source: Caselaw Access Project

author: JUSTICE PINCHAM

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VINCENT C. LOPEZ, Defendant-Appellant.
    First District (5th Division)
    No. 83—2854
    Opinion filed December 14, 1984.

      Julius Lucius Echeles, of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Mark L. Rotert, Assistant Attorney General, and Sally L. Dilgart, of counsel), for the People.
   JUSTICE PINCHAM

delivered the opinion of the court:

Defendant, Vincent C. Lopez, an attorney, was charged in an indictment with theft. (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1).) In pertinent part, the indictment alleged that on or about April 26, 1968, and continuing thereafter until on or about August 25, 1979, defendant committed the offense of theft in that, as trustee, he knowingly exerted unauthorized control over the property of the Heinemann Family Foundation and the beneficiaries of the Heinemann Family Foundation in the sum of $115,957, with intent to permanently deprive the beneficiaries of the use and benefit of their property.

Following a bench trial, defendant was found guilty and was sentenced to serve 30 months’ probation and to pay $90,000 restitution. On appeal, relying on the alleged insufficiency of the evidence, defendant contends that he was not proved guilty beyond a reasonable doubt because: (1) the evidence failed to establish that defendant intended to permanently deprive the foundation or an identifiable class of beneficiaries of their property; (2) defendant treated his withdrawals from the foundation’s accounts as loans which he reflected in the foundation’s reports and records; and (3) defendant’s character and reputation evidence created a reasonable doubt of his guilt. Defendant further contends that there was a fatal variance between the allegations in the indictment and the evidence adduced at trial. We affirm.

The Heinemann Family Foundation was a charitable trust created in 1966 under the terms of the will of Edward Heinemann. The trust income was to be used to assist Christian Science institutions, orphanages, crippled and underprivileged children and animal welfare organizations. Defendant was the president, treasurer, director and sole trustee of the foundation, and he was the only authorized person who could sign for withdrawals from the foundation’s accounts. Defendant was thereby able to withdraw money at his discretion from the foundation’s accounts at the La Salle National Bank in Chicago. The foundation’s assets consisted of $108,637 in cash, stocks, dividends and two parcels of rental income property.

A 1981 audit of the foundation by the Illinois Attorney General revealed that from 1968 to 1979 the foundation’s checking and savings accounts were practically depleted. Between 1974 and 1979 defendant signed approximately 25 checks on the foundation’s accounts and deposited the money into his personal checking account at another Chicago bank. Most of these checks were made payable to defendant. A few were made payable to cash. The checks varied in amounts from $400 to $10,000. Although $7,615 in charitable contributions was made during the period 1974 to 1979, defendant withdrew $107,300 from the foundation’s accounts for his personal use. Sequential check numbers, especially for June 1978 to March 1978, revealed that almost all the checks withdrawn on the foundation’s accounts were made payable to defendant. In 1978, on January 12, 13, August 18 and December 6, defendant issued checks to himself in the amounts of $5,000, $7,500, $1,700 and $400. By the end of 1979, defendant had reduced the foundation’s accounts from the initial amount of $108,637 to $801. Defendant also sold all the stock, reduced the foundation’s interest in its rental property by more than one-half and converted $11,750 of the foundation’s rental income to his personal use.

When the defendant withdrew money for his personal use from the foundation’s accounts, he drafted unsecured promissory notes in the amount of the withdrawals, which ultimately totaled $122,457. The Attorney General’s audit reflected a total repayment by the defendant over an extended period of only $6,000.

As trustee of the foundation, defendant was required under the Charitable Trust Act (Ill. Rev. Stat. 1981, ch. 14, par. 57) to file annual financial reports of the foundation with the Attorney General’s office. Defendant did not do so. The reports for 1975, 1976 and 1977 were not filed until December 27, 1978. The annual report for 1978 was not filed until January 25, 1980. No reports were filed for the years after 1978. Following the Attorney General’s 1981 audit of the foundation, the instant theft indictment was returned.

Defendant argued before the trial court (as he does on appeal) that although he converted the foundation’s money to his personal use, he never intended to permanently deprive the beneficiaries or the foundation of the funds, and that the transactions were loans which were evidenced by his promissory notes and his partial repayments. The trial court rejected this contention.

Prior to addressing the merits of this appeal, we first resolve the State’s threshold contention that defendant’s post-trial motion to vacate the finding of guilt was untimely filed and that defendant therefore has waived appellate review of his conviction and sentence. The guilty finding was entered by the trial court on April 20, 1983. Defendant filed a post-trial motion to vacate this finding 72 days later, on June 30, 1983. The State urges that the motion was untimely filed because it should have been filed within 30 days after the guilty finding was entered. Ill. Rev. Stat. 1981, ch. 38, pars. 116 — 1(b) and 116 — 2(a).

Final judgment in a criminal case is not entered until the imposition of the sentence. The final judgment in a criminal case is the sentence. (People v. Blakeney (1978), 59 Ill. App. 3d 119, 124, 375 N.E.2d 1309.) In the pending case, defendant’s post-trial motion was filed on June 20, 1983, long before the date on which sentence was imposed, which was November 22, 1983. The trial court expressly ruled that the motion was timely filed. We will not disturb that finding.

Turning now to the merits of this appeal, defendant contends that the evidence failed to establish that he intended to permanently deprive an identifiable class of beneficiaries of their interest in the foundation’s property. This “speculative interest,” defendant posits, fails to satisfy the statutory element of ownership as that word is used in the criminal code. We do not agree. The Illinois theft statute (Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1) reads, in pertinent part:

“A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over the property of the owner ***.”

An “owner” is defined as “a person, other than the offender, who has possession of or any other interest in the property involved *** and without whose consent the offender has no authority to exert control over the property.” Ill. Rev. Stat. 1981, ch. 38, par. 15 — 2.

In the pending case, the indictment alleged that the property over which defendant exerted unauthorized control was owned by the Heinemann Family Foundation and the beneficiaries of the Heinemann Family Foundation. The beneficiaries were specifically alleged in the indictment to be:

“(a) Christian Science Churches and other Christian Science institutions, especially *** [the] Seventh Church of Christ Scientist in Chicago, Illinois;
(b) [C]rippled and underprivileged children and young people and *** hospitals, orphanages and other institutions devoted to giving such aid, especially to Protestant children and young people and Protestant institutions;
(c) Animal welfare.”

The identity of the owners and beneficiaries of the appropriated monies was thus properly alleged and adequately proved. Moreover, as the court stated in People v. Tucker (1976), 35 Ill. App. 3d 630, 632-33, 342 N.E.2d 395:

“Section 15 — 2 of the Criminal Code defines an ‘owner’ of property, as used in the Title of the Code relating to offenses directed against property, as ‘a person, other than the offender who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.’ [Citation.]
Unless prejudice can be shown from a variance between the allegations of the charge and the proofs at trial, demonstrating that the accused was unable to prepare his defense or that he would be subject to a second prosecution for the same offense, the variance will not be considered fatal nor will it mandate a new trial.
* * *
The courts have avoided rigid formality in such cases and have looked to whether the charge and the proofs have demonstrated that the subject property was not that of the accused, that he was able to prepare a defense to the charge and that he would be able to plead the acquittal or conviction thereunder in a subsequent prosecution for the same offense. Where those functions of the charge and the proofs have been realized, the conviction has not been reversed.”

In the instant case, not only were the beneficiaries identified, the defendant was not prejudiced by the lack of a more specific identification of the beneficiaries in the indictment or at trial. Scott’s treatise on the law of trusts states:

“In the case of a charitable trust there is ordinarily no definite beneficiary, but the trust is enforceable at the suit of the Attorney General or other public officer. [Citation.] The trustee of a charitable trust is subject to duties as fiduciary similar to those to which the trustee of a private trust is subject, such as the duty of loyalty and the duty not to delegate. Thus a trustee of a charitable trust, like a trustee of a private trust, violates his duty if he permits his self-interest to conflict with his duties as trustee, as, for example, where he sells trust property to himself individually, or purchases his individual property for the trust.
* * *
A trustee of a charitable trust is clearly under a duty to properly administer the trust, but it is difficult to see who has the correlative right. *** It can hardly be said that the duty is owing to the state. *** [T]he trustee of a charitable trust owes duties, but the duties are not owing to any person or persons in particular, though they are enforceable at the suit of a public officer for the benefit of the community.” (Emphasis added.) IV Scott, Law of Trusts sec. 348, at 2769 (3d ed. 1967).

Thus, the beneficiaries of the Heinemann trust, in addition to the “Christian Science Churches and other Christian Science institutions, especially to Seventh Church of Christ Scientist in Chicago, Illinois,” though not otherwise specifically identified by personal name in the indictment, constitute “owners” as that term is used in the statute defining theft. (Ill. Rev. Stat. 1981, ch. 38, par. 15 — 2.) The funds converted by the defendant to his personal use were, therefore, “owned by another.”

Defendant further contends that the evidence failed to establish beyond a reasonable doubt that he intended to permanently deprive “anyone” of their property. He argues that the evidence established instead that his withdrawals were loans because (1) he made no effort to conceal his withdrawals and conversion of the trust funds to his personal use; (2) he documented his use of the trust funds with his promissory notes made payable to the trust; and (3) he made partial payment on the notes. From this, defendant concludes, any intent to permanently deprive the owners of their property was negated. Again, we do not agree.

Whether a person intended to permanently deprive an owner of the benefit of his property is a question of fact to be decided by the trier of fact. (Spalding v. People (1898), 172 Ill. 40, 42, 49 N.E. 993.) In our view, this question was properly resolved by evidence of the defendant’s voluntary commission of acts which permanently deprived the true owners of their property, and by defendant’s appropriation of the property to his own use. The defendant’s mere contention that he did not intend to permanently deprive the foundation or beneficiaries of their property is not decisive on the issue of his intent. People v. Curoe (1981), 97 Ill. App. 3d 258, 274, 422 N.E.2d 931.

