author: PRESIDING JUSTICE SULLIVAN

text:
    PATRICK F. HEALY et al., Plaintiffs-Appellees, v. ALEX J. ROBERTS et al., Defendants-Appellants.
    First District (5th Division)
    No. 81—2821
    Opinion filed September 29, 1982.

      Getzoff & Getzoff, of Chicago (William M. Getzoff, of counsel), for appellants.
    Berger and Herman, Ltd., of Chicago (Burton Berger and Judith Berger Feder, of counsel), for appellees.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendants appeal from an order granting plaintiffs a prescriptive easement over an alley crossing the property of defendants and directing defendants to restore the alley to good and usable condition and to so maintain it at all times.

The parties reside in homes on adjoining parcels of property in Midlothian, Illinois. Their homes are 2 of 10 built approximately 80 years ago — all of which face south on Cottage Row. A gravel alley crosses the 10 lots approximately 170 feet south of their north lot lines, beginning in the east at Laramie Avenue and ending in the west at lot number 10 where plaintiffs reside. Defendants reside immediately to the east of plaintiffs, on lot number 9. Although the alley does not appear in public records, testimony established that it has been in continuous use since at least 1927.

The property now owned by plaintiffs was purchased by Hoyt and Ann Corley in 1951, and from then until 1970 the Corleys used the alley to pass from their home on lot 10, across lot 9 and all other lots to reach Laramie. Plaintiffs purchased the property from the Corleys in 1970 and continued to use the alley in a similar fashion. Defendants purchased their home in 1977 and, before buying, they informed plaintiffs of their intention to close the road, but they did pot do so when plaintiffs objected.

On occasions, after they moved in, defendants parked a vehicle so as to block the alley behind defendants’ residence. Once defendants plowed snow to form an embankment across the alley, and on another occasion they placed railroad ties to prevent use of the alley. Plaintiffs filed this action asking that defendants be enjoined from interfering with their use of the alley. After receiving a summons in this action, defendants built a barricade 2/a feet high across the alley.

The trial court found that the alley had been used openly, exclusively, continuously, and uninterruptedly for over 20 years by plaintiffs and their predecessors in title, and that a prescriptive easement had been established. Defendants were ordered to remove all obstructions and obstacles, to restore the alley to good and usable condition, and to maintain the alley in that condition at all times. They were further permanently enjoined from blocking and/or interfering with plaintiffs’ use of the alley. Defendants’ motion for reconsideration was denied, and this appeal timely followed.

Opinion

We first consider defendants’ assertion that the finding of a prescriptive easement was against the manifest weight of the evidence. In order to acquire an easement by prescription, a claimant must show that the use of the land was adverse, exclusive, continuous and uninterrupted, and under claim of right for a period of at least 20 years (Petersen v. Corrubia (1961), 21 Ill. 2d 525, 173 N.E.2d 499; Lawson v. Hill (1979), 77 Ill. App. 3d 835, 396 N.E.2d 617) and, where there has been privity between the users of the property, periods of use may be tacked together in order to satisfy the required prescription period (Roller v. Logan Landfill, Inc. (1974), 16 Ill. App. 3d 1046, 307 N.E.2d 424). Exclusivity means that the claimant’s rights do not depend on the rights of others, not that the claimant alone used the easement. (Ritter v. Janson (1967), 80 Ill. App. 2d 169, 224 N.E.2d 277.) To establish claim of right, it is not essential that plaintiffs offer proof of an oral declaration of right, but it is sufficient if the evidence shows that they acted in such a manner as to clearly indicate that they claimed the right to use of the property (Petersen v. Corrubia) and that its use was not a mere privilege or license (Chicago, Burlington & Quincy R.R. Co. v. Johnson (1903), 205 Ill. 598, 68 N.E. 1112). Further, to meet the requirements of adverse use, “the use must be with the knowledge and acquiescence of the owner but without his permission” (Ruck v. Midwest Hunting & Fishing Club (1968), 104 Ill. App. 2d 185, 190, 243 N.E.2d 834, 837), and the establishment of a prescriptive easement is almost always a question of fact, especially with regard to whether a use is adverse or permissive (Keck v. Scharf (1980), 80 Ill. App. 3d 832, 400 N.E.2d 503).

Defendants essentially contend the evidence does not establish that the use of the driveway was exclusive and under claim of right for the prescriptive period of 20 years.

Their contention that plaintiffs’ use of the alley was not exclusive rests on evidence of use by all the neighbors as well as members of the public in general. This evidence refers to the use of the alley as a whole — not specifically to that portion of the alley which is on defendants’ property and, thus, they argue that if all the neighbors could not use the alley, none of them could. They term this concept “interchangeability” and assert that it makes plaintiffs’ right dependent on the rights of other neighbors and therefore that it is nonexclusive. We find nothing in the evidence to support this argument. While in cross-examining witnesses, defendants several times included the word “interchangeable” when asking whether all neighbors used the alley, it is our view that the witnesses’ answers tell us only that others besides plaintiffs used the alley — a fact which does not negate exclusivity.

Defendants further maintain that plaintiffs’ use of the alley was not exclusive because it was indistinguishable from use by the general public. All of the evidence indicates, however, that there was a substantial question of fact on this point. While various witnesses described the alley as “public” and testified that “everyone” used it, other testimony indicates that the only reason to traverse that portion of the alley located on defendants’ property was to reach plaintiffs’ property where the alley ended. Plaintiffs used the alley to reach their property, deliveries were made over the alley to them, and various other services were provided to them by way of that alley. The trial court determined this factual question in plaintiffs’ favor, and we cannot say its finding is contrary to the manifest weight of the evidence.

Defendants also posit that the evidence fails to establish a claim of right. To the contrary, we believe the actions of plaintiffs and their predecessors in title were sufficient to show use under a claim of right. The record discloses that the Corleys and later the Healys used the alley continuously and openly, without asking permission of defendants or their predecessors in title from 1951 to 1981. Defendants argue, though, that permissive use may be presumed where there is a showing of a neighborly relationship between the parties. While we agree that evidence of a neighborly relationship may give rise to a rebuttable presumption of permissive use (Burrows v. Dintlemann (1976), 41 Ill. App. 3d 83, 353 N.E.2d 708), we do not find sufficient evidence in the record here to support such a presumption. There were statements that neighbors, in general, were friendly and cooperative, but the record reveals no evidence as to the nature of the relationship between the Corleys and the Healys and defendants’ predecessor in title. Certainly the relationship between the plaintiffs and defendants was far from neighborly, and generalizations about others in the neighborhood tell us nothing about the particular parties in question. Moreover, as noted above, there is ample evidence of non-permissive use. Therefore, we view it to be clear from the greater weight of the evidence that from at least 1951 to 1981 defendants or their predecessors in title knew of the use of the alley by the Corleys and Healys, acquiesced in, but never gave permission for such use.

Finally, defendants argue that the 20-year prescriptive period has not been satisfied. This argument, however, rests entirely on the assumption that exclusive use and claim of right were not established prior to 1977. We considered these questions above and determined that there is sufficient evidence to sustain a finding that these requisites of an easement by prescription existed from at least 1951 and find those determinations to be dispositive of this argument. In the light of the above, we conclude the finding of the trial court that plaintiffs established a prescriptive easement is not contrary to the manifest weight of the evidence.

We next consider defendants’ contention, not answered by plaintiffs in their brief, that the trial court erred in ordering defendants to restore the alley to good condition and thereafter maintain it. Defendants were ordered to “immediately remove any obstructions and obstacles and fill in said alley with proper material and to restore said alley in a good and usable condition and to maintain said alley so that it is in a good and usable condition at all times.”

It is the owner of the easement who has the duty to keep the easement in repair, and as a general rule the owner of the servient tenement has no duty to put or keep the easement in repair. (Triplett v. Beuekman (1976), 40 Ill. App. 3d 379, 352 N.E.2d 458.) However, in appropriate circumstances, the court may issue a mandatory injunction directing the owner of the servient tenement to remove obstructions (Ogilby v. Donaldson’s Floors, Inc. (1958), 13 Ill. 2d 305, 148 N.E.2d 758) or restore a roadway to its original condition (LeClerq v. Zaia (1975), 28 Ill. App. 3d 738, 328 N.E.2d 910).

We find that this is a proper case for issuance of such a mandatory injunction. Defendants placed obstructions across the alley, some of a temporary but others of a more permanent nature, in order to hamper or prohibit use of the easement. In addition, there is evidence that defendants have placed railroad ties across the alley and removed the gravel therefrom. Just as they have taken affirmative steps to impede plaintiffs’ use of their easement, defendants should be required to restore the alley to a good and usable condition as ordered by the trial judge.

We do not agree, however, that defendants have a duty to maintain the alley once it has been restored to good and usable condition, because then the general rule that the burden of maintaining the easement is on the owner of the dominant tenement is applicable.

For the reasons stated, we reverse that portion of the order appealed from which requires defendants “to maintain said alley so that it is in good and usable condition at all times,” but we affirm the remainder of the order.

Affirmed in part. Reversed in part.

LORENZ and WILSON, JJ., concur.

       We assume the order refers to that portion of the alley on defendants property, as there appears to be no evidence that defendants impeded the use of any other portion of the alley.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    BETTY SANDER HARVEY, a/k/a Davis, Plaintiff-Appellant, v. JOHN R. MACKAY, Defendant-Appellee.
    First District (1st Division)
    No. 81—0825
    Opinion filed September 27, 1982.

      Betty Sander Harvey, of River Forest, for appellant, pro se.

