I was drinking and *** taking medicine for my headaches.” During this period, petitioner drank a pint of cognac a day and was taking over-the-counter medicines. Also, he drank three different types of herbal tea.

Prior to the suspension, petitioner stopped drinking. The parties stipulated that on February 16, 1986, petitioner went to Michael Reese Hospital and had another drug test conducted, which was negative for the presence of cocaine.

Following argument by counsel representing both parties, the hearing officer took the case under advisement.

Transcripts of the hearing were forwarded to respondent members, who subsequently found petitioner guilty on each charge and ordered his discharge on April 15, 1988. Petitioner thereafter sought administrative review (111. Rev. Stat. 1987, ch. 110, par. 3 — 103) in the circuit court.

On June 28, 1988, petitioner moved for remand, alleging that newly discovered evidence existed relative and material to the charges against him. Attached to the motion was the sworn statement of one Cornell Smith. Assertedly, Smith put cocaine in a drink accidentally consumed by petitioner at the funeral of a mutual family friend. The court granted the motion. Respondents’ hearing officer Hall held another hearing on November 29,1988.

At the November hearing, Smith testified that he had been a narcotics user from 1971 through 1986. He had been arrested numerous times and was convicted three times. Smith knew petitioner for over 30 years. Petitioner was a friend of Smith’s younger brother, Larry. On February 13, 1986, Smith attended services at a funeral home on 79th and Wabash. After the service, Smith, who had been drinking that day, went out to the parking lot and drank some more whiskey with approximately 10 other men, including petitioner. The men drank from disposable cups, which all looked alike. Smith had a half gram of what he believed to be cocaine with him that night, and he put some in his drink because he did not want anyone to know he was doing it. After taking a sip, he put the drink down on the hood of a car, and others followed suit. Petitioner, who was talking with someone, put his cup down next to Smith’s cup and then picked up Smith’s cup by mistake. Smith did not tell petitioner that he had the wrong cup “because by him drinking whiskey the way he was and doing cocaine, I didn’t think it was going to hurt him. I said I will sit back and watch him trip.” Petitioner went home shortly after the incident.

During the next two years, Smith sought drug abuse treatment. He did not see petitioner again until May 1988, when the two met by chance on the street. Smith had heard that petitioner’s wife had been killed and extended condolences. Smith had also heard that petitioner had been fired by the police department, but did not know the circumstances surrounding the termination. He then told petitioner about the incident at the funeral home because, as part of his drug treatment, he had to apologize to “those he had wronged.” Petitioner became angry and told Smith to contact his lawyer.

Dr. John Ambre, associate professor of internal medicine at Northwestern University, reviewed the data from petitioner’s drug test, which revealed the presence of a very small amount of cocaine. In his opinion, the ingestion of cocaine in a drink as claimed could produce the results which were reflected in petitioner’s records. If another test was conducted the next day, the test may not register positive. On cross-examination, Dr. Ambre conceded that he had testified previously before the Board between 15 and 20 times and this was the first time he had supported the correctness of AIDD’s results. He criticized AIDD in the past because it is an “amazingly bad laboratory.” He has always testified on behalf of the employee subject to discharge.

Petitioner again testified in his own behalf. His testimony mirrored Smith’s. Petitioner knew Smith since he was five years old and was a good friend of his brother, Larry. After the funeral, petitioner and his wife stopped in at a birthday party, but did not stay long. At home, petitioner experienced difficulty in sleeping. He denied knowing that he had ingested cocaine on February 13,1986.

After reviewing the November hearing transcript, the Board reaffirmed its previous April 1988 ruling in the “Findings and Decision” it issued December 19, 1988.

Following briefing and argument on administrative review, the circuit court affirmed the Board’s findings and decision orally and in a draft order date stamped by the clerk on October 27, 1989. The order was signed by the judge in what appears to be the judge’s handwriting, as of October 29, 1989. On November 13, 1989, petitioner moved to “amend the Petition for Administrative Review *** to conform to the briefs and arguments of the parties.” He sought to incorporate into his petition his argument that the failure of the Board’s hearing officer to advise as to the credibility of the witnesses and the failure of the Board to adopt findings of the hearing officer deprived petitioner of a full and fair hearing. This argument was advanced at the October 27 hearing and rejected by the court. At the hearing on the motion, petitioner’s counsel stated that he “was trying to preserve the issue that the hearing officer did not advise the Board as to the issue of credibility and the Board did not see or hear the witnesses, which is what we argued before you.” The motion was allowed in a supplemental order entered on November 13, 1989. The notice of appeal was filed on November 28, 1989.

I

The Board initially asserts that this court lacks jurisdiction to hear the appeal. This issue was raised by the Board in a motion to dismiss the appeal, which was first denied by this court. The order was later vacated and still later reinstated.

Petitioner advances two arguments in support of the propriety of entertaining this appeal. First, the November 13, 1990, order “disposed of a timely filed post-trial motion” within the meaning of Supreme Court Rule 303 (107 111. 2d R. 303). In all nonjury cases, a motion qualifying as a “post-trial motion” must specifically request one of the forms of relief listed in subsection (a) of section 2 — 1203 of the Code of Civil Procedure (Code) (111. Rev. Stat. 1987, ch. 110, par. 2 — 1203), which include (1) rehearing, (2) retrial, (3) modification of judgment, (4) vacation of judgment, or (5) “for other relief.” (In re Marriage of Hillinger (1986), 146 Ill. App. 3d 549, 555, 497 N.E.2d 112.) None of the first four forms of relief enumerated in the statute were sought by petitioner. The “other relief” referred to in subsection (a) must be similar in nature to the forms of relief specified immediately preceding the reference. Fultz v. Haugan (1971), 49 Ill. 2d 131, 273 N.E.2d 403. See also Ill. Ann. Stat., ch. 110, par. 2 — 1203, Historical & Practice Notes, at 366 (Smith-Hurd 1983).