In finding that the State sustained its burden of proving defendant’s felonious intent, the trial court was justifiably persuaded by the following evidence: (1) in 1976 defendant filed annual reports (10 years after the foundation had been established in 1966) which revealed that the amount receivable from the defendant had reached approximately $24,000; (2) by 1977 defendant had appropriated $57,000 from the trust funds to his personal use; (3) in 1978 $23,000 was taken from the foundation’s accounts, bringing the total to approximately $115,000; (4) by 1981 the trust fund had been dwindled by the defendant to $801; and (5) as the trial court pointed out, defendant was unable to and had no means to repay the money that he had misappropriated. The trial court concluded:

“Notes were given and the defendant feels that disclosure makes it a different kind of transaction.
I don’t know when the [promissory] notes were made. All I know [is that] in ’76 they existed. If they really existed in the reports of the defendant, whether you call that secrecy or not, I don’t know. But he had all the reports.
I don’t feel the notes themselves enter into the case as an intention on the part of the defendant to pay it back.
No more than would a man coming into a bank, putting a gun to the teller [and making the demand] ‘Give me your money’ and getting the money and saying, ‘By the way, here’s a note for it. I owe it to you.’ ”

The trial court further pointed out that if defendant “had stopped” at $23,000, there conceivably could be an inference that he would eventually make some sort of reimbursement to the foundation. Instead, the trial court noted, defendant “went on and on way beyond [his] ability to pay.”

The Curoe decision is particularly persuasive on the issue of defendant’s criminal intent to permanently deprive the beneficiaries of the use and benefit of their property. Like the defendant here, the defendant in Curoe was an attorney who, as administrator of an estate, had exclusive control over considerable sums of money. Additionally, both defendants had a confidence reposed in them by virtue of their fiduciary position, both had complete discretion as to how the money over which they had control was to be spent and in both cases it was argued that the defendant’s unsecured, unverified promissory notes for the purloined monies, which notes were kept in the defendant’s exclusive control, negated the defendant’s criminal intent to permanently deprive the owners of their property. The defendant in Curoe was indicted for theft as the administrator of an estate and was accountable to certain named beneficiaries, however. The defendant in the pending case was charged as the trustee of a charitable trust fund whose beneficiaries included unnamed children and organizations that were identified by their social orientation or religious denomination. We find this factual distinction unpersuasive. Instead, we are more influenced by the above-mentioned factual similarities, coupled with the court’s rationale in Curoe that:

“To ‘permanently deprive’ means, inter alia, to ‘sell, give, pledge, or otherwise transfer any interest in the property or subject it to the claim of a person other than the owner.’ (Ill. Rev. Stat. 1971, ch. 38, par. 15 — 3(d).) The evidence presented at the trial of this case clearly established that defendant intended to permanently deprive the heirs of the use and benefit of their property. Defendant appropriated assets from the estate and by his own admissions applied them to his own economic advantage. What he gave the estate in return was a series of unsecured, unverified and unwitnessed promissory notes which may or may not have had any value. Within the context of section 15 — 3(d) defendant, by transferring interests in the estate property and subjecting that property to the claims of persons other than the rightful owners, intended to permanently deprive the heirs of their property.
* * *
*** In the instant case defendant, beginning on December 28, 1972, only six days after he was appointed administrator and continuing until January 10, 1974, withdrew almost $400,000 from the assets of the estate of Louis Moritz and used these funds for his own financial gain. None of the diversions of the estate assets was done with the knowledge or consent of either the probate court or the heirs. Under these circumstances it is appropriate to conclude that defendant embezzled those moneys and was properly found guilty of theft. Defendant, however, argues that ‘the records and disclosures made at the time of the occurrence are circumstances which negate felonious intent’ and cites People v. Stevens (1934), 358 Ill. 391, 405, 193 N.E. 154, for the proposition that ‘the absence of proof of secrecy and concealment is a circumstance which tends to negative the charge that the accused was actuated by a felonious intent.’ (See also People v. Parker (1934), 355 Ill. 258, 286, 189 N.E. 352.) In our opinion defendant’s reliance on this principle is completely unfounded.
* * *
Defendant’s production of promissory notes at the November 8, 1974, meeting and his assurances to repay the heirs do not negate his criminal intent [citation] even if defendant had proven that the notes had been executed contemporaneously with his appropriation of the estate assets [citation]. Defendant’s testimony that he had no intention to permanently deprive the heirs of their property is not decisive on the issue of his intent. [Citation.] As the court observed in Spalding v. People (1898), 172 Ill. 40, 59-60, 49 N.E. 993:
‘A guilty intent is necessarily inferred from the voluntary commission of *** an act, the inevitable effect of which is to deprive the true owner of property and appropriate it to the defendant’s own use. Perhaps in a majority of cases the party who violates his trust in such a manner does not expect or intend that ultimate loss shall fall upon the person whose property he takes and misuses. But no hope or expectation of replacing the funds abstracted can be admitted as an excuse before the law.’ ” 97 Ill. App. 3d 258, 273-74.

The court in Curoe concluded that the defendant was proved guilty beyond a reasonable doubt of theft, but reversed the judgment of conviction on other grounds. In the case at bar, like the court in Curoe, we too are unpersuaded by the argument that the evidence failed to establish beyond a reasonable doubt that the defendant intended to permanently deprive the owners of their property. The trial court’s finding will therefore be upheld.

It is next argued that the testimony of several character witnesses who testified that the defendant enjoyed a good reputation for honesty and integrity raised a reasonable doubt of defendant’s guilt. This contention must fail. Although evidence of an accused’s good reputation for honesty and integrity may raise a reasonable doubt of his guilt, it is within the province of the trier of fact to make that determination, which should not be disturbed on review except where the evidence of guilt is unsatisfactory, improbable or implausible. (People v. Villalobos (1979), 78 Ill. App. 3d 6, 11-12, 396 N.E.2d 1081.) The authorities on which the defendant relies for reversal, People v. Buchholz (1936), 363 Ill. 270, 2 N.E.2d 80; People v. Ricili (1948), 400 Ill. 309, 79 N.E.2d 509; People v. Shockey (1964), 30 Ill. 2d 147, 195 N.E.2d 703; People v. Eatman (1950), 405 Ill. 491, 91 N.E.2d 387; People v. Bush (1972), 4 Ill. App. 3d 669, 281 N.E.2d 734; People v. Lonzo (1974), 20 Ill. App. 3d 721, 315 N.E.2d 256; People v. Heilemann (1936), 362 Ill. 322, 199 N.E. 792, are inapposite and uncontrolling here. Accordingly, the trial court’s finding will not be disturbed.

Defendant’s final contention is that there was a fatal variance between the indictment and the proof adduced at trial. Defendant argues that while the indictment alleged that the theft occurred from 1968 through 1979, the proof according to the trial judge’s express findings established that the theft did not commence until 1976 or 1977. Defendant does not contend that the proof established a theft within a time period not alleged in the indictment. Rather, he argues, because the proof established theft within a more brief time period than alleged, a fatal variance exists. The mere statement of that proposition clearly reveals its obvious inaccuracy. Defendant was not convicted for a crime that was not charged in the indictment. There was no variance between the indictment and the proof, because proof of defendant’s theft from 1976 to 1979 was well within the period alleged, 1968 through 1979.

The judgment of conviction of theft is affirmed.

Affirmed.

MEJDA, P.J., and SULLIVAN, J., concur.


author: MR. JUSTICE JIGANTI

text:
    DAVID LAUNIUS et al., Plaintiffs-Appellants, v. ROBERT NAJMAN et al., Defendants-Appellees.
    First District (4th Division)
    No. 84—45
    Opinion filed December 6, 1984.

      Forsberg, Marsh, Wenzel & Kerwin, of Chicago (Donald G. Weiland, of counsel), for appellants.
    Gould & Ratner, of Chicago (Louis R. Hegemon and Robert A. Carson, of counsel), for appellees.
   MR. JUSTICE JIGANTI

delivered the opinion of the court:

This appeal arises out of the operation of a parking lot by defendants, Robert Najman, Marvin Lustbader and American National Bank, as trustee under trust No. 45967, in violation of a municipal zoning ordinance. The city of Chicago on December 2, 1981, filed a complaint pursuant to section 11 — 13—15 of the Illinois Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11 — 13—15) against the defendants seeking injunctive relief against them as owners of a parcel of real estate operating as a parking lot located in Chicago, allegedly in violation of article 8.11 — 3 of the Chicago Zoning Ordinance. (Chicago Zoning Ordinance 1983, art. 8.11 — 3.) On December 29, 1981, plaintiffs David Launius and Heather Anderson brought a three-count complaint as tenants of property within 1,200 feet of defendants’ illegal operation, alleging the same municipal ordinance violation against defendants pursuant to section 11 — 13—15, and seeking injunctive relief, damages and attorney fees. The city’s complaint was consolidated with the plaintiffs’ action on February 2, 1982. On November 24, 1982, plaintiff American National Bank, under trust No. 20360, as legal titleholder of plaintiffs’ property, was allowed to file an intervening complaint which was identical to the plaintiffs’ action. On April 25, 1983, plaintiffs Launius and Anderson’s complaint was dismissed for lack of standing on the grounds that they were neither owners nor tenants of property located within 1,200 feet of the alleged violation as required by section 11— 13 — 15 because their lease had been cancelled shortly after defendants had begun their operation. On that day, the court entered an agreed settlement order for a permanent injunction against defendants’ operation of the property as a parking lot. A bench trial proceeded on April 25 on the sole remaining claim; the plaintiff American National’s action for damages and attorney fees under section 11-13-15.

On June 20, 1983, the trial court denied American National’s request for attorney fees under section 11 — 13—15 on the basis that American National’s action was duplicative of the city’s action.

On July 20, 1983, plaintiff American National filed a petition for attorney fees pursuant to section 2 — 611 (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611), alleging that defendant Robert Najman’s untrue statements in his petition and supporting affidavit seeking to vacate the September 17, 1982, rule to show cause caused American National to incur attorney fees. The court denied the petition on December 5, 1983, on the basis that there was no allegation that plaintiff had incurred any expense due to the defendant’s untrue pleading.

American National’s motion to reconsider the denial of attorney fees under section 11 — 13—15 and plaintiffs’ Launius and Anderson’s motion to reconsider their dismissal were denied. On appeal, the following issues are raised: (1) whether the trial court erred in refusing to award attorney fees under section 11 — 13—15 of the Municipal Code to plaintiff American National; (2) whether the trial court erred in dismissing plaintiffs Launius and Anderson’s complaint for lack of standing; and (3) whether the trial court erred in refusing to grant plaintiff American National a hearing on its petition for attorney fees pursuant to section 2 — 611.