    French & Rogers, of Chicago (Richard G. French, Dorothy F. French, and Annie-Laurie Coogan, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff Betty Sander Harvey, pro se, appeals from an order entered by the circuit court of Cook County granting defendant John R. Mackay’s motion to dismiss plaintiff’s redraft of her fourth amended complaint. The sole issue for review is whether the trial court erred in so dismissing.

For the reasons hereinafter set forth, we affirm.

Plaintiff, pro se, filed an action in the circuit court arising out of the alleged negligence and breach of contract by defendant in the performance of legal services. Defendant, an attorney, was retained by plaintiff to investigate and protect plaintiff’s interests arising out of the probate and settlement of her father’s estate. Plaintiff believed that certain irregularities during the probate of the estate resulted in the diminution of the estate assets and deprived her of her proper inheritance. These issues have also been the subject of prior litigation in both the circuit and appellate courts. Harvey v. Harris Trust & Savings Bank (1979), 73 Ill. App. 3d 280, 391 N.E.2d 461 (Harvey I); Harvey v. Connor (1980), 85 Ill. App. 3d 1061, 407 N.E.2d 879, appeal denied (1980), 81 Ill. 2d 602 (Harvey II).

In Harvey I, plaintiff alleged in a pro se complaint that the Harris Trust & Savings Bank (Harris Bank) had breached its testamentary trust of the decedent in renouncing its nomination as executor of the estate of plaintiff’s father. That complaint was dismissed by the circuit court for failure to sustain a cause of action and because the action was time barred. (73 Ill. App. 3d 280, 285.) Counsel retained by plaintiff attempted to vacate this order, alleging fraudulent concealment of a cause of action by Harris Bank. On appeal, this court found nothing in the record to suggest fraudulent acts or representations concealing a cause of action. (73 Ill. App. 3d 280, 287.) We also found that the complaint had been filed over five years after the events relied on in that action had transpired. 73 Ill. App. 3d 280, 288.

In Harvey II, plaintiff charged the attorney who represented her during the probate proceedings with legal malpractice. The complaint in that case, also filed pro se, accused the attorney of aiding others to loot her father’s estate and to defraud her. The case was dismissed because of the applicable statute of limitations. (Ill. Rev. Stat. 1977, ch. 83, par. 16.) On appeal, this court found the regular five-year limitations period applied to the case, even when considering the allegations of fraudulent conduct. 85 Ill. App. 3d 1061, 1063.

In this case, plaintiff’s redraft of the fourth amended complaint contains seven counts alleging various acts of negligence and breach of contract in representing her interests. The first three counts basically attempt to allege negligence on the part of defendant, while the remaining counts sound in breach of contract.

Count I attempts to allege that defendant negligently failed to file suit against the Harris Bank within the proper statute of limitations. Defendant was retained to recover alleged financial losses sustained by plaintiff during the administration of her father’s estate and “to seek redress against those determined to be responsible.” A retainer fee was paid to defendant. The allegations contained in this count recite many of the events surrounding the probate proceedings of her father’s estate, particularly the refusal of Harris Bank to accept its nomination as executor.

Count II alleges that defendant was negligent in the examination of the title to a parcel of real estate which had been an asset of her father’s corporation. Because of this alleged negligence plaintiff claims she was not aware of a cause of action for false misrepresentations against her stepmother as the administrator of the estate. Count III also alleges negligence in that defendant advised plaintiff that her stepmother was a proper heir of the estate. In making this claim, plaintiff relies on the allegation that the will disinherited her stepmother if she elected to renounce it.

Count IV is similar in its allegations to count I. This count, however, attempts to allege a breach of contract for defendant’s failure to bring a lawsuit against Harris Bank. Count V alleges a breach of contract by defendant for not bringing suit against Charles Connor, the attorney who represented plaintiff during the probate proceedings. This count alleges fraudulent acts by Connor in covering up the wrongful acts of Harris Bank. It also alleges that her pro se action against Connor was dismissed as time barred by application of the statute of limitations.

Counts VI and VII also attempt to make breach of contract allegations against defendant. These counts contain broad allegations of fraudulent acts by her stepmother and several attorneys who represented the various parties during the probate proceedings. These acts, it is alleged, led to the loss of estate assets and resulted in a fraudulent settlement agreement entered into by plaintiff, her stepmother and sister. Defendant allegedly breached the retainer contract with plaintiff by not petitioning to set aside the settlement agreement and also not filing suit against the parties who allegedly perpetrated the fraudulent activities.

The original complaint in this cause was filed on June 9, 1977. On three occasions in the next 13 months plaintiff amended the complaint on her own motion. Defendant moved to strike and dismiss that complaint as amended for, among other reasons, failure to state a cause of action. That motion was granted, and plaintiff was allowed 56 days to file a new amended complaint. A fourth amended complaint was filed in May 1979 and was again subject to defendant’s motion to strike and dismiss. In November 1979 plaintiff was granted leave to present a redraft of the fourth amended complaint “following the guidelines set out by the Court.”

Several paragraphs and improper prayers for relief in the redraft were stricken by order of the court in March 1980. Plaintiff, feeling that the court was prejudiced against her, requested a change of venue. This motion was denied in July 1980. A motion to vacate this order was also denied by the trial court.

On March 9, 1981, defendant’s motion to strike and dismiss plaintiff’s redraft of the fourth amended complaint was granted. Dismissal was with prejudice for failure to state a cause of action and was without leave to amend.

The Civil Practice Law (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 101 et seq.) establishes the requirements within which a court operates in determining the sufficiency of pleadings. Section 2 — 603(a) (formerly section 33(1) of the Civil Practice Act) states that “[a]ll pleadings shall contain a plain and concise statement of the pleader’s cause of action ***.” Section 2 — 603(c) (formerly section 33(3)) provides that “[pleadings shall be liberally construed with a view to doing substantial justice between the parties.” And section 2 — 612(b) (formerly section 42(2)) states “[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” Nothing in this liberal pleading doctrine, however, requires a defendant to go to trial on a complaint that does not allege facts sufficient for a cause of action. Tondre v. Pontiac School District No. 105 (1975), 33 Ill. App. 3d 838, 342 N.E.2d 290; Consolidated Construction Co. v. Great Lakes Plumbing & Heating Co. (1967), 90 Ill. App. 2d 196, 234 N.E.2d 378.

It is hornbook law in Illinois that a motion to dismiss does not admit conclusions of law or fact unsupported by allegations of specific facts upon which such conclusions rest (Denkewalter v. Wolberg (1980), 82 Ill. App. 3d 569, 402 N.E.2d 885) or “opinions, argumentative matter, irrelevant material, or other parts not properly pleaded.” (Palier v. Dreis & Krump Manufacturing Co. (1967), 81 Ill. App. 2d 1, 5, 225 N.E.2d 67, appeal denied (1967), 36 Ill. 2d 631.) Even though pleadings are to be liberally construed and a motion to dismiss admits all facts well pleaded, in considering a motion to dismiss the pleadings are to be construed strictly against the pleader. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976; Carroll v. Caldwell (1957), 12 Ill. 2d 487, 147 N.E.2d 69; Gagne v. Village of La-Grange (1976), 36 Ill. App. 3d 864, 345 N.E.2d 108.) The purpose in attacking defects in pleadings is to point out the defects so that the complainant will have an opportunity to cure them before trial. (Hild v. Avland Development Co. (1977), 46 Ill. App. 3d 173, 360 N.E.2d 785, appeal denied (1977), 66 Ill. 2d 630; Knox College v. Celotex Corp.) The granting of a motion to strike and dismiss is within the sound discretion of the trial court. Knox College v. Celotex Corp.

Our examination of the seven counts in the redraft of the fourth amended complaint reveals many of the allegations are conclusions made by plaintiff or are facts which have no bearing on her alleged causes of action. Count I alleges a failure to file a lawsuit against Harris Bank on plaintiff’s behalf. Plaintiff alleges in conclusory statements that Harris Bank failed to preserve the assets of her father’s estate and wrongfully usurped the income therefrom. Plaintiff did not plead any facts which purport to show any wrongful acts on the part of Harris Bank.

Furthermore, count I alleges defendant failed to file the lawsuit against Harris Bank within the appropriate statute of limitations. Plaintiff retained defendant as her counsel on August 5, 1974. On May 1, 1975, defendant withdrew from his representation of plaintiff. In Harvey I, plaintiff’s action for breach of testamentary trust against Harris Bank was filed on November 12, 1976. In that case we determined the latest possible date from which to calculate the 5-year limitations period for such an action (Ill. Rev. Stat. 1975, ch. 83, par. 16) was July 2, 1971. (73 Ill. App. 3d 280, 288.) The latest possible filing date was July 2, 1976. It is apparent that plaintiff had over one year to pursue any potential actions against Harris Bank after defendant withdrew as her attorney. We find that count I was properly dismissed.

The trial court found count II to be “obscure, confusing and convoluted.” While those reasons alone may not be sufficient to dismiss a complaint (McCarthy v. Allstate Insurance Co. (1979), 76 Ill. App. 3d 320, 395 N.E.2d 139), we nevertheless find that the trial court did not abuse its discretion in dismissing this count. Count II alleges that the defendant negligently examined an abstract of title to real property owned by a corporation operated by plaintiff’s father and failed to report a tax foreclosure sale to her. Due to this negligence, plaintiff alleges, no action on her behalf was taken to recover damages against her stepmother, who also made false representations in this matter while acting as administrator of the estate. Plaintiff did not allege her interest in this land or in the corporation. Nor did she allege what, if any, her interest would have been had the business been part of the estate. The allegations contained in count II were conclusory in nature and, as a matter of law, insufficient to plead a cause of action.