Petitioner intended to amend his complaint to conform with the proofs after trial, a section 2 — 616(c) motion to amend under the Code (111. Rev. Stat. 1987, ch. 110; par. 2 — 616(c)). Such a motion may be filed at any time; however, it is not similar in nature to the “other relief” referred to in section 2 — 1203 and is not a motion directed against the judgment. (See Marsh v. Evangelical Convenant Church (1990), 138 Ill. 2d 458, 461-62, 563 N.E.2d 459; Fultz v. Haugan, 49 Ill. 2d at 136; Sears v. Sears (1981), 85 Ill. 2d 253, 258, 422 N.E.2d 610.) The November 13 order, by its own terms, merely “supplements” the court’s October decision and was entered in response to a motion not directed against the judgment. Entry of the November 13, 1989, order, therefore, does not control the jurisdictional issue raised here.

Petitioner’s second argument is that the October 27 order was not signed by the judge until October 29; therefore, his notice of appeal was timely filed. The record reveals that the court heard argument on the petition for administrative review on October 27, 1989. The court thereafter orally gave its ruling, denying the petition. Counsel for the Board then asked whether he should prepare a draft order. The court agreed, stating “that’s the best way.” The Board’s attorney thereafter drafted an order to reflect that the Board’s decision was affirmed, based on the reasons stated in open court. Although it appears that the courtroom clerk stamped “October 27, 1989,” on the draft order and returned copies of the order to both parties, the original order appears to have been signed by the judge on October 29, 1989, according to the handwritten date affixed to the order filed. No explanation for this discrepancy in dates was ever sought from the judge himself; instead, both parties have contented themselves with speculative and circumstantial interpretations. In the absence of direct clarifying evidence, we elect to assume that the order was signed by the judge on the handwritten date it bears, October 29, 1989, and was thereafter filed. (107 111. 2d R. 272.) The notice of appeal, therefore, will be treated as timely filed on November 28, 1989.107 111. 2d R. 301.

II

Petitioner claims the findings of the Board are against the manifest weight of the evidence and should have been so regarded by the circuit court.

The undisputed evidence in the record here is that the urinalysis of petitioner’s specimen revealed the presence of cocaine metabolite in his system. The controversy centers upon the weight, if any, to be given petitioner’s denial of ever using cocaine and Smith’s averment that he laced cocaine into a drink ultimately consumed by petitioner. This testimony, petitioner argues, was unimpeached, as well as the scientific evidence presented. Although Smith was not impeached by outright contradiction, the record reveals several bases upon which the Board could have deemed his testimony impeached, including the facts that he was a former drug addict (see People v. Givens (1985), 135 Ill. App. 3d 810, 482 N.E.2d 211); he and his brother were petitioner’s long-time friends (see People v. Strickler (1977), 47 Ill. App. 3d 419, 362 N.E.2d 28); and he had an extensive criminal history, which included three felony and misdemeanor convictions, and numerous arrests. The Board also may have regarded with suspicion the fortuitous timing of Smith’s reappearance in the case, after a two-year hiatus, recalling in minute detail the subject event, although he admittedly had been drinking and using drugs that day and evening. Where a witness is successfully impeached, uncorroborated parts of his testimony may be disregarded by the trier of fact. (People v. Garrett (1976), 44 Ill. App. 3d 429, 358 N.E.2d 364.) No corroboration of Smith’s description of lacing his drink with cocaine appears of record, although he allegedly performed this act in the presence of his friend, Jesse, who had been standing close by.

Petitioner also maintains that the evidence did not establish his knowing and intentional ingestion of cocaine. A similar argument was rejected in Schlobohm v. Rice (1987), 157 Ill. App. 3d 90, 96, 510 N.E.2d 43. Recognizing that the element of knowledge is frequently not susceptible to direct proof and may be proved by circumstantial evidence from which an inference of knowledge may be reasonably drawn, this court there upheld the use of the drug tests to show the clear and logical implication of prior knowledgeable possession. (See People v. Harris (1972), 52 Ill. 2d 558, 560, 288 N.E.2d 385.) A like result is reached in the case at bar.

Based upon the foregoing analysis, the findings of the Board are not against the manifest weight of the evidence. Rispoli v. Police Board (1989), 188 Ill. App. 3d 622, 635, 544 N.E.2d 1063.

Ill

Petitioner lastly urges that his right to a full and fair due process hearing was denied because the hearing officer failed to advise the decision maker as to his impressions, findings, and conclusions regarding the conflicting testimony.

It is not clear from this record that the hearing officer and the Board did not jointly consider the factual issues at the initial hearing and at the hearing on remand. The three-page “Findings and Decision” reached in this case on April 15, 1988, and the four-page “Findings and Decision” rendered on December 19, 1988, reveal that the hearing officer signed the last pages of the findings in each instance and the Board members signed the last pages, entitled “Decision,” setting forth the case disposition based upon those findings. Petitioner admits that the Board’s usual procedure is to make transcripts available for the members of the Board to read prior to making their decision. There is no evidence that this procedure was not followed here, nor is there any evidence that the Board did not confer with the hearing officer. Because of his signature on the last pages comprising the “Findings” in this case, the assumption that the hearing officer was involved in the factual considerations to be evaluated is stronger than the conjecture that he was not. The presence of his signatures on the findings, but not the decisions, are otherwise inexplicable.