We first consider plaintiff American National’s contention that the trial court erred in failing to award them attorney fees pursuant to section 11 — 13—15 of the Municipal Code (Ill. Rev. Stat. 1983, ch. 24, par. 11 — 13—15).

Section 11 — 13—15 permits an action by either a municipality or an owner or tenant of real property within 1,200 feet in any direction of property used in violation of municipal or local ordinances to enforce those violations by way of an injunction. That section further provides:

“If an owner or tenant files suit hereunder and the court finds that the defendant has engaged in any of the foregoing prohibited activities, then the court shall allow the plaintiff a reasonable sum of money for the services of the plaintiff’s attorney. This allowance shall be a part of the costs of the litigation assessed against the defendant, and may be recovered as such.” Ill. Rev. Stat. 1983, ch. 24, par. 11 — 13—15.

Citing City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 418 N.E.2d 63, appeal dismissed (1982), 455 U.S. 996, 71 L. Ed. 2d 858, 102 S. Ct. 1625, plaintiff argues that the allowance of attorney fees to a successful plaintiff in an action under this section is mandatory based on a finding that the defendants have engaged in the prohibited activity. Plaintiff is correct in pointing out that since section 11 — 13—15 was amended in 1969, the allowance of attorney fees under this provision is mandatory rather than discretionary. (Meyer v. Marshall (1976), 62 Ill. 2d 435, 439, 343 N.E.2d 479; City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 1131, 418 N.E.2d 63.) However, plaintiff’s reliance on Westphalen is misplaced. In Westphalen, the court considered the question of whether the private landowner plaintiffs were proper parties to intervene in the city’s action in order to prosecute violations not encompassed by the city’s complaint. The court held that, under section 11 — 13—15, adjoining landowners or tenants whose interests were not identical to those of the city could bring suit to enforce zoning and building code violations for the purpose of protecting interests that may be adversely affected if they were not allowed to intervene in the city’s action. The court reasoned that as the plaintiffs alleged violations which were not the basis of the city’s action, the fact that the city instigated the action did not foreclose these private parties from bringing an action to protect their own interests. (93 Ill. App. 3d 1110, 1130, 418 N.E.2d 63.) Based on the court’s conclusion that the private plaintiffs were proper parties in the city’s action, the court found that they were entitled to a mandatory award of attorney fees under section 11 — 13—15. 93 Ill. App. 3d 1110, 1131-32, 418 N.E.2d 63.

In contrast, in the present case, the plaintiff here seeks a mandatory award of fees where it alleges the same violation as alleged in the suit initiated by the city. The plaintiff does not allege any interests, which differ from those of the city which could be adversely affected by the city’s prosecution of the action. Rather, the plaintiff alleged the same violation and requested the same relief the city sought and subsequently obtained against the defendant, i.e., a permanent injunction against the defendants’ illegal operation. Unlike Westphalen, the plaintiff’s interests here closely correspond to that of the city.

We disagree with the plaintiff’s construction of section 11 — ISIS that any time a private landowner or tenant enters a suit filed by a municipal authority alleging a violation of a local building or zoning code ordinance, he is automatically entitled to a mandatory award of attorney fees. The trial court here found that the plaintiff’s action was a duplication of the city’s effort and reasoned that to allow an award of attorney fees would “invite a deluge of private litigation closely tracking city suits, seeking attorney fees with no appreciable public benefit.” We agree. Section 11 — 13—15 is a valid grant to municipal authorities of the State’s police powers to enforce zoning and building ordinances to promote the public health, welfare and safety. (City of Chicago v. John Hancock Mutual Life Insurance Co. (1984), 127 Ill. App. 3d 140, 146, 468 N.E.2d 428; Lanski v. American National Bank & Trust Co. (1984), 122 Ill. App. 3d 729, 731, 462 N.E.2d 607.) The extension of this enforcement authority to adjacent landowners or tenants is to afford relief to private citizens whose municipal officials are slow or reluctant to act (see Palella v. Leyden Family Service & Mental Health Center (1980), 79 Ill. 2d 493, 501-02, 404 N.E.2d 228), or where the local authorities’ actions are not protective of their interests. (City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 1130, 418 N.E.2d 63.) While our supreme court has consistently held that adjacent landowners are entitled to intervene in municipal suits because their particular interests extend beyond the public’s interest (Anundson v. City of Chicago (1970), 44 Ill. 2d 491, 495-96, 256 N.E.2d 1; Bredberg v. City of Wheaton (1962), 24 Ill. 2d 612, 623-24, 182 N.E.2d 742), we do not believe that it necessarily follows that private plaintiffs allowed to intervene to protect their unique interests are also entitled to attorney fees under section 11 — 13—15, where the same violation is alleged that is already the subject of the municipality’s prosecution. The allowance of attorney fees under this section is a permissible statutory sanction to secure compliance with local building and zoning ordinances. (Pasfield v. Donovan (1956), 7 Ill. 2d 563, 568, 131 N.E.2d 504; City of Chicago v. Westphalen (1981), 93 Ill. App. 3d 1110, 1132, 418 N.E.2d 63.) Plaintiff’s broad construction is inconsistent with this apparent legislative purpose. Once compliance had been accomplished by the city’s action, there was no basis upon which to award fees to the plaintiff. Therefore, we conclude that the trial court properly denied plaintiff’s claim for fees.

Plaintiffs Launius and Anderson next contend that the trial court erred in dismissing their complaint for lack of standing. Launius and Anderson filed a three-count complaint pursuant to section 11 — 13—15 alleging they were tenants within 1,200 feet of the defendants’ illegal parking lot operation. In count I, plaintiffs sought a preliminary injunction against the defendants, and in count II they sought a permanent injunction and attorney fees. Count III alleged that the defendants owed plaintiffs a duty not to damage their business and sought $15,000 in damages for the defendants’ alleged breach. Defendants Lustbader and American National Bank moved to dismiss Launius and Anderson on the basis they were neither owners nor tenants within the provisions of section 11 — 13—15. Alternatively, they moved to strike count III for failure to state a cause of action. The trial court dismissed plaintiffs’ suit on the grounds they were without proper standing under the Municipal Code and that the suit was duplicative of the city’s action.

On appeal, plaintiffs do not assert whether they were owners or tenants entitled to bring a section 11 — 13—15 action. Rather, they maintain that their standing does not depend exclusively on the Municipal Code and maintain that count III sufficiently alleged a separate count of tortious interference with plaintiffs’ parking lot business. We agree with the defendants that the plaintiffs here have not properly pleaded a cause of action for tortious interference with a prospective economic advantage or tortious interference with a contractual relationship. In order to state a cause of action for the tort of interference, a plaintiff must allege the existence of a valid business relationship or expectancy; knowledge of the relationship or expectancy on the part of defendant; an intentional interference inducing or causing a breach or termination of the relationship or expectancy; and resultant damage to plaintiff. (Bank Computer Network Corp. v. Continental Illinois National Bank & Trust Co. (1982) , 110 Ill. App. 3d 492, 500, 442 N.E.2d 586; City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 363, 300 N.E.2d 331; Broida & Handler, Tortious Interference with Contract and Prospective Advantage in Illinois, 32 DePaul L. Rev. 325 (1983) .) While plaintiffs alleged in count III the existence of a valid business relationship, they have not alleged that the defendants had knowledge of the contract or expectancy and that the defendants intentionally interfered with that contract or expectancy. Furthermore, plaintiffs’ argument that defendants are equitably estopped to raise the plaintiffs’ lack of standing because defendants’ illegal operation allegedly caused the cancellation of plaintiffs’ lease is equally without merit. Equitable estoppel is a doctrine developed in equity to prevent the party from asserting rights where the assertion of those rights would work a fraud or injustice on another party. (Martin Brothers Implement Co. v. Diepholz (1982), 109 Ill. App. 3d 283, 288, 440 N.E.2d 320.) As plaintiffs have produced no evidence establishing any words or conduct by defendants amounting to a misrepresentation or concealment of material fact, and as plaintiffs have failed to show the defendants intended or expected their conduct to result in plaintiffs’ reliance on the alleged misconduct, plaintiffs have not shown that the doctrine of equitable estoppel is applicable. Martin Brothers Implement Co. v. Diepholz (1982), 109 Ill. App. 3d 283, 288-89, 440 N.E.2d 320.

Finally, plaintiff American National contends that the trial court’s denial of its motion for costs and attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611) was an abuse of discretion.

Following trial, plaintiff filed a motion for costs and attorney fees pursuant to section 2 — 611 alleging that defendant, Najman, without reasonable cause, made untrue statements in an affidavit to support Najman’s petition to vacate an earlier rule to show cause entered against him for continuing to operate the parking lot in violation of a default order enjoining its operation. According to plaintiff’s petition, Najman’s statements that he removed himself as officer and director of the corporation managing the parking lot and that he owned only a 25% beneficial interest in the land trust were untrue and made without reasonable cause. Plaintiff alleged that by reason of Najman’s untrue statements it incurred attorney fees. The motion was denied without a hearing, and plaintiff raises the issue of whether the denial of its petition without a hearing was improper.

Whether a hearing must be held to determine whether the assertions are untrue and made without reasonable cause depends upon the circumstances presented in each case. (Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 512, 394 N.E.2d 1273.) Generally, a hearing on both the merits and the amount is required before awarding expenses (Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 185, 417 N.E.2d 1297; Neuberg v. Michael Reese Hospital & Medical Center (1983), 118 Ill. App. 3d 93, 101-02, 454 N.E.2d 684; In re Application of County Collector (1978), 66 Ill. App. 3d 437, 450, 383 N.E.2d 1224; Morton v. Environmental Land Systems, Ltd. (1977), 55 Ill. App. 3d 369, 374, 370 N.E.2d 1106; Malone v. Checker Taxi Company, Inc. (1972), 3 Ill. App. 3d 1040, 1041, 279 N.E.2d 738); however, there is no need for a separate hearing where the pleadings and evidence at trial demonstrated whether the two requirements of section 2 — 611—that the assertions were made without reasonable cause and found to be untrue — have been met. (Brokaw Hospital v. Circuit Court of McLean County (1972), 52 Ill. 2d 182, 185-86, 287 N.E.2d 472; Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 466 N.E.2d 945; Grover v. Commonwealth Plaza Condominium Association (1979), 76 Ill. App. 3d 500, 512, 394 N.E.2d 1273; Voss v. Lakefront Realty Corp. (1977), 48 Ill. App. 3d 56, 72, 365 N.E.2d 347.