Count III alleges defendant negligently advised plaintiff that her stepmother was a proper heir of the estate. The underlying premise for the allegations contained in this count is that, by her father’s will, her stepmother was not entitled to any distribution from the estate if she renounced the will. First, this is not the law of Illinois. Section 2 — 8 of the Probate Act (Ill. Rev. Stat. 1981, ch. 110½, par. 2 — 8) specifically allows a surviving spouse to renounce a will whether or not it provides for the benefit of that spouse. Secondly, even if such was not the law of this State, no provision that her stepmother was not entitied to any distribution from the estate if she renounced the "will can be found in the various copies of the will contained in the record. Clearly, no cause of action is stated in this count.

Count IV alleges a breach of contract for defendant’s failure to file a lawsuit , against Harris Bank. It is similar to count I in the conclusory allegations made. For the same reasons stated for count I, we find the trial court acted properly in ordering its dismissal.

Count V alleges a breach of contract by defendant for failing to file a malpractice action against plaintiff’s previous attorney, Connor. The allegations contain plaintiff’s conclusions to the effect that Con-nor fraudulently concealed wrongful acts which took place during the administration of her father’s estate. None of these fraudulent acts is alleged. Plaintiff then concludes that because of defendant’s breach of contract she could not recover her losses from Connor for his malpractice.

This count is insufficient because it does not plead sufficient facts to allege a breach of contract by defendant. There are no facts alleged which purport to show what acts constitute a breach. She does not allege that defendant withdrew without reasonable notice. Defendant’s withdrawal did not come on the eve of a trial or advent of the tolling of an action by statute of limitations. After defendant withdrew as plaintiff’s counsel in May 1975, she had at least until August 8, 1976 (five years after the signing of an estate settlement agreement between family members), to pursue an action against Connor for his alleged malpractice in representing her. Plaintiff did not file suit against Connor until June 1977 and was thus barred by the regular 5-year limitations period (Ill. Rev. Stat. 1977, ch. 83, par. 16). (Harvey II, 85 Ill. App. 3d 1061, 1063.) Accordingly, count V was properly dismissed.

In counts VI and VII plaintiff makes many allegations pertaining to the settlement agreement and the alleged misrepresentations that occurred in the making of that agreement. In this regard, count VI alleges defendant breached the retainer contract when he did not petition to set aside the settlement agreement. Most of the allegations in this count pertain to acts which allegedly occurred during the probate proceedings. Even these allegations are vague and conelusory in nature and it is not alleged how they relate to the alleged breach of contract by defendant. Count VII is similar to count VI, with the exception of the claim that defendant breached the contract by not filing lawsuits against her stepmother and several attorneys who took part in the probate proceedings.

In both of these counts plaintiff has pleaded only the legal conclusion that there was a breach of the retainer contract by defendant. Once again plaintiff has not pleaded facts to support her conclusions. The extent of her representation by defendant is not adequately stated and where it is attempted is done so in a conclusory manner. As all the other counts were, so too were counts VI and VII properly dismissed by the trial court.

Plaintiff also argues that her case should be reversed because defendant failed to specify the insufficiencies of the complaint in his motion to dismiss. (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 615(a) and 2 — 615(b) (formerly pars. 45(1) and 45(2)).) We note this argument was made concerning several of defendant’s earlier motions to dismiss. These were amended. After the last amended motion, plaintiff was granted leave to file a redraft of her fourth amended complaint “following the guidelines set out by the Court.” No transcript of the hearing on that motion is in the record. However, we must assume that plaintiff was advised of the insufficiencies at the hearing or otherwise because she did file the redraft. There is no objection in the record to defendant’s final motion to dismiss which alleges 27 grounds for dismissal. Transcripts of the hearings pertaining to that motion are in the record. Our review of these transcripts and the entire record on appeal reveals the exercise of sound discretion on the part of the trial court.

Plaintiff also contends that because she had requested a jury trial she was deprived of her constitutional right to due process by the trial court’s dismissal of her suit. We find no merit in this contention because there can be no infringement of the constitutional right to a jury trial where an insufficient or defective complaint is dismissed. Delis v. Sepsis (1972), 9 Ill. App. 3d 217, 292 N.E.2d 138; see also Deasey v. City of Chicago (1952), 412 Ill. 151,105 N.E.2d 727.

For the reasons stated, the order of the circuit court of Cook County dismissing the redraft of plaintiff’s fourth amended complaint is affirmed.

Affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    CHARLES L. DOYLE, Plaintiff, v. KATHLEEN C. RHODES, Defendant and Third-Party Plaintiff-Appellant.—(Rein, Schultz & Dahl, Third-Party Defendant-Appellee.)
    Second District
    No. 82—56
    Opinion filed September 7, 1982.
    Rehearing denied October 27, 1982.
    Harold L. Turner, of Turner and Shoemaker, of Rockford, for appellant.
    Robert K. Clark and Robert H. Clark, both of Rockford, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Whether a defendant who has been sued on the basis of negligence can recover contribution from the injured plaintiff’s employer who is charged with negligence as well as a wilful violation of a safety act forms the principal issue in this appeal.

The plaintiff, Charles L. Doyle, was employed as a highway flagman by the third-party defendant, Rein, Schultz & Dahl, a road contractor. The employee sued the defendant Kathleen-C. Rhodes to recover damages for personal injuries received when the Rhodes car struck him. Rhodes answered and filed a third-party complaint against the contractor which, as amended, sought contribution under section 2(a) of “An Act in relation to contribution among joint tortfeasors” (Ill. Rev. Stat. 1981, ch. 70, par. 302(a)), based on both the third-party defendant’s negligence and its alleged violation of the sections 1, 2, and 4 of “An Act to protect workers and the general public from injury or death during construction or repair of bridges and highways within the State of Illinois” (Ill. Rev. Stat. 1981, ch. 121, pars. 314.1, 314.2, 314.4). The trial court struck the third-party complaint as amended and further ordered that there was no just reason to delay enforcement or appeal under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)).

I

“An Act in relation to contribution among joint tortfeasors” provides, as material:

“Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.” Ill. Rev. Stat. 1981, ch. 70, par. 302(a).

Sections 5(a) and 11 of the Workers’ Compensation Act provide as applicable:

“No common law or statutory right to recover damages from the employer *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act.” Ill. Rev. Stat. 1981, ch. 48, par. 138.5(a).
“The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer.” Ill. Rev. Stat. 1981, ch. 48, par. 138.11.

The trial judge dismissed the third-party complaint on the basis that the contribution act did not permit the suit because the third-party plaintiff and the defendant were not both liable in tort to the plaintiff in view of the exclusivity provisions of the Workers’ Compensation Act (Ill. Rev. Stat. 1981, ch. 48, pars. 138.5(a), 138.11); and that, while the third-party plaintiff might be entitled to indemnity against the employer (Miller v. DeWitt (1967), 37 Ill. 2d 273, 292), no cause of action at common law was stated since, as a matter of law, the third-party plaintiff was actively negligent and the road contractor’s conduct was passive.

The third-party plaintiff contends that the Workers’ Compensation Act does not bar an action for contribution under the statute and that the immunity that one potential tortfeasor may assert in an original action by the plaintiff does not bar a third-party action for contribution against another party at fault in the same occurrence. She also contends that the court erred in finding her an active tortfeasor as a matter of law in view of her allegations charging wilful violation of the road construction injuries act.

The crux of the main dispute on the question of contribution under the statute is the meaning of the term “subject to liability in tort” as it appears in the contribution statute; and whether the legislative intent evinced in that act is broad enough to include an action by one tortfeasor against another partially at fault, even though because of a statutory immunity the employer is not liable to the employee except under the no-fault provisions of the Workers’ Compensation Act.

We have recently ruled that a tortfeasor may be “subject to liability in tort” and entitled to pursue a third-party action for contribution against a spouse of the claimant even though an immunity against suit has been provided by statute in any direct suit between the spouses. (Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 1081.) We have held that the same result follows when the immunity involves the relationship between a parent and a child. (Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 970-71.) In both instances we noted the legislative history of the contribution statute. This stated that the right to contribution is founded upon the doctrine of unjust enrichment, creates a separate right of restitution rather than a derivative right, “and thus is not barred by any common law or statutory immunity which would preclude the prime claimant from pursuing an action directly against the party from whom contribution is sought.” Wirth v. Highland Park (1981), 102 Ill. App. 3d 1074, 1080-82; Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 969.

The legislative history of the statute notes that the decision in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 13, in its holding that the prohibition against contribution between tortfeasors cannot be justified under either a social and theoretical basis, “leaves unanswered questions whose answers” must be provided by legislative enactment. (Legislative History 1 (Chi. Bar Ass’n 1981).) The history further notes “the provision does not limit the right [to contribution] to those held liable in negligence”; and gives the illustration, “for example, the immunity of an employer to any common law action sought to be brought by an employee will not prevent one held liable to that employee from seeking contribution from the employer.” Legislative History 1, 2 (Chi. Bar. Ass’n 1981).

Thus, the contribution statute talks in terms of relative culpability rather than relative liability. One who is culpable in contributing to an injury in the sense that his wrongful conduct in some part caused the injury may be liable for contribution under the broad language of the statute. See Clark, Comparative Contribution: The Legislative Enactment of the Skinner Doctrine, 14 J. Mar. L. Rev. 173,193 (1980).