Assuming, arguendo, that the hearing officer did not participate in deciding the factual issues underlying the disposition of the case, the authorities cited by petitioner, Southern Illinois Asphalt Co. v. Environmental Protection Agency (1973), 15 Ill. App. 3d 66, 303 N.E.2d 606, aff’d (1975), 60 Ill. 2d 204, 326 N.E.2d 406, Starnawski v. License Appeal Comm’n (1981), 101 Ill. App. 3d 1050, 428 N.E.2d 1102, and Rispoli v. Police Board (1989), 188 Ill. App. 3d 622, 544 N.E.2d 1063, do not yield in his favor the result sought.

In Southern Illinois Asphalt, the court ruled that it would be “better practice” to have the hearing officer report his conclusions and impressions to the fact-finding body; however, the court did not conclude that due process required such a result. (Southern Illinois Asphalt, 15 Ill. App. 3d at 80-81.) In Starnawski, the court noted that the Municipal Code of Chicago, chapter 101, section 27, provided that the hearing officer “shall report his findings to the mayor.” (Emphasis added.) (Starnawski, 101 Ill. App. 3d at 1054.) Here, the hearing officer “may *** make findings of fact, conclusions of law and recommendations to the Police Board following the hearing.” (Emphasis added.) (Chicago Municipal Code §30 (1990).) Further, the court held in Starnawski that the licensor’s due process rights were not violated by the commission’s failure to acknowledge the hearing officer’s oral or written report. This issue was discussed with relation to the procedures followed by the Chicago Police Board in Rispoli. There, the court noted the absence of evidence in the record showing whether, or not, the Board complied with what that court thought was mandated by Southern Illinois Asphalt. (Rispoli, 188 Ill. App. 3d at 634.) Petitioner there, however, was deemed to have waived the issue and, once again, the due process question was not reached.

Due process requires a proceeding with fairness insured by procedural safeguards including proper notice and an opportunity to be heard. (Ciechon v. City of Chicago (7th Cir. 1982), 686 F.2d 511.) Although some courts may consider it a “better practice” for an administrative tribunal which has not itself heard the evidence to base its decision on a report made by the hearing examiner, Illinois courts have not held this to be a due process requirement. (American Welding Supply Co. v. Department of Revenue (1982), 106 Ill. App. 3d 93, 98, 435 N.E.2d 761.) Due process is satisfied when the decision-making body considers the evidence contained in the report of proceedings before the hearing officer and bases its determination upon it; therefore, the due process principle that the “one who decides must hear” does not prohibit the practical administrative procedure of having a hearing officer take evidence and the decision maker render findings, as long as the decision maker considers the evidence that justifies it. (Morgan v. United States (1936), 298 U.S. 468, 481-82, 80 L. Ed. 1288, 1295, 56 S. Ct. 906, 911-12; Homefinders, Inc. v. City of Evanston (1976), 65 Ill. 2d 115, 128-29, 357 N.E.2d 785; American Welding Supply Co., 106 Ill. App. 3d at 98-99. See also McCabe v. Department of Registration & Education (1980), 90 Ill. App. 3d 1123, 413 N.E.2d 1353, cert. denied (1981), 454 U.S. 838, 70 L. Ed. 2d 119, 102 S. Ct. 143.) Indeed, “ ‘[njothing in *** [Morgan] suggests that the decider must actually hear the witnesses or be furnished with a report on their credibility.’ ” (Emphasis added.) (Guerrero v. New Jersey (3d Cir. 1981), 643 F.2d 148, 150, quoting Utica Mutual Insurance Co. v. Vincent (2d Cir. 1967), 375 F.2d 129, 132, cert. denied (1967), 389 U.S. 839, 19 L. Ed. 2d 102, 88 S. Ct. 63.) Even where a report by the hearing officer is made to the decision maker, the latter may, constitutionally, disregard it where its own resolution is supported by substantial evidence. United States v. Raddatz (1980), 447 U.S. 667, 680, 65 L. Ed. 2d 424, 436, 100 S. Ct. 2406, 2414-15; Moore v. Ross (2d Cir. 1982), 687 F.2d 604, 608, cert. denied (1983), 459 U.S. 1115, 74 L. Ed. 2d 969, 103 S. Ct. 750.

The instant record reveals that each member of the Board was to receive a transcript of proceedings. In its “Findings and Decision,” the Board reaffirmed its earlier ruling “after considering the new testimony as ordered.” Each Board member signed the “Decision.” Petitioner does not urge error concerning notice or the impediment of his right to be heard. Accordingly, the hearing complied with the requirements of due process.

For the reasons set forth above, the circuit court’s order, affirming the decision of the Chicago Police Board, itself must be affirmed.

Affirmed.

DiVITO, P.J., and SCARIANO, J., concur.


author: JUSTICE WHITE

text:
    RIDGEVIEW CONSTRUCTION COMPANY, INC., et al., Plaintiffs-Appellees, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee, et al., Defendants (Heller Financial Services, Inc., f/n/a Abacus Mortgage Investment Company, Defendant-Appellant; American National Bank and Trust Company of Chicago, as Trustee, Intervening Defendant-Appellant).
    First District (3rd Division)
    No. 1—89—0592
    Opinion filed November 7, 1990.