At trial, Najman and defendant Lustbader both testified regarding their interest and control of the corporation. Najman testified that he owned a 25% beneficial interest in the land trust. He further stated that he resigned as an officer and director of the corporation but that he could not recall how he had resigned. Lustbader testified that he was not sure what percentage of interest Najman had in the land trust, but that he believed Najman’s interest was 50%. He also said that he could not recall a discussion with Najman about his resignation from the corporation. Based on this trial evidence, the trial court could make the determination of whether Najman’s statements were untrue and made without reasonable cause. Under these circumstances, an additional hearing was not required.

Furthermore, section 2 — 611 expressly limits expenses and fees to those actually incurred by reason of the untrue pleadings. As section 2 — 611 is penal in nature, its provisions must be strictly construed. (Fewer v. Grant (1982), 111 Ill. App. 3d 747, 750, 444 N.E.2d 628.) Thus, as the petition here fails to allege any costs or fees directly resulting from the defense of these purportedly untrue allegations, there was no error in the trial court’s denial of the petition. (See Bank of Naperville v. Holz (1980), 86 Ill. App. 3d 533, 539, 407 N.E.2d 1102.) Accordingly, the trial court’s denial, without a hearing, of plaintiff’s motion for expenses was not an abuse of discretion.

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

LINN, P.J., and JOHNSON, J., concur.


author: JUSTICE MILLS

text:
    KENNETH E. BAUGHMAN, Plaintiff-Appellant, v. MARTINDALE-HUB-BELL, INC., Defendant-Appellee.
    Fourth District
    No. 4—84—0283
    Opinion filed December 13, 1984.
    Kenneth E. Baughman, of Monticello, for appellant pro se.

    Charles L. Palmer, of Franklin, Flynn & Palmer, of Champaign, for ap-pellee.
   JUSTICE MILLS

delivered the opinion of the court:

A lawyer’s directory.

Injunction sought against it.

The trial court dismissed.

We affirm.

Attorney Kenneth Baughman filed a complaint for injunctive relief against Martindale-Hubbell, Inc., alleging violations of the Illinois Antitrust Act (Ill. Rev. Stat. 1981, ch. 38, par. 60 — 1 et seq.) and the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1981, ch. 121V2, par. 311 et seq.).

The action challenges the attorney rating system employed in the law directory published by Martindale-Hubbell and the terms on which defendant accepts advertising in the directory. The trial court dismissed the complaint, attorney Baughman elected to stand on his complaint, and he here appeals the order of dismissal.

Defendant publishes the Martindale-Hubbell Law Directory, a national directory of attorneys. The directory is divided into two sections. The first section, termed the “Geographical Bar Roster,” purports to list the name of every lawyer in the country and certain encoded biographical information relating to each. Ratings derived from confidential recommendations of lawyers and judges appear -with a large number of the listings in the Geographical Bar Roster. Inclusion in this section is offered free of charge to the attorneys listed therein. The second section, termed the “Biographical Section,” is composed of paid advertisements placed by qualifying lawyers and firms. To qualify for purchasing an advertisement in this section, a lawyer must receive a certain rating under the defendant’s system or be associated with a firm so rated.

Plaintiff is an attorney licensed to practice law in the State of Illinois. It appears that in previous years plaintiff’s name was included in the listings of the Geographical Bar Roster. On April 30, 1983, however, he informed Martindale-Hubbell that he did not desire to be rated in the directory. He inquired of the defendant (1) whether he could purchase advertising in the directory without being rated, and (2) if a rating was required, whether he would be allowed to inspect the recommendations relating to him in order to correct any inaccurate responses in the replies. He received no response to these inquiries.

Count I of the complaint alleges that the rating system and advertising format of the directory constitute a deceptive trade practice within the meaning of section 2 of the Uniform Deceptive Trade Practices Act. It is alleged that these features of the publication violate the Act by creating a likelihood of confusion or misunderstanding as to the quality and characteristics of the legal services offered by attorneys who are listed in the directory. The accuracy of the ratings is specifically challenged, it being alleged that the confidential recommendations solicited by the defendant may be based on hearsay, and no efforts to verify the recommendations are undertaken. In addition, it is alleged that the directory is misleading in that it does not indicate that the lawyer ratings do not represent the endorsement of all judges nor of any bar association.

Count II alleges that the directory is published pursuant to an implied contract, combination, or conspiracy with the attorneys who purchase advertising in the directory, which operates to restrain trade or commerce in violation of the Illinois Antitrust Act. It is alleged that the defendant refused to sell plaintiff advertising unless he submitted to its rating system. It is further alleged that the directory is the exclusive medium for advertising outside a lawyer’s local advertising area at a practicable cost. Count II avers that the majority of legal business referred from outside plaintiff’s county is referred on the basis of the listings in the Biographical Section of the directory. It is alleged that the aforementioned contract, combination, or conspiracy discourages the forwarding of legal business into plaintiff’s area by employment of discriminatory advertising policies and the refusal to publish legal fees.

Both counts seek to enjoin Martindale-Hubbell’s rating system and the limitations set on the content of advertisements in the directory. Count I alleges that, as a user of the directory, plaintiff anticipates irreparable harm in that he will be unable to locate competent counsel outside his area, due to the inaccurate ratings and the limitations imposed on advertising content in the directory. In addition, both counts allege irreparable harm to plaintiff in that he will:

“1. Sustain a loss of business to other attorneys in his practicing area who are rated in the arbitrary and discriminatory manner as hereinafter set forth;
2. Sustain a loss of business because the directory fails to indicate that the Plaintiff has requested not to be rated therein;
3. Sustain a loss of business because of the arbitrary rating system as alleged hereinafter which discriminates in its advertising practices by granting advertising to ‘a’ and ‘b’ rated attorneys while denying advertising to all other practicing attorneys in its general Biographical advertising section.
4. Sustain a loss of his reputation by not being allowed to inspect the rating file the Defendant has on him in order to determine the accuracy and veracity of statements contained therein by rating attorneys and judges, so as to establish his right to advertise therein in the general Biographical section.
5. Sustain a loss of business because the Defendant will not allow him to advertise his fees therein.”

Defendant filed a motion to dismiss based expressly upon section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615). The trial court allowed the motion as to both counts of the complaint. On appeal, plaintiff argues that the complaint adequately stated causes of action under the Illinois Antitrust Act and the Uniform Deceptive Trade Practices Act.

Before considering the merits of the issues, we must comment upon the procedure followed by the parties in the trial court. The motion ruled upon by the trial court was entitled by the defendant “Motion to Dismiss Complaint for Injunction.” After the filing of the motion, defendant orally sought leave to designate the motion as a section 2 — 615 motion. Leave was allowed. Despite these representations of the nature of the motion, however, the motion alleged material new facts and included supporting affidavits and evidentiary materials. In response, plaintiff filed a counteraffidavit.

It is well established that a motion to dismiss may not be combined with a motion for summary judgment. (Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) A section 2 — 615 motion is limited to the face of the pleadings and admits the truth of all well pleaded facts. (Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 439 N.E.2d 60; Inland Real Estate Corp. v. Christoph (1981), 107 Ill. App. 3d 183, 437 N.E.2d 658.) Factual defenses are not available under section 2 — 615; the court may consider only the allegations of the complaint and may not consider supporting affidavits offered by the movant. Premier Electrical Construction Co. v. LaSalle National Bank (1983), 115 Ill. App. 3d 638, 450 N.E.2d 1360; Davis v. Weiskopf (1982), 108 Ill. App. 3d 505, 439 N.E.2d 60.

The motion to dismiss filed by defendant in this cause improperly alleged new facts and submitted evidentiary support for those allegations. Nevertheless, we find no indication that the defective state of the pleadings influenced the judgment. The final order reflects that the trial court addressed the pleading specifically as a section 2 — 615 motion to dismiss. The court determined that the complaint failed to state a cause of action and entered an order of dismissal accordingly. There is no indication that the court based the judgment upon consideration of the matters improperly included in the motion to dismiss. Absent prejudice, the court’s consideration of such materials would not require reversal in any case. (See Herman v. Hamblet (1980), 81 Ill. App. 3d 1050, 401 N.E.2d 973.) We find as a matter of law that the trial court ruled correctly in dismissing the complaint.

On appeal, plaintiff focuses his argument upon the sufficiency of the complaint to state violations under the Uniform Deceptive Trade Practices Act and the Illinois Antitrust Act. For purposes of the disposition in this appeal, we assume — without deciding — that the complaint adequately alleged statutory violations. We find, however, that the complaint was fatally defective in failing to allege a sufficient basis for the injunctive relief requested.

The Uniform Deceptive Trade Practices Act specifically provides for injunctive relief. Section 3 of the Act states in part:

“A person likely to be damaged by a deceptive trade practice of another may be granted injunctive relief upon terms that the court considers reasonable. Proof of monetary damage, loss of profits or intent to deceive is not required.” (Ill. Rev. Stat. 1981, ch. 121 Vz, par. 313.)

To state a cause of action for injunctive relief, a plaintiff must minimally allege that he is likely to be damaged by another’s deceptive trade practice. See Egnell, Inc. v. Weniger (1981), 94 Ill. App. 3d 325, 418 N.E.2d 915.

In count I, plaintiff’s claim under the Uniform Deceptive Trade Practices Act, plaintiff alleges that he will incur damage both in his capacity as a user of the directory and as an attorney not listed in the directory. As a user of the directory, plaintiff claims that he will sustain damages in that he will be prohibited from (1) determining the accurate qualifications of rated attorneys due to the rating system employed, and (2) locating attorneys for the referral of cases because the defendant does not permit attorneys to state their qualifications or fees.

The harm alleged by plaintiff in this connection is insubstantial and trivial. Plaintiff concedes in his complaint that the directory does in fact publish the identities of many qualified lawyers and their credentials in the Biographical Section of the listings. Hence, it is clear that the defendant does not prohibit plaintiff from locating qualified counsel. The absence of fee information in the directory reflects the norm, of course, and occasions no harm.