We read Skinner (and the companion cases Stevens v. Silver Manufacturing Co. (1977), 70 Ill. 2d 41, and Robinson v. International Harvester Co. (1977), 70 Ill. 2d 47) as holding that the employer is subject to a suit for unlimited contribution by the original defendant, third-party plaintiff. The holding of Skinner, generally, is that contribution is to be allowed based on “the relative degree to which the defective product and the employer’s misuse of the product or its assumption of the risk contributed to cause plaintiff’s injuries.” (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 16.) We find it significant that the majority opinion did not refer to the policy of limited liability the Workers’ Compensation Act embodies although the employee and employer were under the Act, but noted only that as the Act would not preclude a third-party action for indemnification (citing Miller v. DeWitt (1967), 37 Ill. 2d 273) it would not bar a suit for contribution, also, that the dissenters read the majority opinion as putting no limits on contribution, but simply basing contribution on relative causation of the injuries. Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 17-18 (Ward, J., dissenting); 70 Ill. 2d 1, 20-22 (Underwood, J., dissenting); 70 Ill. 2d 1, 36-40 (Dooley, J., dissenting); see also 1978 U. Ill. L.F. 633, 649; 1978 S. Ill. U.L.J. 556, 568; 14 J. Mar. L. Rev. 173, 194-95 (1980).

It has been theorized that Skinner limits employer’s liability to third parties to cases where there is misuse of the product or assumption of risk by the employer, and the limitation was intended as a response to the dissenters’ objection that the policy of the Workers’ Compensation Act was undercut by allowing contribution. (Appel and Michael, 10 Loy. Chi. L.J. 169, 184-85, 189-92 (1979).) However, it appears more likely that the limitation was introduced to avoid allowing the strictly liable manufacturer to reduce his damages through contribution by raising the negligence of the employer when the manufacturer could not have reduced or avoided his liability in a direct suit by raising the issue of the users negligence. The limitation avoids the danger of introducing negligence concepts into the products liability-area and is thus consistent with earlier holdings in Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, and Liberty Mutual Insurance Co. v. Williams Machine & Tool Co. (1975), 62 Ill. 2d 77. In Liberty the court held that negligence concepts had no place in strict liability actions (62 Ill. 2d 77, 82-83), specifically that negligence was not relevant to indemnity actions based on strict liability, but that, misuse of the product by the party seeking indemnity would bar recovery (62 Ill. 2d 77, 84-85). It does not fairly appear from Skinner that the limitation was introduced out of deference to the policies of the Workers’ Compensation Act. If this were intended the majority could have simply held that contribution was limited to the payments under the Workers’ Compensation Act, and it did not do so.

The contribution statute was intended to codify, and not cut back on, Skinner. (See, e.g., Legislative History 1, 2 (Chi. Bar Ass’n 1981); 61 Chi. Bar Rec. 331 (1980); Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 1080-82; Larson v. Buschkamp (1982), 105 Ill. App. 3d 965, 967, 971; 14 J. Mar. L. Rev. 173, 194-95 (1980).) Thus, the principles of Skinner may be read into the statute.

To the extent that our opinions in Wirth and Larson suggest a balancing approach to statutory or common law immunities and the purpose of the contribution statute, we conclude that Skinner has impliedly balanced the equities in favor of the unlimited contribution.

II

The third-party’s amended complaint also sought contribution on the basis that the road contractor was absolutely liable for wilfully violating the road construction injuries act (Ill. Rev. Stat. 1979, ch. 121, par. 314.1 et seq.). The amended third-party complaint requested relief commensurate with the degree of fault attributable to the third-party defendant, the road contractor, in causing plaintiff’s injuries. The single-count complaint for contribution was, as previously noted, dismissed by the trial court. The amended complaint alleged that the employer wilfully violated the act in that it failed to provide the plaintiff with a safe place to perform his work, and did not provide due and adequate warning to motorists, including the plaintiff. Section 6 of the act provides that any contractor who knowingly or wilfully violates any provision of the act “shall be responsible for any injury to person or property occasioned by such violation, and a right of action shall accrue to any person injured for any damages sustained thereby.” (Ill. Rev. Stat. 1979, ch. 121, par. 314.6.) In rejecting the third-party plaintiff’s argument the trial court concluded that the plaintiff was guilty of active negligence as a matter of law, whereas the conduct of the contractor was passive and that contribution was barred on this basis.

The road construction injuries act is applied in a manner similar to the Structural Work Act, which “also makes wilful violations subject to liability, but fails to mention contributory negligence.” (Vegich v. McDougal Hartmann Co. (1981), 84 Ill. 2d 461, 466; 59 Ill. Bar. J. 842, 844 (1971).) Generally, under statutes enacted for purposes of safety, the word “wilfully” has been held to be synonymous with "knowingly,” so that “[t]he employer is liable not only when the dangerous conditions are known to him, but also when by the exercise of reasonable care the existence of such dangerous conditions could have been discovered.” (Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156, 166.) The construction statute before us has been construed in a Federal case, prior to either Skinner or the enactment of the contribution statute, to include “intentional acts constituting negligence.” (Parson v. Illinois Bell Telephone Co. (7th Cir. 1973), 481 F.2d 458, 463.) The Illinois Appellate Court has recognized that there might be no significant disparity in standards of proof between acts charged as common law negligence and the same acts charged as violations of the construction act, where, as here, the acts charged are substantially the same. Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 849-51.

The construction statute itself contains no provision that either permits or prevents third-party actions. The act (Ill. Rev. Stat. 1981, ch. 121, par. 314.6) has been said to indicate merely an intention to create a cause of action for persons damaged by a wilful or knowing violation of the statute. (Parson v. Illinois Bell Telephone Co. (7th Cir. 1973), 481 F.2d 458, 463.) Here, of course, the third-party plaintiff suffered no injuries as a result of any alleged violation of the statute. She seeks to recoup part of the amount she paid to the injured employee as contribution based upon the relative degree that her conduct and the employer’s conduct proximately caused the injury to the plaintiff, employee. This is the same in substance as her claim for contribution on the basis of the contribution statute and the interposing of the construction statute, in our view, raises no additional rights to contribution. Charges of violation of the statute and charges of common law negligence are interchangeable. (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App. 3d 825, 851.) In this view, the references to active-passive theories of negligence are not relevant.

The result which we have reached, in our view, is mandated by Skinner and by the legislative enactment of the doctrine of that case in the contribution statute. The judgment of the circuit court of Winnebago County is reversed. The cause is remanded with instructions to vacate the order dismissing the amended complaint and for further proceedings consistent with this opinion.

Reversed and remanded.

LINDBERG and NASH, JJ., concur.

       Where "balancing” is an issue, the competing policy interests have been called by a leading expert, “the most evenly-balanced controversy.” (Larson, Workmen’s Compensation: Third party actions over against employer, 65 Nw. U.L. Rev. 351 (1970).) In some States contribution has been completely denied against an employer under a worker’s compensation act on the theory that the action is derivative of the employee’s right (contrary to the Illinois holdings). (See 2A Larson, Workmen’s Compensation sec. 75.22 (1982).) In others, third-party liability has been reduced by 50%. (See Murray v. United States (D.C. Cir. 1968), 405 F.2d 1361, 1365-66; Weisgall, 1977 Wis. L. Rev. 1035, 1044-45 n. 43, but see 2A Larson, Workmens’ Compensation, sec. 76.37, at 620-21 (1982).) In still others liability is reduced by the amount of compensation paid. (2A Larson, Workmen’s Compensation sec. 75.22 at 507-21, sec. 76.36, at 15-16 (1982).) And in others contribution is limited to an amount which may be no more than compensation paid by the employer. 65 Nw. U.L. Rev. 351, 363 (1970); Lambertson v. Cincinnati Corp. (1977), 312 Minn. 114, 130, 257 N.W.2d 679, 689.


author: JUSTICE WILSON

text:
    GEORGE MARTIN, Plaintiff-Appellant, v. FEDERAL LIFE INSURANCE COMPANY et al., Defendants-Appellees.
    First District (5th Division)
    No. 80—3207
    Opinion filed September 24, 1982.
    Rehearing denied October 22, 1982.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, William J. Holloway, and Michael J. Leech, of counsel), for appellant.
    Peterson, Ross, Schloerb & Seidel, of Chicago (J. Robert Geiman, Robert A. Seidel, and Kevin G. Burke, of counsel), for appellees.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff, George Martin, filed an action for damages allegedly caused by his wrongful termination from employment with defendant Federal Life Insurance Company. His second amended complaint contains three counts sounding in estoppel and breach of contract, breach, of implied covenant of good faith and fair dealing, and tortious inducement of breach of contract. The trial court granted defendants’ motion to dismiss the second amended complaint and plaintiff appeals from the judgment. The allegations of plaintiff’s action follow.

In February 1954, plaintiff began working for Federal Insurance as personnel manager. In the next 22 years he was promoted to director of personnel and purchasing, assistant vice president, assistant secretary, chairman of the personnel committee, and second vice president and senior officer.

Plaintiff’s complaint further alleges that on or about July 1967, he received and intended to accept an attractive job offer with a competing insurance company. In response to that information, the president of Federal, now deceased, promised that if plaintiff refused the offer he would retain plaintiff until he retired from all business pursuits or no longer wished to be employed at Federal, so long as he continued to perform satisfactorily. Plaintiff, in reliance of this promise, refused the competitor’s offer and entered into an oral agreement for permanent employment with Federal.

In January 1976, the board of directors named plaintiff to the post of vice president of the company. A year later he was reelected by the full board. One month later, the executive committee, allegedly at the behest of defendant Joseph Austin, Federal’s president, discharged plaintiff without cause. Plaintiff was not accused of any wrongdoing, poor performance or incompetence.