      Rosenthal & Schanfield, of Chicago (Stephen P. Kikoler and David Manteufel, of counsel), for appellant.
    Herbert Lesser, Mark Hellner, of Rosenberg, Opdycke, Gildea, Hellner & Kelly, and Michael R. Flaherty and Michael J. Mueller, both of Keck, Mahin & Cate, all of Chicago, for appellees.
   JUSTICE WHITE

delivered the opinion of the court:

Appellants, Heller Financial Services, Inc., and American National Bank, as trustee under trust No. 104943 — 01, appeal from an order of the circuit court granting summary judgment in favor of appellees Ridgeview Construction Company, Inc., David E. McDaniel Company, Inc., Jones & Brown Company, Inc., and J.S. Reimer, Inc. Appellants argue that the court erred in finding that mechanics’ liens filed by appellees had priority over the interests of appellants.

On December 31, 1980, the Heritage County Bank entered into a real estate sales contract with the American National Bank & Trust Company of Chicago as trustee under trust No. 51444 (Trust). The sole beneficiary of the Trust was Michael Wellek. Under the contract, the Trust agreed to purchase from Heritage property described as lot 12 in the K&K Industrial Park Subdivision in Cook County, Illinois. The contract between the Trust and Heritage acknowledged that the trust intended to construct a warehouse on the property and contained a provision stating:

“Purchaser agrees that it shall enter into no Construction Contract for construction of the Improvements that does not contain so-called ‘no-lien’ provisions. Seller shall permit Purchaser to place said contract of record such that no contractor or subcontractor shall have the right to assert any mechanic’s lien or materialmen’s lien against title to the Premises.”

In August 1981, the Trust entered into a general contract with WWI Corporation for the construction of a warehouse on lot 12. WWI was owned by Richard Wanland.

The Trust and WWI executed a document entitled “Abbreviated Form of Agreement Between Owner and Contractor.” This document contained a provision stating:

“The Contractor, WWI Corporation, does hereby fully and completely waive and release, for itself, its successors and assigns, and for all of its subcontractors, and their respective subcontractors, any and all claim of, or right to, a mechanic’s lien, under the Statutes of Illinois, against, or with respect to, the above-described premises ***.”

The document also provided that work on the warehouse was to be commenced on September 1, 1981, and completed not later than January 1, 1982; that WWI would be paid in one lump sum upon completion of the warehouse; that payment could be withheld if the work was not carried out in accordance with the contract; and that the agreement could be cancelled if the sale from Heritage to the Trust i was not completed.

On September 8, 1981, a document entitled “Stipulation, Waiver of Rights to File Mechanics’ Lien” was filed with the recorder of deeds office of Cook County. The document stated that a general contract had been entered into between the Trust and WWI and recited the terms of the no-lien provision.

Subsequently, WWI entered into subcontracts with several companies, including appellees. J.S. Reimer’s contract was dated October 10, 1981; Jones & Brown’s contract was dated October 26, 1981; Ridgeview’s contract was dated November 4, 1981; and McDaniel’s contract was dated July 30,1982.

All of the subcontracts contained a reference to the general contract between the trust and WWI and stated that the general contract was available for the subcontractors’ review. The subcontracts also stated:

“All parties hereby agree that all of the terms and the general conditions, and other conditions of the Abbreviated Form of Agreement between Owner and Contractor, dated August 31, 1981, between [the Trust] and [WWI] are incorporated in and made a part of this Agreement.”

On June 15, 1982, Jones & Brown filed a notice and claim for lien against lot 12. The lien claim alleged that Jones & Brown was owed $215,321 for work performed on the property.

In the early part of October 1982, the warehouse was completed and a certificate of occupancy was issued. However, appellees were not paid for the work they performed. On November 16, 1982, Wellek’s attorneys informed WWI that payment for the building would be withheld because WWI was in default under the provision of the general contract requiring completion by January 1, 1982.

On November 29, 1982, J.S. Reimer filed a mechanics’ lien claim alleging it was owed $162,980. On December 1, 1982, the trust executed a mortgage on lot 12 to Abacus Mortgage Investment Company. It appears that this mortgage was recorded on December 15, 1982. On December 2, 1982, Ridgeview filed a lien claim alleging it was owed $197,167. Two weeks later, on December 17, 1982, McDaniel’s filed a lien claim alleging it was owed $65,950.

On December 22, 1982, Ridgeview and McDaniel filed a “Complaint in Mechanics’ Lien Foreclosure” seeking to recover the amounts they were owed. The named defendants in the action included American National Bank & Trust Company as trustee under trust No. 51444, Michael Wellek, WWI, Jones & Brown, and J.S. Reimer. Jones & Brown and J.S. Reimer answered and filed counterclaims to foreclose their mechanics’ liens. Subsequently, the complaint and counterclaims were amended to include Abacus as a defendant. Appellant Heller Financial Services is the successor in interest to Abacus.

On December 13, 1983, the Trust and Wellek filed a motion for summary judgment on the ground that the mechanics’ liens were barred by the no-lien clause of the general contract between WWI and the Trust. This motion was granted on January 3, 1984.

Ten days later, Ridgeview and McDaniel filed an amended complaint alleging that the general contract between the Trust and WWI was a sham and that, therefore, they should be treated as prime contractors, not subcontractors. Ridgeview and McDaniel also contended that, because the general contract was spurious, the no-lien provision it contained was of no force and effect. J.S. Reimer and Jones & Brown also amended their foreclosure complaints to allege collusion between the Trust and WWI.