As an attorney not listed in the directory, plaintiff alleges that he will suffer damage by loss of business to attorneys who advertise in the directory, because he is not permitted to purchase advertising. The complaint shows, however, that plaintiff’s lack of opportunity to buy advertising is not caused by the alleged violations of the Act, but rather by his own refusal to submit to the rating system. Plaintiff has not been denied the opportunity to advertise by inequities in the rating system in the first instance, but by his decision to opt out of the ratings altogether. The record properly before the court does not indicate whether plaintiff would have been eligible to buy advertising had he been rated. As such, plaintiff’s allegations of harm are purely speculative; additionally, they are unsupported by specific factual aver-ments in the complaint.

The Illinois Antitrust Act also specifically provides for injunctive relief. Section 7(2) of the Act states in part:

“Any person who has been injured in his business or property, or is threatened with such injury, by a violation of Section 3 of this Act may maintain an action in the Circuit Court for damages, or for an injunction, or both, against any person who has committed such violation.” Ill. Rev. Stat. 1981, ch. 38, par. 60 — 7(2).

Under count II, plaintiff’s Illinois Antitrust Act claim, plaintiff alleges that, as an attorney who is denied the opportunity to purchase advertising in the directory, he will suffer the same elements of harm pleaded as damage to nonrated attorneys in count I. The analysis at this point is necessarily similar to the analysis of the allegations in count I. The harm which plaintiff would allegedly suffer is due immediately to his refusal to comply with the most basic of the requirements for obtaining advertising in the directory. He will not submit to being rated. Absent some indication of what plaintiff’s rating would be, it is impossible to conclude that he is likely to be harmed by the defendant’s rating system and procedures.

Plaintiff has failed to meet the threshold requirement for pleading a cause of action for injunctive relief under the statutes. As such, the pleadings are fatally defective, and we must affirm the trial court’s dismissal of the complaint.

Affirmed.

GREEN, P.J., and TRAPP, J., concur.


author: PRESIDING JUSTICE HARTMAN

text:
    HARRY AXELROD et al., Plaintiffs-Appellants, v. N. A. “JIM” GIAMBALVO et al., Defendants-Appellees.
    First District (2nd Division)
    No. 83—2733
    Opinion filed December 11, 1984.

      Joseph J. LaRocco and Ronald V. Hirst, both of LaRocco, Baker & Hirst, of Chicago, for appellants.
    Leonard A. Nelson, of Schoenberg, Fisher & Newman, Ltd., of Chicago, for appellee Donald E. Jeffers.
    Sidney Z. Karasik, of Chicago, for other appellees.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiffs, Harry and Margaret B. Axelrod, are owners of a certificate of beneficial interest in the 860 Lake Shore Drive Trust (Trust). The Trust holds title to two 26-story cooperative apartment buildings located at 860-880 North Lake Shore Drive, in Chicago. As certificate holders among some 268 others, they were entitled to, and did, lease an apartment in one of the buildings. Responsibility for managing the Trust under the trust agreement is vested in a board of five managing trustees who, since 1978, have been elected to those positions by the certificate holders (beneficiaries). The managing trustees are required to be certificate holders and tenants of the building under the trust agreement. The present litigation commenced on March 15, 1979, when plaintiffs sued as defendants the corporate trustee, La Salle National Bank, and managing trustees of the Trust, alleging numerous breaches of trust in an amended 21-count complaint seeking a variety of forms of relief including money damages, injunctive relief, and construction and modification of the trust agreement against separate defendants in both their individual and official capacities. Each count alleged facts substantially distinct from the facts of the other counts. Each count ran through several pages, plus many pages of exhibits. Further amendments were filed after judgment.

Some counts were ruled upon pursuant to motions to strike, some upon motion for summary judgment, and one was decided after an eight-day trial. All issues were decided against plaintiffs. Plaintiffs appeal, raising as issues whether: certain counts were erroneously stricken and dismissed; the circuit court’s grant of summary judgment for defendants on counts VI and XXI was appropriate; and the circuit court’s decision in defendants’ favor on count XX was contrary to the manifest weight of the evidence. The dismissal of counts filed against the corporate trustee bank has not been argued on appeal.

Certain common threads can be identified in the various legal theories presented. They may be placed in three categories, namely: (1) charges of a derivative nature which sought relief against individual defendants based on their former status as managing trustees of the Trust; (2) charges of a derivative nature which sought relief against individual defendants personally for the asserted benefit of the Trust; and (3) one nonderivative count which sought relief against the individual defendants for the individual benefit of plaintiffs.

The Trust was the subject of related litigation in 1977, when a class action was filed by beneficial owners against the corporate trustee and the managing trustees. Certain beneficiaries, including plaintiffs here, opted out of the class. Nevertheless, the Axelrods continued to appear regularly and actively in the proceedings. (Wool v. LaSalle National Bank (1980), 89 Ill. App. 3d 560, 562, 411 N.E.2d 1135.) During the course of the 1977 action, a new board of managing trustees was elected, who are defendants in the instant case. This new board petitioned the circuit court for instructions as to whether they should pursue any legal claims against their predecessors. In that case, Wool v. La Salle National Bank (Cir. Ct. Cook Cty., June 6, 1979), No. 77 CH 483, the circuit court issued an order prohibiting the new board from instituting such legal action against the predecessor managing trustees. That order was appealed to this court by certain beneficiaries. Plaintiffs here, the Axelrods, also filed an appeal which was dismissed as untimely filed, and the circuit court order was not disturbed. Wool v. La Salle National Bank (1980), 89 Ill. App. 3d 560, 411 N.E.2d 1135.

On May 1, 1980, still another new slate of managing trustees, also tenants-owners of the Trust, as are plaintiffs and defendants, assumed office on behalf of the Trust. As a result of this change, none of the previously elected (1977) defendants remained in office. There is no claim in the record of any personal financial benefit accruing to these successor managing trustees as a result of a favorable outcome for defendants in this lawsuit, bad faith or abuse of discretion on their part. On September 4, 1981, after various derivative counts had been stricken and dismissed, the successor managing trustees submitted an affidavit to the circuit court, which formed a basis for defendants’ motion for summary judgment on two of three remaining counts. This affidavit, in part, states as follows:

“1. We are the duly elected managing trustees of the 860 Lake Shore Drive Trust, and we are all managing trustees presently in office.
2. In connection with this litigation, we support all motions made and positions taken by the defendants. We oppose all motions made and positions taken by plaintiffs, except as the same may be agreed to by defendants.
3. We believe that termination of this lawsuit with judgment entered on all counts in favor of defendants is in the best interests of the Trust, for the following reasons:
* * *
b. This lawsuit has been a disruption to the Trust’s orderly procedure. Plaintiffs’ counsel have interrupted the normal routine of the building office to investigate documents. Defendants’ counsel must confer with the La Salle National Bank, the building manager, and with the managing trustees about this case. They must review and sign affidavits. All of this takes time and effort for everyone concerned.
c. Even if plaintiffs should, by some remote chance, be successful in this case, the benefits which might be achieved for the Trust could not possibly compensate for the time and expense of litigation.
d. The publicity attendant upon this case can continue to diminish the value of the Trust and of the tenant/owners’ equity. Some people may be reluctant to purchase an apartment in a building where the managers are the subject of litigation.
e. Most important of all, the present managing trustees wish to encourage certificate holders to run for the office of managing trustee. Particularly in light of the fact that the managing trustees receive no pay for their efforts, they do not want obstacles placed in the path of those who have volunteered to serve the Trust. They want to keep a difficult job from being even more onerous. They definitely do not want certificate holders to be dissuaded from running for office through fear that dissident tenant/owners might bring marginal or frivolous lawsuits against them.”

Summary judgment on counts VI and XXI was thereafter granted. Following an eight-day trial, judgment for defendants on count XX was also entered. This appeal followed.

I

Plaintiffs assert that the circuit court improperly struck and dismissed counts I through V and VII through XIX of their second amended complaint for failing to state causes of action. These counts included charges of a derivative nature based both upon defendants’ former positions as managing trustees of the Trust and against them personally for the asserted benefit of the Trust.

Among the reasons given by the circuit court for its decision was that sections 4.01 — 4.07 of the trust agreement delegated to the managing trustees broad authority to make decisions in managing the business of the Trust and at the same time expressly limited their liability by virtue of the provisions of section 4.10 of the trust agreement. That section, in part, provides:

“Neither the Managing Trustees nor the Trustee shall be liable for errors of judgment in exercising any of the powers or dis-cretions conferred hereby, nor for failure to sue for or collect any money or property belonging to the Trust, nor for any act or omission to act performed or omitted by the Managing Trustees ***, nor for the acts of any agent selected in good faith and with reasonable care. *** The Managing Trustees *** shall be fully protected in respect of any action under this agreement taken or suffered by the Managing Trustees *** in accordance with the opinion of counsel and in acting upon any resolution, vote, declaration, request, demand, order, notice, waiver, appointment, consent, certificate, affidavit or statement, or upon any other paper or document believed to be genuine.”

Notwithstanding the language contained in section 4.10, plaintiffs maintain that exculpatory clauses such as the foregoing should be read strictly and given no effect, relying upon Browning v. Fidelity Trust Co. (3d Cir. 1918), 250 F. 321, and New England Trust Co. v. Paine (1945), 317 Mass. 542, 59 N.E.2d 263. Plaintiffs also cite Countiss v. Whiting (1940), 306 Ill. App. 548, 29 N.E.2d 277, in which the appellate court refused to give effect to a similar exculpatory clause under the facts there presented. The cases cited involved exceptional circumstances including contraventions of public policy, instances of bad faith and intentionally committed breaches and acts performed in reckless indifference to the welfare of the beneficiaries. In contrast, the alleged wrongful acts articulated in various counts of plaintiffs’ amended complaint in this case do not rise to the level of exceptional circumstances related in the cases cited.

A brief description of the contents of the derivative counts in the present complaint suffice for consideration of this argument. In two of the counts, plaintiffs unilaterally sought modification by the circuit court of the trust agreement, as well as modification of the amendment process provided in the trust agreement itself. Five counts complained of technical violations of the trust agreement. One count claimed that defendants breached a contract entered into by the predecessor managing trustees. Dismissal of three counts are not even challenged by plaintiffs. Other counts complained of failure to properly supervise an employee, and failure to provide, maintain and publish minutes of trustees’ meetings. In none of the derivative counts did plaintiffs effectively plead abuse of discretion, gross negligence, bad faith or fraud with regard to defendants’ alleged omissions or commissions.