As a result of this discharge plaintiff states that he was denied the job security for which he had bargained when he entered into the agreement with Federal. Further, plaintiff alleges that Federal had other jobs to which he could have been assigned. The discharge was a stigma and impaired plaintiff’s ability to find new opportunities. Defendant Austin’s role in the firing, plaintiff alleges, was an attempt to “solidify his own personal control” over Federal’s management and thereby assure his own job security “by eliminating experienced, capable managers who might detect errors in his decisions or bring such errors to the attention of the Board of Directors.” The result was damage to employee morale, loss of the valuable services of plaintiff, and the inhibition to the free flow of information to Federal’s board of directors. Plaintiff requests actual damages of $500,000 plus punitive damages for malicious conduct, and for interest and costs.

On November 20, 1980, the trial court granted defendants’ motion to strike and dismiss the second amended complaint. The court’s order stated that Illinois adopts the policy that “mere continuance as an employee is not sufficient consideration to support an alleged oral contract for permanent employment.” The court also found that plaintiff’s alternative theories failed to overcome the requirement of “separate, independent and substantial consideration.” With respect to the allegations against defendant Austin individually, the court held that there could be no cause of action for tortious inducement of breach of contract since no contract existed between Federal and plaintiff. Finally, the court held that the allegations of Austin’s interference with prospective economic advantage failed to state a cause of action. We reverse in part, affirm in part, and remand.

Opinion

COUNT I: BREACH OF CONTRACT AND ESTOPPEL

The primary issue before us is whether plaintiff’s allegations of an oral agreement state a cause of action. Defendants view the employment agreement as a terminable at-will relationship that was legally terminated and maintain that the alleged agreement for “permanent” employment lacked sufficient consideration and mutuality of obligation. Alternatively, they contend that if a binding contract for permanent employment was formed, its enforcement is barred by the Statute of Frauds.

Before addressing the questions of consideration and mutuality it may be helpful to review the terminable at will doctrine, which has caused some confusion over the remedies available to a discharged employee. Generally, an employment agreement is formed when one party promises to render services in exchange for the other party’s promise to pay wages. If the agreement does not specify a definite duration, it will last for as long as is mutually satisfactory, and either employer or employee may terminate the employment “at will,” without liability for breach of contract. (Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 667, 384 N.E.2d 91.) Thus, it has been held that employees at will may be discharged for any reason, or none at all. (Criscione v. Sears, Roebuck & Co. (1978), 66 Ill. App. 3d 664, 670, 384 N.E.2d 91, 95.) In the usual case the employee is not entitled to prior notice or a hearing on the merits of his discharge. (Kraftco Corp. v. Kolbus (1971), 1 Ill. App. 3d 635, 274 N.E.2d 153, 156-57.) Several limitations to the terminable at will concept have arisen, however. For example, an employee at will who is terminated, for exercising his statutory right to file a workmen’s compensation claim against his employer has a right of action for damages (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353), as does an employee who is discharged for informing law enforcement officials of the criminal activity of a co-employee (Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876). In these cases the employee’s right to be free of a retaliatory discharge is grounded in public policy rather than from the employment relationship itself. See also Manuel v. International Harvester Co. (N.D. Ill. 1980), 502 F. Supp. 45, 51.

The Requirement of Consideration

In determining whether a contract is terminable at will, some courts have stated that an agreement of permanent employment is not binding unless it is supported by “specially bargained for consideration,” that is, something in addition to plaintiff’s performance of his employment duties. As authority for this rule, defendants rely on certain language in Heuvelman v. Triplett Electrical Instrument Co. (1959), 23 Ill. App. 2d 231, 161 N.E.2d 875.) In affirming a summary judgment for defendant employer, the appellate court stated:

“Oral contracts for ‘permanent employment’ (meaning that as long as defendant was engaged in the prescribed work and as long as plaintiff was able to do his work satisfactorily, defendant would employ him) have been sustained, provided such contracts are supported by a consideration other than the obligation of services to be performed on the one hand and wages to be paid on the other.” (23 Ill. App. 2d 231, 235,161 N.E.2d 875, 877.)

In Heuvelman, the plaintiff alleged that he had stayed in defendant’s employ despite an offer from a competitor firm because defendant had orally promised him permanent employment. Of this alleged offer, the court remarked that it was “presented in such a vague, indefinite way that it is impossible to consider it an obligation.” The employer supposedly told plaintiff, “as they walked down State Street in Chicago, that their arrangement was a permanent one.” The court also stated, without elaboration, “It is not sufficient consideration for a contract of permanent employment to forego another employment opportunity. [Citations from other jurisdictions.]” 23 Ill. App. 2d 231, 236, 161 N.E.2d 875, 878.

This latter statement apparently has not been analyzed or reviewed in later Illinois cases and it also appears that the statement is, at least, overbroad. In fact, we believe it represents a misstatement of the consideration concept. The essential element of consideration is a bargained-for exchange of promises or performances, and may consist of a promise, and act, a forbearance, or the creation, modification, or destruction of a legal relation. (Restatement (Second) of Contracts sec. 71 (1981).) If the consideration requirement is met, there is no additional requirement of a gain or benefit to the promisor; a loss or detriment to the promisee; equivalence in the values exchanged; or “mutuality of obligation.” (Restatement (Second) of Contracts sec. 79 (1981).) Taking plaintiff’s well-pleaded allegations as true, as we must on a motion to dismiss (Pfendler v. Anshe Emet Day School (1980), 81 Ill. App. 3d 818, 821, 401 N.E.2d 1094), he agreed to relinquish a more lucrative offer with another employer in exchange for job security with his current one. Federal agreed to relinquish its right to terminate plaintiff “at will” in exchange for the retention of a valued employee who was about to join a competing firm. If the parties bargained for and exchanged such promises, the consideration element would appear to be satisfied, and to the extent the Heuvelman case holds otherwise, it seems to create a special rule for permanent employment contracts that does not apply to other types of contracts. We do not believe this to be a sound application of contract law. Moreover, if there is a particular policy reason for the requirement of separate, additional consideration for contracts of permanent employment, the Heuvelman court did not articulate it.

We have found instructive, however, an article entitled “Validity and Duration of Contract Purporting to be for Permanent Employment” (Annot., 60 A.L.R.3d 226 (1974)). There it is noted that “for reasons of lack of mutuality and indefiniteness, it is usually held that contracts for permanent or lifetime employment, when unsupported by consideration additional to services, are indefinite in nature and terminable at the will of either party.” (Annot., 60 A.L.R.3d 226, sec. 2[a], at 233 (1974).) Thus, if an employer expresses his hope or intention that the employment relationship will last “forever,” that representation, without more, will not generally transform a terminable at will contract into one for permanent employment.

This principle appears to be a recognition that in cases involving a vague or general expression of permanency the parties probably only intended to work together for as long a period as mutually satisfactory, with either party retaining the power to terminate the relationship at any time. Thus, “permanency” connotes steady, rather than temporary, employment, but not necessarily “lifetime” employment. To distinguish such terminable at will contracts from ones that are truly intended to be “for life,” the courts have evolved the requirement of “additional consideration,” apart from the primary exchange of services for wages. As several courts have observed, however, the general rule of additional consideration is a misconception. It is actually a rule of convenience to be applied if the parties’ intent regarding the permanent nature of employment is not clear. If the parties’ intention is clearly manifested there is no requirement for “additional” consideration. (Eilen v. Tappin’s, Inc. (1951), 16 N.J. Super. 53, 56-59, 83 A.2d 817, 818-19.) Other cases have approved the rule that a lifetime employment contract will be given effect, according to its terms, if the parties’ intention to make such agreement is clear, “even though the only consideration for it, so far as the employer is concerned, is the promise of the employee to render the service called for by the contract.” Eggers v. Armour & Co. (8th Cir. 1942), 129 F.2d 729, 731, cited in Molitor v. Chicago Title & Trust Co. (1945), 325 Ill. App. 124, 135, 59 N.E.2d 695, 699.

Viewed as a rebuttable presumption in favor of a terminable at will employment relationship, the additional consideration concept may be useful in certain cases. For example, an employee’s bare allegation that he was hired for life, without any additional circumstances to indicate that the parties intended such an arrangement, would be insufficient to overcome the presumption. But where, as in the pending case, the employee’s allegations specify the circumstances under which he entered into the new or modified contract with' his employer for permanent employment, his complaint should at least withstand a motion to dismiss. (See McNulty v. Borden, Inc. (E.D. Pa. 1979), 474 F. Supp. 1111.) Notwithstanding the Heuvelman dictum that it is insufficient consideration to forego other employment opportunities, we believe that when the employee gives up another offer in exchange for and in reliance upon the employer’s promise of permanent employment, that contract, if proved, is enforceable. Other jurisdictions approve this result. E.g., Fletcher v. Agar Manufacturing Corp. (W.D. Mo. 1942), 45 F. Supp. 650, 651-52; Pugh v. See’s Candies, Inc. (1981), 116 Cal. App. 3d 311, 171 Cal. Rptr. 917.