On July 9, 1987, after the Trust defaulted on the 1982 mortgage, Heller Financial Services obtained a judgment of foreclosure. Following foreclosure, lot 12 was sold to appellant American National Bank as trustee under trust No. 104943 — 01.

In February 1988, Heller filed a motion for summary judgment against appellees on the ground that its mortgage had priority over appellees’ mechanics’ liens. Heller based its motion on the circuit court’s memorandum order of January 3, 1984, in which the court stated that the no-lien clause contained in the general contract and the stipulation filed with the recorder of deeds were valid under section 21 of the Mechanics’ Liens Act (111. Rev. Stat. 1983, ch. 82, par. 21).

Appellees filed a motion for partial summary judgment seeking a ruling that the no-lien clause and the stipulation were invalid. Appellees’ motion alleged that WWI was the agent and alter ego of Wellek and the Trust and that the no-lien clause and the stipulation were part of a scheme to defraud appellees. Appellees further alleged that because WWI was the alter ego of Wellek and the Trust, the no-lien clause and the stipulation were not executed by an owner and contractor as required by section 21 and, therefore, they were unenforceable and could not be relied upon to give Heller priority over appellees.

On September 28, 1988, the trial court entered an order denying appellants’ motion for summary judgment and granting appellees’ motion for partial summary judgment. The court found: (1) that the no-lien clause and the stipulation were invalid and unenforceable and without legal effect; and (2) that, because of the intertwined activities and collusion of Michael Wellek and WWI, WWI should be treated as an agent for Wellek and the appellees treated as “prime original contractors.” On November 9, 1988, the court entered a second order finding that appellees’ mechanics’ liens had priority over appellant’s mortgage lien.

Appellants filed a motion for reconsideration of both orders. In their motion, appellants referred to the court’s January 1984 order and argued that even if the court correctly found that the no-lien clause and the stipulation were fraudulent, the documents should be held valid as to appellants.

On February 17, 1989, the court entered a memorandum opinion denying appellants’ motion. In its memorandum, the court stated that its orders of September and November 1988 were based on information that was unavailable at the time it made its January 1984 ruling upholding the validity of the no-lien clause. The court found that appellants were not entitled to priority over appellees because appellants had chosen to ignore the notice afforded by the mechanics’ lien claims that had been filed before appellants’ mortgage was recorded.

In this appeal from the court’s rulings, both parties raise a number of arguments concerning the trial court’s finding that appellees should be treated as prime contractors because of the intertwined activities of Wellek and WWI. Wellek and WWI are not parties to this appeal, and for purposes of our decision we are not required to determine the propriety of the trial court’s finding that they acted in collusion. The issue we must determine is whether section 21 of the Mechanics’ Liens Act will bind a lien claimant to a contract provision waiving liens against the subject property where it is alleged that the contract was procured through fraud and where a third party has advanced funds in reliance on the lien waiver.

Section 21 provides in part:

“If the legal effect of any contract between the owner and contractor is that no lien or claim may be filed or maintained by any one, such provision shall be binding; but the only admissible evidence thereof as against a sub-contractor or material man, shall be proof of actual notice thereof to him before any labor or material is furnished by him; or proof that a duly written and signed stipulation or agreement to that effect has been filed in the office of the recorder of the county or counties where the house, building or other improvement is situated, prior to the commencement of the work upon such house, building or other improvement, or within 10 days after the execution of the principal contract ***.” 111. Rev. Stat. 1983, ch. 82, par. 21.

We have been unable to find any Illinois decision that deals with the precise issue presented in this case. However, in Decatur Lumber & Manufacturing Co. v. Crail (1932), 350 Ill. 319, 183 N.E.2d 228, the supreme court held that it would be inequitable to allow a lien claimant to repudiate its execution of a lien waiver which was relied upon by a mortgagee in paying out the proceeds of a loan. In that case, after the lien waiver was executed, the owner’s check in payment of the lien claimant’s bill was dishonored. In ruling that the mortgage lien had priority over the mechanics’ lien, the court stated that it is a fundamental doctrine in equity that where one of two innocent persons must suffer by the fraud of a third person, the loss must fall upon him who by his conduct put it in the power of such third person to cause the injury.

The supreme court’s holding in Decatur was relied upon in Richard’s Lumber & Supply Co. v. National Bank (1975), 32 Ill. App. 3d 835, 336 N.E.2d 820. There, Richard’s performed work on property owned by one of its employees. The employee later stole lien waivers signed in blank by Richard’s president, filled in the waivers, and used them to obtain a mortgage from the National Bank of Joliet. The court found that Richard’s made it possible for its employee to commit the fraud by leaving the signed waivers in a place where the employee could obtain them. The court stated that where the bank paid money in reliance on the waivers and where the lienors sought to show the invalidity of the waivers on grounds of fraud not involving the bank, there was a basic presumption of innocence of the bank absent some indication from the facts that the bank knew about, or should have known about, the employee’s fraudulent conduct. Richard’s, 32 Ill. App. 3d at 838; see Stringert & Bowers, Inc. v. Online Systems, Inc. (1975), 236 Pa. Super. 196, 345 A.2d 194; Toll v. Beckerman (1930), 299 Pa. 1, 148 A. 904 (holding that it is only where a contract is made in bad faith for the purpose of misleading and defrauding subcontractors and materialmen that a stipulation waiving the right to file a lien will be held invalid and then only as to those who were parties to the fraud or had knowledge of it before they acquired their rights in the property).