Although exculpatory provisions such as section 4.10 of the trust agreement do not enjoy special favor in the law, if they are inserted in a trust instrument they are generally held effective except as to breaches of trust committed in bad faith or intentionally or with reckless indifference to the interest of the beneficiary. (Perling v. Citizens & Southern National Bank (1983), 250 Ga. 674, 300 S.E.2d 649; Jarvis v. Boatmen’s National Bank (Mo. 1972), 478 S.W.2d 266; Sullivan v. Mosner (1972), 266 Md. 479, 295 A.2d 482; Jewett v. Capital National Bank (Tex. Civ. App. 1981), 618 S.W.2d 109; Dill v. Boston Safe Deposit & Trust Co. (1961), 343 Mass. 97, 100, 175 N.E.2d 911, 913, and cases therein cited; Restatement (Second) of Trusts sec. 222 (1959); 3 Scott, Trusts secs. 222-222.4 (3d ed. 1967); Bogert, Trusts & Trustees sec. 542 (2d ed. rev. 1978).) In Illinois, language expressly exempting or exculpating a trustee from personal liability, if contained in the instrument creating the trust, has also been recognized. (Kelley v. Astor Investors, Inc. (1984), 123 Ill. App. 3d 593, 598, 462 N.E.2d 996; First National Bank v. Edgeworth (1981), 94 Ill. App. 3d 873, 882, 419 N.E.2d 372; Burns v. Hines (1939), 298 Ill. App. 563, 592-93, 19 N.E.2d 382. See also Piff v. Berresheim (1950), 405 Ill. 617, 622, 92 N.E.2d 113.) In purchasing their interest in the Trust, plaintiffs impliedly acquiesced in the exculpation set forth in section 4.10. (Kelley v. Astor Investors, Inc. (1984), 123 Ill. App. 3d 593, 599.) In light of that express exculpation provided in section 4.10 and the broad powers delegated to managing trustees in the trust agreement, the circuit court properly struck and dismissed the derivative counts of plaintiffs’ second amended complaint.

Also to be noted is that counts VII, IX, X, XIII and XVII, purporting to state causes of action in breach of trust stemming from defendants’ failure to seek an accounting from their predecessors and to bring suit against them for various breaches of the trust, were the subject of a circuit court order in Wool v. LaSalle National Bank (Cir. Ct. Cook Cty., June 6, 1979), No. 77 CH 4873. That order directed defendants in the instant case not to sue their predecessors on the above-stated grounds. Nevertheless, plaintiffs assert that this order does not pose a res judicata bar to the instant cause, claiming that they did not have a full and fair opportunity to be heard in Wool. The appellate opinion in Wool noted that although plaintiffs opted out of the class action, the Axelrods “continued to appear regularly and actively in the proceedings.” (Wool v. LaSalle National Bank (1980), 89 Ill. App. 3d 560, 562.) Plaintiffs in fact appealed the circuit court’s ruling in Wool, but that separate appeal was dismissed by this court as untimely. (Wool v. La Salle National Bank (1980), 89 Ill. App. 3d 560.) Plaintiffs participated in the Wool litigation to the extent they followed the rules; they were bound by that order. (See Skolnik v. Petella (1941), 376 Ill. 500, 505, 34 N.E.2d 825.) The decision of the circuit court striking and dismissing those counts was proper on the grounds of res judicata as well.

II

The election of the successor managing trustees and the filing of the managing trustees’ affidavit of September 4, 1981, gave rise to two related legal theories of defendants: (1) that plaintiffs no longer had standing to represent the Trust in a derivative action, a theory rejected by the circuit court; and (2) that the real party in interest in the derivative claims, the Trust, had ratified defendants’ actions, a theory accepted by that court. Under either theory, the circuit court’s ultimate decision was correct.

Paragraphs 3.01 and 3.02 of the trust agreement specify that the certificate holders, such as plaintiffs, have no direct legal title to any trust property. Their interest in the Trust, therefore, is purely derivative. The trust agreement also provides that the managing trustees, alone, are empowered to represent the Trust, which includes the right to bring lawsuits on behalf of the Trust. Among the relevant provisions is paragraph 4.01, in part providing:

“The Managing Trustees shall also have full right and power *** to compromise, settle, abandon or adjust any actions, suits, proceedings, disputes, claims, demands or things related to the Trust.”

Further, paragraph 7.02 of the trust agreement provides:

“The Managing Trustees are authorized and empowered to construe this Trust Agreement and their construction made in good faith shall be conclusive and final upon the Certificate Holders and upon all of the parties hereto.”

The affidavit filed by the successor trustees announcing their decision to terminate the present lawsuit was an exercise of this power. In the absence of any claim in the record that the successor managing trustees acted other than in absolute good faith, their determination to conclude the litigation is binding on plaintiffs.

Our conclusion that plaintiffs have no standing to maintain the present suit is supported by Restatement (Second) of Trusts sec. 282 (1959). That section provides:

“Where the trustee could maintain an action at law or suit in equity or other proceeding against a third person if the trustee held the property free of trust, the beneficiary cannot maintain a suit in equity against the third person ***.”

Comment (e) to this section explains:

“If the trustee does not commit a breach of trust in failing to bring an action against the third person, as for example where it is prudent under the circumstances to refrain from bringing an action ***, the beneficiary cannot maintain a suit against the trustee and the third person.”

Since the individual defendants were no longer in office at the time of the motion for summary judgment, they stood as such third persons in their relationship to the Trust. The successor managing trustees sought to exercise prudent business judgment and were entitled to terminate the lawsuit, to the extent that it was brought derivatively on behalf of the Trust.

An analogy may be drawn to the rights of disinterested directors of a corporation to determine the best interests of the corporation in derivative litigation, where the decision that it is not in the corporation’s best interests to maintain the suit has been upheld as sufficient grounds for terminating the litigation. See, e.g., Auerbach v. Bennett (1979), 47 N.Y.2d 619, 419 N.Y.S.2d 920, 393 N.E.2d 994; Abramowitz v. Posner (2d Cir. 1982), 672 F.2d 1025; Lewis v. Anderson (9th Cir. 1979), 615 F.2d 778; Abbey v. Control Data Corp. (8th Cir. 1979), 603 F.2d 724, cert. denied (1980), 444 U.S. 1017, 62 L. Ed. 2d 647, 100 S. Ct. 670; Cohen v. Ayers (7th Cir. 1979), 596 F.2d 733; Mills v. Esmark, Inc. (N.D. Ill. 1982), 544 F. Supp. 1275; Rosengarten v. International Telephone & Telegraph Corp. (S.D.N.Y. 1979), 466 F. Supp. 817; Zapata Corp. v. Maldonado (Del. 1981), 430 A.2d 779. See also Burks v. Lasker (1979), 441 U.S. 471, 60 L. Ed. 2d 404, 99 S. Ct. 1831.

In Ash v. International Business Machines, Inc. (E.D. Pa. 1964), 236 F. Supp. 218, 220, cert. denied (1966), 384 U.S. 927, 16 L. Ed. 2d 531, 86 S. Ct. 1446, the court found that the right not to sue correlates to the right to sue. To maintain suit on behalf of the corporation, an individual shareholder must allege and prove an equitable basis for such intervention, and a shareholder is no more entitled to challenge by a derivative suit a decision by the directors not to sue than to so challenge any other decision by the board.

As stated in Auerbach v. Bennett (1979), 47 N.Y.2d 619, 633, 419 N.Y.S.2d 920, 928, 393 N.E.2d 994, 1002:

“[T]o disqualify the entire board would be to render the corporation powerless to make an effective business judgment with respect to prosecution of the derivative action. *** To assign responsibility of the dimension here involved to individuals wholly separate and apart from the board of directors would, except in the most extraordinary circumstances, itself be an act of default and breach of the nondelegable fiduciary duty owed by the members of the board to the corporation and to its shareholders, employees and creditors. For the courts to preside over such determinations would similarly work an ouster of the board’s fundamental responsibility and authority for corporate management.”

In the controversy before us, the Trust operates through elected managing trustees, rather than through hundreds of separate certificate holders. The certificate holders elected them to make the judgments necessary to carry on the business interests and affairs of the Trust. These successor managing trustees have decided that further maintenance of the lawsuit was not in the best interests of the Trust as a whole. The circuit court accepted that decision by granting the motion for summary judgment. We affirm.

III

We turn next to the application of the doctrine of ratification to the summary judgment proceedings as an alternate ground for affirmance. Ratification may take place through an express statement or may be implied through conduct. Bogert, Trusts & Trustees sec. 942 (2d ed. rev. 1982).

The successor managing trustees’ submission of their affidavits was an express ratification, a power recognized in Wichita Royalty Co. v. City National Bank (5th Cir. 1940), 109 F.2d 299, cert. denied (1940), 310 U.S. 644, 84 L. Ed. 1411, 60 S. Ct. 1097 (Wichita), and in Bogert, Trusts & Trustees sec. 942, at 464 (2d ed. rev. 1982), which states that “[a] successor trustee may act for the beneficiary in ratifying an act of a predecessor trustee.” In Wichita, a trustee made an unauthorized investment for the trust there involved. A successor trustee was substituted for him. This successor trustee, having been fully informed of the questionable actions of his predecessor, as here, accepted trust ownership of the property, together with certain encumbrances placed upon the property. The beneficiary and the successor trustee later attempted to avoid payment of mortgage notes and further sought relief against the predecessor trustees. The Wichita court held that the successor trustee’s adoption of his predecessor’s acts barred any relief for either the beneficiary or successor trustee. Both were bound by the acts of the predecessor even though contrary to the trust agreement. Although the action in Wichita was commenced by the bank against the successor trustee on a note, whereas here the action was begun by beneficiaries, no significant difference exists in applying the doctrine of ratification in this case, since the beneficiary ultimately objected to the conduct of the former trustee in both instances. Here, the successor managing trustees exercised power delegated to them by the trust agreement to speak for all beneficiaries and to administer the Trust according to their best business judgment, in this case, to ratify the actions of the defendants. The circuit court’s finding to that effect was correct and must be affirmed.