The Requirement of Mutuality

We also reject defendants’ contention that the parties’ agreement is unenforceable under the mutuality of obligation doctrine. Although defendants do not clearly explain their objection based on this principle, apparently they object to plaintiff’s ability to terminate the permanent employment relationship at his discretion without an identical corresponding right on defendants’ side. As our supreme court has noted, however, while consideration is an essential element for the creation of an enforceable contract, mutuality is not. (Armstrong Paint & Varnish Works v. Continental Can Co. (1921), 301 Ill. 102, 103, 133 N.E. 711.) “Where there is no other consideration for a contract the mutual promises of the parties constitute the consideration, and these promises must be binding on both parties ***.” (301 Ill. 102, 108.) Conversely, if a promise is merely illusory, that is, a party does not in fact bind himself, his promise will not support a contract. As one court perceived, “The doctrine of mutuality of obligation appears therefore to be merely one aspect of the rule that mutual promises constitute considerations for each other.” Ryan v. Upchurch (S.D. Ind. 1979), 474 F. Supp. 211, 218. See also Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 129, 421 N.E.2d 876, 878 (“Recent analysis has pointed out the shortcomings of the mutuality theory”).

In the pending case, plaintiff relinquished his right to accept the other job offer in exchange for defendants’ relinquishment of the right to terminate plaintiff at will. Since the parties’ promises need not be of the same type to constitute consideration (see Aldrich v. Aldrich (1931), 260 Ill. App. 333, 352-53), we conclude that “mutuality” is not lacking or necessary. (See Restatement (Second) of Contracts sec. 79 (1981).) Plaintiff may face difficult problems of proof, but we hold that the allegations of count I state an action for breach of express oral contract.

In light of our finding that consideration has been sufficiently alleged, we need not discuss plaintiff’s promissory estoppel theory, which may be used as a substitute for consideration in certain circumstances. See Restatement (Second) of Contracts sec. 90 (1981); Wickstrom v. Vern E. Alden Co. (1968), 99 Ill. App. 2d 254, 240 N.E.2d 401.

The Requirement of a Writing

Defendants alternatively argue that even if the contract were properly formed, its enforcement is barred by the Statute of Frauds. (Ill. Rev. Stat. 1979, ch. 59, par. 1.) The statute prohibits oral contracts not to be performed within the space of one year from the making thereof. The test is simply whether the contract by its terms is capable of full performance within a year, not whether such occurrence is likely. (Stein v. Malden Mills, Inc. (1972), 9 Ill. App. 3d 266, 292 N.E.2d 52.) In general, lifetime employment contracts have not been held barred by the Statute of Frauds. (See Annot., 60 A.L.R. 226, sec. 16 (1974).) Defendants rely, however, on Sinclair v. Sullivan Chevrolet Co. (1964), 45 Ill. App. 2d 10, 195 N.E.2d 250, aff’d (1964), 31 Ill. 2d 507, 202 N.E.2d 516. In Sinclair, a contract was entered into on May 30, 1960, and was to remain in effect “for at least one year,” starting June 6, 1960. Hence, the contract literally could not be performed within one year from the date of its formation on May 30, 1960. The court rejected the plaintiff’s argument that he could die within a year, thereby ending the contract within that time. In holding the contract unenforceable under the Statute of Frauds, the court distinguished between performance of the contract and mere termination because of death, stating that “[i]n every employment contract the contract is subject to termination at the death of the employed party, but this does not mean the contract has been performed in full.” The court further stated, however, that “[wjhere the contract extends to a point in time, be it death or some other circumstance, at which time the full service contemplated will have been rendered, and that point in time could occur within one year, the Statute of Frauds will not be a bar to enforcement of the action.” Sinclair v. Sullivan Chevrolet Co. (1964), 45 Ill. App. 2d 10, 15, 195 N.E.2d 250, 252.

In the pending case, plaintiff’s retirement from business pursuits or his voluntary departure from Federal are contingencies that could have occurred within a year, in which case the contract would have been fully performed. We therefore believe that the Statute of Frauds is not a bar to enforcement.

COUNT II: BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

The operative allegations of this count are as follows:

“20. At the time of Martin’s discharge, there were positions at Federal which Martin was qualified to fill, and which were not offered to him.
21. Martin’s discharge, without notice, irreparably damaged Martin’s reputation by its suggestion of poor performance, incompetence or wrongdoing on Martin’s part, and so stigmatized him that it disabled him from finding substitute employment at equivalent compensation, responsibilities, and job satisfaction.
22. Martin was not in fact guilty of poor performance, incompetence, or serious wrongdoing and was never confronted by Federal with any accusation to that effect.
23. No cost or burden would have been imposed on Federal had it retained Martin in his position for a period of months to enable him to seek other employment, and doing so would have greatly mitigated the harm to Martin’s ability to find substitute employment. Federal refused to continue Martin in his present position or some other position while he sought substitute employment.
24. The aforesaid conduct thereby deprived Martin of the essential benefit conferred upon him by the agreement, constituted unfair dealing, and was done in bad faith with the knowledge that it would greatly injure Martin, or in reckless disregard of the likelihood that such damage would result.”

Plaintiff's theory is that all contracting parties owe to each other a duty of good faith and fair dealing that is tortiously violated whenever one party takes an action designed to deprive the other of the essential benefits of the agreement. Thus, count II appears to be an attempt to state a tort cause of action premised on a bad faith breach of contract.

Various authorities have discussed the . general principle that contracting parties have a good faith and fair dealing covenant implicit in their agreements; however, according to our understanding of the principle, it is essentially used as a construction aid in determining the parties’ intent. Hence, in Martindell v. Lake Shore National Bank (1958), 15 Ill. 2d 272, 286, 154 N.E.2d 683, the supreme court stated, “Every contract implies good faith and fair dealing between the parties to it, and where an instrument is susceptible of two conflicting constructions, one which imputes bad faith to one of the parties and the other does not, the latter construction should be adopted. (12 I.L.P., Contracts, sec. 217.)” Accord, Pierce v. MacNeal Memorial Hospital Asso ciation (1977), 46 Ill. App. 3d 42, 51, 360 N.E.2d 551; cf. Pugh v. See’s Candies, Inc. (1981), 116 Cal. App. 3d 311, 171 Cal. Rptr. 917 (California law permits a terminable at will employee a cause of action based on his longevity of service or on the employer’s expressed policy to give employees termination hearings).

While we agree that the same conduct may give rise to both tort and contract theories of recovery in some cases, we do not believe that Illinois law recognizes a tort remedy based on an employer’s “bad faith” breach of an implied contract covenant of fair dealing. As previously discussed, in limited circumstances a terminable at will employee has an action for wrongful discharge despite the general maxim that such an employee may be discharged for any or no reason. (Kelsay v. Motorola, Inc.; Palmateer v. International Harvester Co.) In such cases there is no actionable breach of employment contract, but the law nonetheless implies a duty in tort based on public policy. In contrast, employees, such as plaintiff, who have expressly bargained for permanent employment, have a right of action.based on the contract itself, and do not need tort principles. In extreme cases, an employer’s breach of the contract may also give rise to an independent tort, such as intentional infliction of mental distress, but we believe plaintiff’s allegations in count II fall far short of stating an independent tort action. Most of the allegations are conclusory; for example, the charge that plaintiff was stigmatized by the discharge. Moreover, the statement that Federal should have given plaintiff another available position does not seem a cognizable breach of tort duty or contract obligation.

Care must be taken to prevent the transmutation of every breach of contract into an independent tort action through the bootstrapping of the general contract principle of good faith and fair dealing. We conclude that existing principles of tort law are adequate without our creating a new action based on a vague notion of fair dealing. A general “bad faith” tort based on breach of contract would undoubtedly be difficult to apply in most cases and superfluous in cases such as the present one, which primarily sounds in contract. (See Album Graphics, Inc. v. Beatrice Foods Co. (1980), 87 Ill. App. 3d 338, 408 N.E.2d 1041 (court refused to recognize a cause of action in negligence to recover purely contractual remedies for breach of contract). We hold that the trial court properly dismissed count II for failure to state a cause of action.

COUNT III: DEFENDANT AUSTIN’S TORTIOUS INTERFERENCE WITH THE CONTRACT BETWEEN PLAINTIFF AND FEDERAL

The elements of a cause of action for tortious interference with contractual relations are: (1) the existence of a valid and enforceable contract; (2) defendant’s knowledge of the existing contract; (3) intentional and malicious inducement of the breach; (4) the subsequent breach by the third person due to the defendant’s wrongful conduct, and resulting damages incurred by the plaintiff. Pfendler v. Anshe Emet Day School (1980), 81 Ill. App. 3d 818, 401 N.E.2d 1094.

The operative allegations of count III are that Austin knew of the employment contract between plaintiff and the corporation, orally assuring plaintiff his employment was not in jeopardy and, further, that:

“26. On or about March 18, 1977, Austin, without regard to the consequences to Martin but aware of what such consequences would be, without prior notice or disclosure to the full board of directors which had only recently elected Martin a Vice President, caused Federal’s Executive Committee to meet and, on information and belief, proposed, insisted on, and voted for the discharge of Martin as part of a program to solidify his own personal control over the management of Federal and assuring his own job security by eliminating experienced and capable managers who might detect errors in his decisions or bring such errors to the attention of the Board of Directors.
27. The discharge of Martin was against the best interests of Federal because:
(a) it damaged employee morale by violating long-standing company policies and obligations to employees;
(b) it deprived Federal of the valuable services of Martin; and
(c) it restricted the ability of the Board of Directors to manage the corporation by inhibiting the free flow of information concerning Federal from management employees to the Board.
28. But for Austin’s proposal of and insistence upon Martin’s discharge, Martin would not have been discharged from Federal.”