Appellants argue that it would be inequitable to allow appellees, who knowingly entered into no-lien contracts, to transform their contracts retroactively to the detriment of appellants. Appellants contend that even if the appellees’ contracts were void because of the alleged fraud, appellees’ interest should be subordinate to those of innocent third parties such as appellants.

Appellees argue that at the time they entered into their subcontracts with WWI there was nothing to indicate that the general contract was not valid and, therefore, they reasonably relied on their subcontracts with WWI. Although they do not claim that appellants were aware of the alleged fraud and collusion between Wellek and WWI, appellees argue that appellants were not innocent purchasers and, therefore, their mortgage should not be given priority over appellees’ liens.

In arguing that the general contract was invalid because of fraud, appellees point to the alleged “side agreement” between Wellek and WWI; the general contract provision that no payment would be made until construction was completed, which appellees claim prevented periodic payments to them during construction; the general contract’s “impossibly short” construction period; the execution of subcontracts after the completion date specified in the general contract; the clause in the general contract allowing cancellation if the purchase from Heritage was not completed; the provision in the subcontracts binding the subcontractors to the terms of the general contract; and the failure to require WWI to obtain a performance bond for the benefit of the subcontractors. We find that, with the exception of the alleged side agreement, appellees were on notice of all of these factors.

The subcontracts executed by appellees all contained language incorporating the terms of the general contract between Wellek and WWI. Where a subcontract specifically adopts the provisions of a general contract, those provisions become a part of the general contract as if they were expressly written into it. (Turner Construction Co. v. Midwest Curtainwalls, Inc. (1989), 187 Ill. App. 3d 417, 543 N.E.2d 249; Preski v. Warchol Construction Co. (1982), 111 Ill. App. 3d 641, 444 N.E.2d 1105.) Accordingly, appellees had a duty to learn or know the terms of the general contract before they signed their subcontracts. Leon v. Max E. Miller & Son, Inc. (1974), 23 Ill. App. 3d 694, 320 N.E.2d 256.

Had appellees examined the general contract before entering into their subcontracts they would have discovered many of the factors that they now allege demonstrate fraud on the part of Wellek and WWI. Instead, appellees freely entered into the contracts without regard to the fact that they were being bound to terms such as the no-lien agreement or a provision allowing payment to be withheld if the contract terms, including the completion date, were not complied with. Appellees’ failure to make themselves aware of this latter provision is demonstrated by their actions in entering into subcontracts shortly before the completion date and, in one case, seven months after the date had passed.

In arguing that they should be relieved from the effects of their own negligence because appellants were not innocent parties, appellees contend that appellants were in a better position to discover the alleged fraud in December 1982 than appellees were one year earlier. Appellees claim that the mechanics’ liens filed against the property created a duty on the part of appellees to inquire before making their mortgage. Appellees further contend that if appellants had made an inquiry, they would have learned of the intertwined relationship between Wellek and WWI.

It is impossible for this court to determine what appellants would have discovered in December 1982 had they made an inquiry into the basis for appellees’ liens. However, we do not find compelling appellees’ claim that appellants were in a better position to discover the alleged fraud.

When appellants’ mortgage was made, the public record contained a stipulation that no liens arising from the contract between Wellek and WWI would be filed against the property, and two mechanics’ liens filed by subcontractors of WWI in an apparent violation of the no-lien stipulation. The lien claims stated only that appellees had not been paid. There was nothing in them that would indicate that the general contract might be fraudulent or the stipulation void. It was not until January 1984 that appellees alleged that the general contract and the stipulation were fraudulent. Thus, no allegations of fraud had been made at the time appellants obtained their interest in lot 12 and appellees themselves were unable to uncover the alleged fraud until more than a year later and then only after extensive discovery.

We find that appellees have failed to establish that appellants knew or should have known of the fraudulent activities of Wellek and WWI in 1982. We also find that it was appellees’ actions in contracting away their rights to mechanics’ liens that led to appellants’ advancement of a mortgage. Therefore, between the parties, the loss should fall on appellees. Decatur, 350 Ill. at 325; Richard’s, 32 Ill. App. 3d at 837.

Here, as in Richard’s, appellants paid money in reliance on the waivers and appellees attempted to show that the waivers were invalid on grounds of fraud not involving appellants. We find, as the court did there, that because appellees have failed to rebut the presumption of appellants’ innocence with evidence that appellants were aware of or should have been aware of the fraud, appellants’ mortgage should have priority over appellees’ mechanics’ liens.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and this cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

RIZZI and FREEMAN, JJ., concur.


author: JUSTICE FREEMAN

text:
    LAWRY’S THE PRIME RIB, INC., et al., Plaintiffs-Appellants, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO et al., Defendants (Wiss, Janney, Elstner and Associates, Inc., Defendant-Appellee).
    First District (3rd Division)
    No. 1—89—2356
    Opinion filed November 7, 1990.