IV

Plaintiffs’ final argument is that the circuit court’s decision for defendants on count XX, after an eight-day trial, was contrary to law and against the weight of evidence. This count alleges that defendants maliciously delayed plaintiffs’ obtaining a certificate of beneficial interest in the Trust as tenants in common. Plaintiffs maintain that defendant Jeffers unilaterally revoked the trustees’ acceptance of a plan to transfer the certificate to plaintiffs as tenants in common. This unilateral revocation is construed by plaintiffs to violate the trust agreement provision requiring three trustees to take such action. Further, plaintiffs seek to impose liability on Jeffers’ co-trustees for this alleged breach.

The evidence reveals that certificates of beneficial interest may be transferred only upon approval in writing by the managing trustees. When plaintiffs first requested such transfer in December 1978, it was to have effectuated transfer from Mrs. Axelrod to her husband and herself as joint tenants. This transfer was approved by the managing trustees and certificates forwarded to the corporate trustee, La Salle National Bank, in January 1979. In that same month, January 1979, Mrs. Axelrod executed a different assignment form which requested transfer of her certificate of beneficial interest from herself to her attorney and the attorney executed an assignment from himself to plaintiffs, this time as equal tenants in common. These forms were sent by the attorney directly to the bank rather than to the managing trustees for approval as required by the trust agreement. In March 1979, the bank sent the forms to the building manager for approval by the managing trustees, who had just previously approved transfer from Mrs. Axelrod to plaintiffs as joint tenants. In April 1979, a bank officer wrote directly to trustee Jeffers, seeking clarification, but making no mention of the transfer to plaintiffs’ attorney as a “straw man.” A newly employed building manager then sent a formal request for transfer of Mrs. Axelrod’s beneficial interest from her name only to plaintiffs as tenants in common, with no mention of the interceding straw man transfer desired by plaintiffs. The managing trustees approved the request, and the approvals were forwarded to the bank in April 1979.

In May 1979, a bank officer called one managing trustee’s attention to the straw man aspect of the intended transfer. That trustee, Jeffers, who was one of the three approving the transfer, advised the bank officer that, since a transfer to one not a building resident would be required, he was unsure of the authority to approve such a procedure without the managing trustees acting as a board and would check with the trustee’s attorney. Jeffers contacted the attorney, who advised that no such transfer could be effected without approval of the board of managing trustees. Meanwhile, the bank officer, in May 1979, returned plaintiff’s request to transfer to plaintiffs’ attorney, stating that the straw man transfer was not authorized by the board of managing trustees, but that a transfer directly from Mrs. Axelrod to plaintiffs as tenants in common would be. Plaintiffs’ amended complaint, filed in December 1979, asked for a mandatory injunction to effect the transfer to plaintiffs as tenants in common.

In response to a letter from one of plaintiffs’ attorneys, one of defendants’ attorneys advised that the documents had been forwarded to the bank “with directions to complete the transfer as you requested.” In February 1980, the bank issued the requested certificates. Nevertheless, in August 1980, plaintiffs filed a second amended complaint, among other things, seeking to have Mrs. Axelrod’s certificate of beneficial interest transferred to plaintiffs as tenants in common through the use of a straw man. In a pretrial conference in April 1982, in chambers, however, plaintiffs’ attorney no longer sought a straw man transfer, but for the first time demanded reissuance of the certificates of beneficial interest in the properties not equally, but showing a 99% beneficial ownership in Mrs. Axelrod and 1% in her husband. After on-going discussions, the managing trustees agreed to do so, by letter dated August 30, 1982. Notwithstanding this agreement, plaintiffs filed a third amendment to count XX, seeking mandatory relief to compel the managing trustees to do what they had previously agreed to do, this amendment being filed in December 1982.

In May 1983, Mr. Axelrod and his attorney appeared at defendants’ attorney’s office for deposition, bringing with them completed forms for assignment of the certificates of beneficial interest from plaintiffs to plaintiffs’ attorney’s secretary, with a form reassigning the certificates to plaintiffs as tenants in common, 99% interest in Mrs. Axelrod and 1% interest in her husband. Irrespective of the assignments presented, however, plaintiffs’ attorney now requested that the bank issue the certificates directly to plaintiffs without issuance thereof first to his secretary. The certificates were reissued as most recently requested in May 1983, to the satisfaction of plaintiffs, both as to form and substance, as one of plaintiffs testified in July 1983. Yet, in September 1983, plaintiffs filed their fourth amendment to count XX, claiming that Jeffers countermanded approval by the board of managing trustees, which authorized transfer of the certificates of beneficial interest through a straw man to plaintiffs. Not surprisingly, the circuit court resolved the issue for defendants.

The rather lengthy discourse of the evidence set forth above demonstrates most eloquently and with great force the frivolous, wasteful and needless expense of this litigation, despite actual transfers made and willingness to make other transfers of plaintiffs’ beneficial interests by the board of managing trustees. Moreover, the history of events in the claims set forth in count XX are in character with many of the derivative claims made by plaintiffs. We find no error.

This litigation has been overly extended, arduous, tedious and exceedingly hard fought. In evaluating the wisdom of the successor trustees to put an end to this seemingly interminable controversy, the words of another court, used in a different context, are appropriate here as well. Mr. Justice Ulysses S. Schwartz, in Payne v. Pullman Co. (1957), 13 Ill. App. 2d 105, 119, 141 N.E.2d 83, stated in part:

“Eminent jurists and lawyers at times have felt that no misfortune, short of smallpox or hydrophobia, is greater than involvement in serious litigation. The long delays, the cumbersome machinery, and the great expense combine to make our judicial system the subject of bitter denunciation. To hold that this should be the resort to which a plaintiff could go for a fresh start after an adverse finding in a plan of arbitrament which provides for a hearing and two appeals would be piling Ossa on Pelion. Even those of us who have faith in our profession and its ability ultimately to solve the problems which beset it must realize that laymen have ample justification for seeking to avoid becoming enmeshed in its toils.”

For the foregoing reasons, the judgment of the circuit court was correct. Accordingly, we must affirm.

Affirmed.

DOWNING and PERLIN, JJ., concur.

      An examination of the summary judgments entered by the circuit court demonstrates the correctness of the circuit court’s rulings thereon for other reasons as well. Plaintiffs contend that count VI, dealing with an allegedly illegal expenditure of $14,000 for light bulbs, should not have been disposed of by summary judgment because of the presence of genuine issues of fact. They assert that the light bulb transaction (count VI) constituted a variety of breaches of defendant trustees’ fiduciary duties, in that the purchase of an excessive number of light bulbs constituted a clear breach of trust which raised the factual issue of whether defendants acted carefully, prudently and diligently. Defendants’ motion for summary judgment as to this count was supported by the affidavits of two trustees who averred that the request to purchase the bulbs came from the building manager; that the bulbs were to have been of exceptional quality and low price; that the building was low on bulbs; and that the trustees simply exercised a business judgment. No countervailing affidavits were filed by plaintiffs; therefore, the material facts set forth in defendants’ affidavits were admitted. Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 425 N.E.2d 1055; Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810.
      With respect to count XXI, dealing with the purchase of air vents, plaintiffs maintain that summary judgment was also inappropriate because the purchase violated both a provision in the Trust Agreement prohibiting trustee self-dealing, and the fundamental duty of loyalty imposed on trustees of all trusts. (2 Scott, Trusts sec. 170, at 1297 (3d ed. 1967).) Further, plaintiffs note that the circuit court’s initial entry of summary judgment in their favor against defendant Kyts indicates a finding of breach of trust. That finding was subsequently vacated by the circuit court. Defendants admit that there was a technical violation of the trust agreement in this transaction; however, they maintain that the transaction was not claimed to have been unfair. The vents were retained and used in the building. Because defendant Kyts had allegedly invented, manufactured and distributed the vents, he was alleged to have had a conflict of interest. Three other managing trustees who voted to purchase the vents did not. This disinterested majority had the power to approve the transaction, making it valid and binding. Morris v. North Evanston Manor Building Corp. (1943), 319 Ill. App. 298, 49 N.E.2d 646; Bunker Hill Country Club v. McElhatton (1935), 282 Ill. App. 221.

      Although the ratification affidavit was filed in support of the motion for summary judgment after certain of the derivative counts were stricken and dismissed for insufficiency, had it been filed in support of a section 2 — 619(a)(9) (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619(aX9)) motion as setting forth affirmative matter avoiding the legal effects of or defeating the claims contained in the derivative counts, the circuit court might well have been justified in dismissing those counts upon the basis of ratification as well.

      The necessity for “straw man” transfers had been abolished 26 years before then (Ill. Rev. Stat. 1953, ch. 76, pars. 1(b), 2.1), even if the transfer had involved realty (see Minonk State Bank v. Grassman (1982), 103 Ill. App. 3d 1106, 432 N.E.2d 386, aff'd (1983), 95 Ill. 2d 392); however, under section 3.01 of the trust agreement, a certificate of beneficial interest is personalty. Interestingly, the historic use of a straw man in such transfers was to preclude joint tenancy estates from being considered as tenancies in common. (Deslauriers v. Senesac (1928), 331 Ill. 437, 163 N.E. 327.) Here plaintiffs’ express intent was to create a tenancy in common.

       Justice Downing participated in the decision of the above-captioned case before the expiration of his term in office.


text:
    RIDGE OUTDOOR ADVERTISING COMPANY, INC., Plaintiff-Appellee, v., THE VILLAGE OF INDIAN HEAD PARK et al., Defendants-Appellants.
    First District (2nd Division)
    No. 84—193
    Opinion filed December 11, 1984.

      E.E McDonnell, Jr., Bruno W. Tabis, Jr., and Diane M. Curtis, all of Chicago (Anderson, McDonnell, Miller & Tabis, of counsel), for appellants.
    Vincent Cainkar, of Louis F. Cainkar, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

After remand, following the first appeal in this case, the circuit court granted plaintiff, Ridge Outdoor Advertising Company, Inc. (Ridge), the right to construct a sign under an ordinance adopted in 1982 by defendant, Village of Indian Head Park (village), a non-home-rule municipality. The village appeals. Just prior to this second appeal, the village amended its ordinance with respect to the point from which the height of outdoor signs should be measured. The village urges this court to find that the sign proposed by Ridge does not conform to the requirements of the former ordinance; alternatively, the village asks this court to take judicial notice of the 1984 ordinance amendment and to find that the proposed sign should be evaluated by the new standard therein contained. We reject both of the village’s alternatives.