We do not find these allegations sufficient to plead an action for tortious inducement of breach of contract. While pleadings are to be liberally construed (Ill. Rev. Stat. 1981, ch. 110, par. 33(3)), the legal sufficiency of a complaint requires more than mere conclusions. Plaintiff’s averment that Austin’s actions were motivated by a personal purpose or intent, without a factual statement showing such purpose or intent is a conclusion. (See Bergfeld v. Stork (1972), 7 Ill. App. 3d 486, 491, 288 N.E.2d 15.) What is primarily missing from this count is the third element of the tort, Austin’s “intentional or malicious inducement” of the breach by Federal. In Worrick v. Flora (1971), 133 Ill. App. 2d 755, 272 N.E.2d 708, the court affirmed the dismissal of an action for tortious interference with contractual rights, holding that a corporate officer has the right to exercise his duties without liability even though the employment relations of others may be affected. Plaintiff, a terminable at will employee, had been discharged according to his complaint, “intentionally and without just cause.” The court reviewed the meaning of “malice” as used in the tort and concluded that “the theory of liability depends on considerations of privilege or justification” (Worrick v. Flora (1971), 133 Ill. App. 2d 755, 758), since some conduct which may harm a competitor may nevertheless be lawful or “privileged.” (See Doremus v. Hennessy (1898), 176 Ill. 608, 52 N.E. 924.) In holding that the complaint failed to state a cause of action, the Worrick court stated that the allegations were entirely lacking in any facts from which it could be inferred that defendant was acting other than in accord with his usual and customary duties.

In Worrick, as in the pending case, plaintiff was not accused of misconduct or incompetence. Assuming his alleged oral contract with Federal for permanent employment is valid, Austin’s interference with it must have been intentional and unprivileged to be actionable. The allegations of count III characterize Austin as the moving force behind his discharge, but lack a sufficient statement of facts to support an inference of improper, unprivileged behavior with respect to corporate policies or procedures. Plaintiff refers to a March 18, 1977, meeting that Austin allegedly caused “without prior notice” to the full board of directors, wherein he insisted and voted for plaintiff’s discharge as part of a program to solidify his own job security by eliminating experienced and capable managers. ***.” Attached to defendant’s motion to dismiss, however, is an affidavit of Federal’s acting secretary at the time of the meeting, James J. Breen. The affidavit quotes corporate bylaws which authorize the executive committee to manage the corporation during the interim between the meetings of the full board. Attached to the affidavit are the minutes of the March 18 meeting, attended by the executive committee, Austin, Breen and A.G. Williamson. According to the minutes, the committee “discussed elimination of two senior officer positions; it was determined that it was in the best interests of the company to proceed as soon as possible with the implementation of such plan. Alternatives were discussed ***.”

While we do not rely on this document for its evidentiary value on this motion to dismiss, we note that plaintiff’s complaint lacks any indication that Austin improperly “caused” the executive meeting or violated any bylaws or corporate policies. He does allege the violation of “long-standing” policies, but does not supply any factual basis of support beyond the conclusory allegation. We conclude that the trial court properly dismissed count III of the complaint against defendant Austin as lacking sufficient factual allegations.

For the reasons discussed herein, we reverse the trial court’s dismissal of count I of the complaint and hold that for purposes of the motion to dismiss, plaintiff states a cause of action for the breach of an oral contract of permanent employment between himself and Federal. We affirm the dismissal of count II for failure to state a cause of action on the theory of breach of the covenant of good faith and fair dealing and alternatively for failing to allege sufficient facts to support an action in tort. Finally, we affirm the dismissal of count III against defendant Austin as being legally insufficient to state the elements of tortious inducement of breach of contract.

Reversed in part, affirmed in part, and remanded for further proceedings.

LORENZ and MEJDA, JJ., concur.

       Not every relinquishment of a job or job offer, however, will be sufficient consideration to support an alleged agreement of permanent employment. Courts have realized that a person necessarily must give up or terminate a prior job in order to accept a new one and, absent other circumstances, the relinquishment of the prior job does not render the new employment offer anything more than a hiring for indefinite duration. Annot., 60 A.L.R. 226, sec. 2[a], at 234-35; sec. 7[a] and cases cited therein (1974).

       There is a line of Illinois insurance cases in which a common law tort action has been approved as a vehicle for awarding compensatory and even punitive damages to insureds when their insurer refuses to settle claims in good faith. The seminal case, Ledingham v. Blue Cross Plan (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, rev’d on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75, extensively discusses and then follows California law, concluding that the parties to a life and health insurance relationship have a duty to deal fairly with each other in good faith, the breach of this duty constituting both a tort and a breach of contract. The court went on to discuss two possible theories concerning such a tort, one being that if the conduct was sufficiently outrageous, it could result in liability for intentional infliction of emotional harm. Under a second theory, less than “outrageous conduct” but still a “bad faith” refusal to make payments under the policy could constitute a “tortious interference with a protected property interest of its insured for which damages may be recovered.” (29 Ill. App. 3d 339, 351, 330 N.E.2d 540, 549.) Later cases have refused to follow Ledingham’s rationale because of the Insurance Code’s express provision, thought to be preemptive, which allows for recovery of certain costs and attorney fees if the insurer’s conduct is “vexatious” and “unreasonable.” Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373; Tobolt v. Allstate Insurance Co. (1979), 75 Ill. App. 3d 57, 393 N.E.2d 1171; Siegal v. Health Care Service Corp. (1980), 81 Ill. App. 3d 784, 401 N.E.2d 1037. Contra, Lynch v. Mid-America Fire & Marine Insurance Co. (1981), 94 Ill. App. 3d 21, 418 N.E.2d 421.
      We express no opinion as to the soundness of the Ledingham rationale but decline to expand the tort theories advanced there into the employment context by analogy.


author: PRESIDING JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PETER J. LIPA, Defendant-Appellant.
    First District (4th Division)
    No. 81—361
    Opinion filed September 30, 1982.
    Rehearing denied October 18, 1982.
    Leo T. McGonigal and Charles Locker, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David L. King, and Randall E. Roberts, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Defendant, Peter J. Lipa, along with four other men, was charged with armed robbery of an Illinois tollway truck. Defendant pleaded not guilty and, pursuant to a motion, his case was severed from the others. Following a bench trial, defendant was convicted of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2) and sentenced to the Illinois State Penitentiary for not less than 7 years nor more than 14 years. He appeals from that conviction.

Defendant raises the following issues on review: (1) whether the trial judge erred in failing to recuse himself under Illinois Supreme Court Rule 67(c); (2) whether there was sufficient evidence to prove defendant guilty of armed robbery; and (3) whether defendant’s sentence of 7 to 14 years was excessive.

We affirm.

The four other men involved in the crime were Richard Jeskewitz, Richard Fitzgerald, Ozeal Lee and Jonathan Lipa, defendant’s brother (since deceased). Fitzgerald, Jeskewitz and Lee pleaded guilty to the lesser charge of robbery. Fitzgerald and Jeskewitz testified on behalf of the State; Lee did not testify at defendant’s trial.

The following testimony was adduced at trial. At about 1 p.m. on April 22, 1977, an Illinois Tollway Authority truck was traveling west on the Tri-State tollway near the Lee Street exit. The driver of the truck, Darko Kucan, testified that he saw a light-colored car with flashing headlights in his rear view mirror. He thought the car to be an unmarked police car so he pulled over and stopped. The car stopped about 25 feet behind his truck. Kucan got out of the truck, leaving the keys in the ignition and the engine running, and walked back to the car. There were two men in the car; the driver was black and the passenger was white. The driver motioned Kucan to go the passenger’s side. He went to the passenger’s side of the car and got into the back seat. Kucan asked, “What’s the matter?” He then reached into his back pocket for his wallet and when he looked up there was a shotgun pointed at him. Kucan was then pushed down on the floor, covered with a blanket and told to stay down. The men drove off with him. A ski mask was pulled over Kucan’s head and his hands were tied behind his back before he was removed from the car. He was subsequently put into the back of the tollway truck where he was discovered by the Chicago police the following morning. Kucan was questioned by the Chicago police and the Illinois State police at two or more locations for several hours after he was discovered. He gave several statements to the police.

Kucan testified that when initially questioned by Chicago police, he did not tell them that the men in the car had had a shotgun. He claims to have been afraid to tell the police about the gun initially but that it was the only detail omitted from his initial statements to police.

Richard Fitzgerald testified for the prosecution that several months prior to the robbery he and defendant discussed how easy it would be to rob the tollway truck. Fitzgerald and defendant observed the tollway truck picking up receipts on several occasions. Subsequently, defendant located a car that resembled an unmarked State police car. Another accomplice, Richard Jeskewitz, stole the car and modified it. Flashing lights, a spotlight and a public address system were installed. Jeskewitz also rented a truck and a warehouse to be used in the robbery.

On the day of the robbery, Ozeal Lee drove the phony police car with defendant as a passenger. Fitzgerald, Jeskewitz and Jonathan Lipa rode in the rented truck. After defendant and Lee pulled over the tollway truck and Kucan got out, Jeskewitz was able to drive the tollway truck to the rented warehouse.

The rented truck was used to transport the cash from the tollway truck to defendant’s family’s farm in Wisconsin. Prior to defendant’s trial, metal cannisters of the type used by the tollway authority to transport money were found in a pond near the Wisconsin farm. The exact amount of money stolen was not ascertained. It appears that Ozeal Lee and Richard Jeskewitz each received $5,000. It is unclear how much the other participants received.