      Zacarías R. Chacon and Michael J. Murphy, both of Grotty & Chacon, of Chicago, for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Kevin R. Sido, Stephen R. Swofford, and Michael J. Flaherty, of counsel), for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

Plaintiffs, the owners and occupiers of property located at 100 East Ontario Street, Chicago, filed a 23-count complaint seeking damages for structural damage to their property which allegedly resulted from excavation on adjoining property located at 101 East Erie, Chicago (the Erie property). Three counts of the complaint were directed at Wiss, Janney, Elstner & Associates, Inc. (hereinafter defendant). On defendant’s motion, the trial court granted it summary judgment on count IX of plaintiff’s complaint, which alleged a cause of action under “An Act to prescribe the duty of an owner or occupant of lands upon which excavations are made in reference to the furnishing of lateral and subjacent support to adjoining lands and structures thereon” (the Act) (111. Rev. Stat. 1987, ch. llU/a, par. 3301 et $eq.). Two other counts against defendant, XIX and XXII, for negligence and willful and wanton conduct, respectively, remain pending below. Plaintiffs appeal the summary judgment for defendant on count IX of their complaint.

Plaintiffs’ complaint, in pertinent part, alleged the following: (1) in paragraph 14, that the owners of the Erie property entered an agreement with certain defendants to raze the structure then existing on the property and to construct a 22-story office building in its place; (2) in paragraph 16, that those defendants retained defendant to design, supervise and inspect the installation of the earth retention system to be used in connection with the excavation of the Erie property; (3) in paragraph 18, that all the defendants began demolishing and removing the structure then existing on the Erie property; (4) in paragraph 20, that all the defendants failed to provide adequate lateral and subjacent support to plaintiffs’ property in connection with the planning, design, performance, supervision, and inspection of the excavation of the Erie property; and (5) in paragraph 60, that appellee, as designer and installer of the earth retention system for the excavation of the Erie property, was a “possessor” of the property as defined and intended in the Act.

In its answer to the complaint, which was not verified, defendant admitted the allegations of paragraph 16 but denied the allegations of paragraphs 18, 20 and 60. In addition, defendant denied that, as plaintiffs alleged in count XIX, it owed plaintiffs a duty of reasonable care in designing, supervising and inspecting the installation of the earth retention system used in the excavation of the Erie property; it also denied the breaches of that duty alleged therein. Finally, it denied that, as plaintiffs alleged in count XXII, it was responsible for the design, installation and inspection of the earth retention system used in the excavation of the Erie property.

Defendant moved for summary judgment based on the affidavit of P.L. Popovic, a licensed structural engineer and defendant’s employee. In his affidavit, Popovic stated that: (1) he had contracted on defendant’s behalf with the general contractor for the construction project on the Erie property “to provide consulting engineering services pertaining to the design of a temporary earth retention system to be constructed by the general contractor” thereon; (2) the scope of professional services defendant provided under that contract was limited to the design of the earth retention system to be built by the general contractor; and (3) defendant was not involved in any aspect of the on-site excavation at the Erie property. Defendant argued, based on Popovic’s affidavit, that it was not a possessor of the Erie property for purposes of the Act.

In response, plaintiffs argued, inter alia, that questions of fact existed as to whether defendant’s responsibilities and activities as consulting engineer for the Erie property excavation and for the earth retention system used therein rendered it a possessor of the Erie property within the meaning of the Act. Specifically, plaintiffs argued that, contrary to defendant’s argument, neither physical presence during nor control of an excavation was required for liability under the Act. Rather, inasmuch as the objective of the Act was to control the activities of parties involved in an excavation project, defendant’s activities of designing, supervising and inspecting the installation of the earth retention system used on the Erie property, for which it had admitted it had been retained, were clearly the kind of activities encompassed within the Act.

Subsequently, defendant moved to amend its answer to paragraph 16 of plaintiffs’ complaint to substitute, for the original admission of all the allegations thereof, an admission only of the allegation that it had been retained to design the earth retention system used in the Erie property excavation. Defendant asserted that its original admission of paragraph 16 had been inadvertent. Defendant replied to plaintiffs’ response to its motion for summary judgment on the basis of, inter alia, its amended answer. After allowing defendant’s motion to amend its answer, the trial court granted its motion for summary-judgment.

Opinion

On appeal, plaintiffs first argue that the pleadings, depositions and admissions on file before the trial court allowed defendant to amend its answer to paragraph 16 of the complaint raised an issue of material fact concerning whether defendant was a “possessor” of the Erie property within the meaning of the Act. Secondly, they argue that, to the extent that the amended answer to paragraph 16 eliminated a genuine issue of material fact concerning defendant’s status, the trial court abused its discretion in allowing defendant to amend its original admission that it had been retained to design, supervise and inspect the installation of the earth retention system used on the Erie property.

The linchpin of plaintiffs’ first argument is defendant’s original admission that it had been retained to design and to supervise and inspect the installation of the earth retention system used in the Erie property excavation. That linchpin is rendered moot if we disagree with plaintiffs that the trial court abused its discretion in allowing defendant to file an amended answer to paragraph 16 of plaintiffs’ complaint denying that it had been retained to supervise and inspect the installation of the earth retention system used in the Erie property excavation. As such, we will pass on the merits of plaintiffs’ second argument first.

In asserting error in allowing defendant to amend its answer, plaintiffs note that, generally, amendment of pleadings should not be permitted if it concerns matters which the pleader knew at the time the original pleading was filed and the pleader offers no good reason for not including such matters in the original pleading. (Morris v. City of Chicago (1985), 130 Ill. App. 3d 740, 474 N.E.2d 1274.) In this regard, plaintiffs assert that defendant should have been aware of exactly what it was hired to do in connection with the Erie property excavation when it filed its original answer in December 1986. They further argue that defendant’s reason for the amendment, that its original admission of paragraph 16 in its entirety was due to inadvertence, is insufficient to “explain the reversal” in the amended answer.