In the first appeal of this cause, Ridge had secured a declaratory judgment against the village, giving it the right to build and maintain the proposed sign. In a Supreme Court Rule 23 order (87 Ill. 2d R. 23), Ridge Outdoor Advertising Co. v. Village of Indian Head Park (1983), 117 Ill. App. 3d 1160, we held, inter alia, that the village ordinances governing the construction and maintenance of outdoor signs did not violate the Highway Advertising Control Act of 1971 (Ill. Rev. Stat. 1983, ch. 121, par. 501 et seq.) (Act), that Ridge had the right to build its proposed sign, and that although the village could enact regulations concerning matters not previously contemplated, it could not enact measures designed to harass Ridge.

Subsequent to our first decision, Ridge filed an application with the village on October 11, 1983, for a permit to build its illuminated sign. The village responded by letter enumerating certain deficiencies in the application. In late November 1983, Ridge sent a letter to the village purporting to satisfy any deficiencies in its original application. Ultimately, Ridge filed a motion to compel issuance of a building permit, and the circuit court heard arguments on whether the permit should issue.

The circuit court first dealt with the question of the sufficiency of the permit application. Some dispute was raised as to Ridge’s alleged failure to comply with certain electric codes; however, the village conceded that this was a minor point. The circuit court distilled the issue before it as whether the proposed sign was in compliance with the village ordinance regulating the height of such signs.

The ordinance in effect at the time of the circuit court hearing was Ordinance No. 82 — 2, which provided that no ground-based sign could be erected whose overall height, including ornamental base or apron, supports and other structural members exceeded 40 feet above the level of the street upon which the sign faces, or above the adjoining ground level, if the ground level is above the street level. The question before the circuit court was whether, under this ordinance, the sign proposed by Ridge should be measured from 1-294, the Illinois tollway grade, at that point a northwest and southeast expressway, or from Wolf Road, a north-south local highway passing under the tollway, east of the proposed sign. As indicated by a plat of survey, the tollway is approximately 22 feet higher in elevation than Wolf Road. If the sign were measured from that grade it would be within the 40-foot limitation; if measured from Wolf Road, it would exceed that limit. The circuit court ruled that the height limit should be measured from the tollway because it was that highway’s motorists whose attention the sign was designed to attract. On December 21, 1983, the court ordered that the proposed sign be measured from the tollway.

The village filed this second appeal from that order on January 18, 1984. On January 12, 1984, however, the village had passed an amendatory ordinance (No. 84 — 2) which altered the scheme for measuring a sign’s height, prohibiting any sign whose overall height, including ornamental base or apron, supports and other structural members, exceeds 40 feet above the lowest natural grade level immediately beneath the sign and adjoining the area upon which the support or supports are constructed. Thus, the permissible height of the sign would no longer be dependent upon its height as measured from the grade level of a traveled roadway, but by its height above the immediately surrounding grade level. Ridge’s proposed sign would be approximately 63 feet above the natural grade level upon which it would rest and therefore would violate Ordinance No. 84 — 2.

I

The village first argues that Ordinance No. 82 — 2, the ordinance in effect at the time of the circuit court order, should be construed so that its 40-foot height limitation on signs is measured from any street which a sign will face. The village maintains that legislative intent evidenced by an ordinance’s terminology (City of Chicago Heights v. Old Orchard Bank & Trust Co. (1981), 96 Ill. App. 3d 789, 422 N.E.2d 69), and the interpretation placed upon an ordinance by the body that enforces it (First National Bank & Trust Co. v. City of Rockford (1977), 47 Ill. App. 3d 131, 361 N.E.2d 832), are significant factors in its construction. Under these rules of construction, the ordinance term “face” should be construed to mean “to have the front toward or permit a view of.” This meaning assertedly takes into account the purpose of an outdoor sign to display messages, and requires the proposed sign to be measured from Wolf Road because it would be parallel to and visible from that road.

The village also cites cases for the proposition that when a proposed structure is subject to more than one standard of limitation, the most stringent standard should control (Paulus v. Smith (1966), 70 Ill. App. 2d 97, 217 N.E.2d 527; National Advertising Co. v. Department of Transportation (1979), 149 Ga. App. 334, 254 S.E.2d 571; Fritz v. Beem (1945), 199 Ga. 783, 35 S.E.2d 513), in this case the height as measured from Wolf Road. The village contends that its interpretation of Ordinance No. 82 — 2 is reasonable in focusing on a sign’s zone of visual impact and is consistent with the legislative intent to further aesthetic and safety goals, which are recognized as valid policy reasons for government regulation of outdoor signs. (Metromedia, Inc. v. City of San Diego (1981), 453 U.S. 490, 69 L. Ed. 2d 800, 101 S. Ct. 2882; Village of Skokie v. Walton on Dempster, Inc. (1983), 119 Ill. App. 3d 299, 456 N.E.2d 293.) Lastly, the village urges that the circuit court employed an unmanageable standard whereby the street from which to measure a sign’s height is determined by the street which the land user claims his sign is intended to face. On these bases the village maintains that the circuit court erred in holding that Ordinance No. 82 — 2 required the height of the proposed sign to be measured from the tollway, and urges this court to reverse and remand this cause with instructions to order that the sign be measured from Wolf Road.

If the village’s interpretation of the ordinance were accepted, a sign 40 feet above the level of Wolf Road would be only approximately 18 feet above the level of the tollway, giving rise to the result that only a portion of the sign’s message would be visible to tollway traffic. That the sign is intended to be viewed by tollway traffic is evidenced by Ridge’s application for a State permit stating that fact. Also, the sign will be closer to the tollway than Wolf Road. Both faces of the sign are to be placed so as to be seen by oncoming tollway traffic in both directions, but only parallel to Wolf Road, which would afford a passing motorist but a passing glimpse. A sign regulatory ordinance must be construed in a manner calculated both to extend protection to moving motorists (Paulus v. Smith (1966), 70 Ill. App. 2d 97, 112, 217 N.E.2d 527) and to avoid more severe restrictions inconsistent with regulations set forth in the Act (Ill. Rev. Stat. 1983, ch. 121, par. 501). Because of the problem presented by the presence of Wolf Road east of the proposed sign, the interpretation of Ordinance No. 82 — 2 suggested by the village would functionally effectuate such a more severe restriction, since only 18 feet of the sign’s vertical face would be visible to motorists on the tollway, notwithstanding the permissible 30 feet of sign height allowed by the Act. (Ill. Rev. Stat. 1983, ch. 121, par. 506.01.) We decline to place such a strained meaning on the ordinance in this physical setting.

We conclude that the circuit court did not err in holding that under Ordinance No. 82 — 2 the height of the proposed sign must be measured from the tollway.

II

As an alternative argument, the village asks that we take judicial notice of the 1984 amendatory ordinance and apply its standard to the proposed sign. Under the Illinois Code of Civil Procedure, circuit courts are bound to take judicial notice of municipal ordinances and appellate courts are bound to take judicial notice of that which the circuit court must judicially notice. (Ill. Rev. Stat. 1983, ch. 110, pars. 8 — 1001, 8 — 1002.) Therefore, we take judicial notice of Ordinance No. 84 — 2, and address the issue of whether its provision should govern the proposed sign.

The village argues that the new ordinance is controlling despite the fact that it was passed just prior to the village’s second appeal to this court, maintaining that Ridge cannot rely on the continuance of the former ordinance, citing O’Hare International Bank v. Zoning Board of Appeals (1976), 37 Ill. App. 3d 1037, 347 N.E.2d 440 (O’Hare). In that case, a circuit court order directing the zoning board to issue a building permit was reversed on appeal because plaintiff’s complaint was defective. The complaint was amended, and plaintiffs again obtained a judgment in their favor. On the second appeal, the appellate court held that the circuit court erred in relying on an ordinance that had been repealed during the pendency of the first appeal and declared that “[a] municipality may effectively repeal an ordinance after a trial court has rendered a judgment under it and while the case is pending on appeal. The controlling provision is the newly enacted one.” (37 Ill. App. 3d 1037, 1039, 347 N.E.2d 440.) The village maintains that O’Hare states a general rule subject only to exceptions not applicable to Ridge. We disagree.

The 1984 amendatory ordinance does not control. This court, in its first decision, explicitly found that Ridge had the right to build its sign subject to height constraints in consonance with the Advertising Control Act and the ordinance provisions previously held valid by this court, and specifically declared that the village could not amend its ordinance for the purpose of harassing Ridge, although it could regulate matters which previously it had not considered. The height limitation patently had been contemplated by the village under Ordinance No. 82 — 2. Once the circuit court rendered its decision, the rights of the parties were established. An amendatory ordinance such as No. 84 — 2 cannot alter the court order establishing those rights. (First National Bank v. Village of Skokie (1967), 85 Ill. App. 2d 326, 229 N.E.2d 378; Kamysz v. Village of Wheeling (1978), 65 Ill. App. 3d 629, 382 N.E.2d 349; see also Fiore v. City of Highland Park (1968), 93 Ill. App. 2d 24, 33, 235 N.E.2d 23, cert. denied (1969), 393 U.S. 1084, 21 L.Ed. 2d 776, 89 S. Ct. 867.) In O’Hare, relied on by the village, the court was not faced with the question, as here, of whether the municipality could frustrate and void its opinion and mandate by rezoning after judgment favorable to plaintiff, the builder. (See Kamysz v. Village of Wheeling (1978), 65 Ill. App. 3d 629, 640-41, 382 N.E.2d 349.) In the case at bar, we affirmed the circuit court’s original finding of a right in Ridge to build its sign subject to height constraints in consonance with the Advertising Control Act and the ordinance provisions previously held valid by this court; therefore, the proposed sign need not be evaluated by the standard set out in Ordinance No. 84 — 2.

For the foregoing reasons,, we affirm and remand with instructions to proceed consistent with the opinion herein expressed.

Affirmed and remanded.

STAMOS and DOWNING, JJ., concur.

       Justice Downing participated in the decision of the above-captioned case before the expiration of his term in office.