We agree with plaintiffs that defendant must have known what it was hired to do in connection with the Erie property excavation when it filed its original answer. However, we cannot agree that its stated reason for seeking to amend that answer, i.e., inadvertence, was neither a good nor' sufficient reason therefor, especially in view of plaintiffs’ failure to explain why it was not.

Section 2 — 616(a) of the Civil Practice Law allows amendment of pleadings at any time before final judgment on just and reasonable terms. (111. Rev. Stat. 1987, ch. 110, par. 2 — 616(a).) This statute is to be liberally construed to allow cases to be decided on their merits rather than on technicalities. (Summar v. Indiana Harbor Belt R.R. Co. (1986), 147 Ill. App. 3d 851, 515 N.E.2d 130.) Moreover, the deci sion to allow amendment of pleadings is within the sound discretion of the trial court, and the test for determining whether it has abused that discretion is whether its decision furthers the ends of justice. An important factor in that test is whether the opposing party is surprised or prejudiced by the amendment. Deming v. Montgomery (1989), 180 Ill. App. 3d 527, 536 N.E.2d 150.

Applying the foregoing principles here, we conclude that the trial court did not err in allowing defendant to amend its original answer to paragraph 16 of the complaint. We agree with plaintiffs that defendant must have known when it filed that answer the role it had in the Erie property excavation. However, we cannot agree with plaintiffs that defendant’s justification for amending that answer, i.e., that its original admission of all the- allegations of paragraph 16 was due to inadvertence, was not a good or sufficient reason for the amendment. Cf. Colgan v. Premier Electrical Construction Co. (1981), 92 Ill. App. 3d 407, 414 N.E.2d 1364 (admissions in verified pleading bind the pleader after filing of amended pleading unless latter' pleading discloses that the admissions were made through mistake or inadvertence).

We are sufficiently convinced that defendant’s admission of all of the allegations of paragraph 16 was the result of mistake by the fact that defendant denied all of the other allegations of the complaint which were similar in substance to those of paragraph 16. The inherent contradiction in the admission of all the allegations of paragraph 16 and the simultaneous denial of all similar allegations in the remainder of the complaint clearly reveals that the former was inadvertent. In this regard, we find it unreasonable to conclude that the multiple denials of the allegations similar to those of paragraph 16, rather than the lone admission of the allegations of that paragraph, were the result of defendant’s inadvertence. Moreover, given those denials, we do not believe that allowing defendant to amend its original answer to paragraph 16 could have surprised or prejudiced plaintiffs.

As we noted above, plaintiffs’ first argument is that the pleadings, depositions and admissions on file before the trial court allowed defendant to amend its answer to paragraph 16 raised an issue of material fact concerning defendant’s status as a “possessor” of the Erie property under the Act. As we also noted above, the linchpin of that argument is'defendant’s admission, in its original answer to paragraph 16 of the complaint, that it had been retained to design and to supervise and inspect the installation of the earth retention system used in the Erie property excavation. However, as we have rejected plaintiffs’ contention of error in the trial court’s allowing defendant to amend that answer, that argument is rendered moot. As such, we need not pass on plaintiffs’ attempt, as part of that argument, to analogize defendant to a general contractor who is deemed a possessor of land for purposes of liability under the Act because he is actually involved in an excavation thereon. See Proud v. W.S. Bills & Sons, Inc. (1970), 119 Ill. App. 2d 33, 255 N.E.2d 64.

However, we do have to address plaintiffs’ final contention that, even if the trial court properly allowed defendant to amend its answer to paragraph 16 of the complaint, defendant’s earlier admission of all the allegations of paragraph 16 was still evidence in the case and sufficient to create a genuine issue of fact with respect to defendant’s status under the Act.

Defendant’s prior admission of the allegations of paragraph 16, having been part of an unverified answer, was not a binding judicial admission. (Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146.) However, plaintiffs are correct that it could still be used as an evidentiary admission against defendant for purposes of trial (Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146) or for purposes of deciding defendant’s motion for summary judgment (National Surety Corp. v. Swissler Plumbing, Inc. (1988), 167 Ill. App. 3d 608, 521 N.E.2d 257) although it had been superseded by the amended answer thereto and otherwise ceased to be a part of the record (Robins v. Lasky (1984), 123 Ill. App. 3d 194, 462 N.E.2d 774). However, we find that evidence, alone, insufficient to create a genuine issue of material fact with regard to defendant’s status for purposes of liability under the Act.

In so concluding, we note that the Popovic affidavit, which defendant submitted in support of the motion for summary judgment, unequivocally negatived the admissions in defendant’s original answer. A party opposing a motion for summary judgment cannot rely solely on the issues raised in the complaint or answer, where such issues are not further supported by evidentiary facts through affidavits. The practical effect of plaintiffs’ failure to file counteraffidavits was to admit the facts presented in defendant’s affidavit. (Hernandez v. Johnson Press Corp. (1979), 70 Ill. App. 3d 664, 670, 388 N.E.2d 778; Manda v. Branham (1977), 50 Ill. App. 3d 91, 94, 365 N.E.2d 216.) Therefore, the trial court did not err in granting the motion for summary judgment notwithstanding defendant’s prior admission.

For all of the foregoing reasons, we affirm the summary judgment for defendant, Wiss, Janney, Elstner & Associates, Inc.

Affirmed.

CERDA, P.J., and RIZZI. J., concur.