Prior to trial, there was discussion among the trial judge, defendant’s attorney and the prosecutor regarding recusal of the trial judge. The trial judge had been an assistant State’s Attorney in charge of the felony trial division at the time of defendant’s indictment. In his prior capacity as an assistant State’s Attorney, the judge had approved a subpoena for telephone records in connection with the grand jury investigation surrounding the robbery for which defendant is charged. The judge did not actively participate in the case in any other way when he was an assistant State’s Attorney. The judge stated that he did not remember approving the subpoena. The judge and the prosecutor, as well as defendant and his attorney, agreed that there was no conflict. Following that discussion, the judge decided that he would not recuse himself.

Defendant’s first contention is that the trial judge erred by failing to recuse himself. Defendant argues that under the circumstances in this case recusal is mandatory under Illinois Supreme Court Rule 67(c) (73 Ill. 2d R. 67(c)), which provides as follows:

“A judge shall not participate in any case in which he has previously acted as counsel. He cannot rid himself of this responsibility by consent of counsel or the parties to the case.”

Defendant implies that through association with the case in a former supervisory capacity the trial judge may have formed opinions about the case which would necessarily influence his ability to act impartially. Defendant asks us to adopt the rule of several New York cases which held that recusal is mandatory if the trial judge was in any way associated with the case in another capacity. We reject this argument.

We see no reason to adopt New York case law since People v. Burnett (1979), 73 Ill. App. 3d 750, 392 N.E.2d 235, is dispositive of the issue under the facts of this case. In Burnett, the trial judge informed the parties that he had served in a supervisory capacity as an assistant State’s Attorney when a bond forfeiture proceeding involving the defendant was held. The judge stated that he “ ‘had no knowledge whatsoever of the case and had never seen the case or handled the case or acted as counsel.’ ” (73 Ill. App. 3d 750, 754.) Similarly, in this case, the trial judge stated that he “had no knowledge of this case whatsoever ***.” The judge in this case, as in Burnett, made certain routine approvals in his supervisory capacity. Neither in Burnett nor in this case is there any evidence that the judge had personal knowledge of nor was he involved in the case. This court said in Burnett:

“[T]he words of Rule 67(c) referring to a judge who ‘acted as counsel’ should be given their plain meaning, and should apply to a judge who was actually involved in the prosecution or defense of an accused’s case.” 73 Ill. App. 3d 750, 754.

Furthermore, this court recognized that the trial judge’s former supervisory capacity as an assistant State’s Attorney does not amount to his having “acted as counsel.” 73 Ill. App. 3d 750, 754-55.

We think the Burnett case is dispositive of the issue raised by defendant here. Therefore, we hold that the trial judge did not err in failing to recuse himself.

Defendant next contends that there was insufficient evidence to prove him guilty of armed robbery beyond a reasonable doubt. Defendant argues that since the victim, Darko Kucan, was the only person to testify that defendant had a gun at the time of the robbery the elements of armed robbery are not proved beyond a reasonable doubt. Defendant stresses the fact that Kucan failed to mention the gun to the police in his first three statements. Therefore, his statement regarding the gun is not credible and, standing alone, cannot support a finding of armed robbery. We disagree.

Kucan told the police that a shotgun was pointed at his face. He made that statement the day after the robbery while he was being questioned. At trial, he again stated that there was a shotgun.

We do not believe that Kucan’s failure to mention the shotgun in his first statement to the police is determinative. There was other evidence from which the trial judge could reasonably find that a shotgun had been used. Kucan testified in open court that a shotgun was pointed at him during the robbery. Additionally, Richard Jeskewitz, one of defendant’s accomplices, testified that on the morning of the robbery he gave defendant a sawed-off shotgun. In a bench trial, the judge is in a position to decide the credibility of witnesses and the weight to be given their testimony. People v. Mitchell (1978), 60 Ill. App. 3d 598, 605, 376 N.E.2d 1036, 1041.

If it is reasonable for the trial judge, acting as trier of fact, to believe the witnesses’ testimony, then the reviewing court will not substitute its judgment for that of the trial court. (See People v. Mitchell (1978), 60 Ill. App. 3d 598, 605.) We hold that there was sufficient evidence to support a finding of guilty of armed robbery.

Defendant’s final contention is that the trial judge’s sentence of 7 to 14 years was excessive and unjustified. Defendant argues that since the other accomplices, who pleaded guilty, received lighter sentences, he should have also. He asserts that he was penalized for exercising his right to remain silent. We reject this argument.

The imposition of a sentence is a matter of judicial discretion, and absent an abuse of discretion, the sentence of the trial court will not be altered by a reviewing court. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883.) It is an incorrect assumption that a reviewing court can reduce a sentence absent a finding of abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 154.) Defendant fails to show how the trial court abused its discretion. Instead, we are asked to reduce defendant’s sentence because Illinois Supreme Court Rule 615(b) (73 Ill. 2d R. 615(b)) permits such reduction and because defendant’s accomplices received lighter sentences.

The trial court is in a better position than is a reviewing court to determine the appropriate sentence. The trial court has. the opportunity to consider many factors such as demeanor and character, while the reviewing court has only the record of the proceedings on which to base its decision. In this case, the record discloses that the trial judge gave careful thought to many factors and, in his words, sought to “make the punishment fit the crime and the individual,” within the statutory guidelines.

While there is some disparity between the sentences received by his accomplices and that received by defendant, we cannot say that there was abuse of discretion. It is not our function, as the reviewing court, to substitute our judgment for that of the trial court merely because we would have imposed a different sentence had the function been delegated to us. People v. Perruquet (1977), 68 Ill. 2d 149, 156, 368 N.E.2d 882, 885.

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

Affirmed.

LINN and JIGANTI, JJ., concur.


author: JUSTICE McGILLICUDDY

text:
      In re MARRIAGE OF DIANE KONDOS, a/k/a Diane Kasik, Petitioner-Appellee and Cross-Appellant, and PHIL K. KASIK, Respondent-Appellant and Cross-Appellee.
    First District (3rd Division)
    Nos. 81—1819, 81—2097 cons.
    Opinion filed September 29, 1982.
    Shea, Rogal & Associates, Ltd., of Berwyn, and DiNatale & Montemurro, of Oak Park (Gerald W. Shea and Anthony M. Montemurro, of counsel), for appellant.
    Ben Goldwater, of Chicago (Michael W. Rathsack, of counsel), for appellee.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

Both Diane Kondos, formerly known as Diane Kasik, and Phil K. Kasik appeal from an order of the circuit court of Cook County dated July 22, 1981, which awarded them joint custody of their minor son Philip. The court also ordered that Diane was to have possession-of Philip from the date of the order until August 1, 1982, with possession to alternate between the parents thereafter on a yearly basis. This court has stayed said order pending this appeal.

On April 19, 1974, Diane filed her complaint for separate maintenance or, in the alternative, for divorce. At that time she was approximately SVz months pregnant with Philip. Philip was born on September 8, 1974. The custody and support of Philip has been the subject of continuous litigation between the parties.

On July 28, 1977, the trial court entered a judgment for divorce in which it found that both Diane and Phil were fit and proper persons to have custody of Philip. Pursuant to the terms of a settlement agreement, the court awarded the parties joint custody of Philip, with physical possession to Diane.

On December 18, 1978, Phil filed a petition in the trial court to modify the custody provision in the judgment for divorce. He asserted that Diane moved with Philip to Oregon without his or the court’s permission and that certain conduct of Diane was detrimental to the mental and physical well-being of Philip. On that day the trial court entered an ex parte order awarding Phil temporary custody of Philip. On January 10, 1979, the court entered an order directing Diane to return Philip to this State and to the custody of Phil. On February 16, 1979, Phil went to Oregon and brought Philip back to Illinois.

On March 28, 1979, the trial court entered an order awarding Diane temporary custody of Philip; allowing Diane to return to Oregon with Philip; ordering Diane to return Philip to Illinois on June 16; and directing a social service investigation of the parties.

Subsequently, the trial court conducted a hearing in which the court heard the testimony of Diane, Nicholas Kondos (Diane’s husband), Phil, Phil’s parents and two case workers from social service agencies. On July 18, 1979, the trial court ordered that the joint-custody provision of the judgment for divorce be maintained and that Phil be awarded possession of Philip. The court continued the matter for reconsideration and review to August 20, 1980. The court further held that this order was final and that there was no just reason to delay its enforcement or appeal. There was no appeal from this order.

On September 22, 1980, the trial court continued the matter of custody of Philip to June 16, 1981, for reconsideration and full hearing. The court further ordered that the social service reports concerning the custodial arrangements of the parties be updated for said hearing.

On April 20, 1981, Diane filed a petition for a psychiatric evaluation of Phil and Philip in order to assist the court in its determination of the custodial issue. On May 19, 1981, the trial court ordered Diane, Phil and Philip to undergo a psychiatric evaluation by Dr. Misha Zaks.

On June 16, 1981, the trial court conducted a hearing in which the court heard the testimony of Diane, Phil, Phil’s father, and Dr. Misha Zaks, the clinical psychologist. The court also interviewed Philip in chambers.

Dr. Zaks testified extensively concerning his testing and interviews of the parties. In summary, Dr. Zaks found that although both Diane and Phil have some psychological problems, both parties love their son and are good parents. Dr. Zaks reached no conclusion concerning what custodial arrangement would be in the best interest of Philip. He did state that more contact with Diane would benefit Philip.

The trial court found that Philip needed the love and companionship of both of his parents. On July 22, 1981, the court awarded the joint custody of Philip to Diane and Phil in accordance with the judgment for divorce. The trial court further ordered that Diane and Phil be awarded alternate physical possession of Philip on a yearly basis. Both parties appeal from this order.

The first issue we must address is Phil’s argument that the trial court erred in modifying the final custody judgment of July 18, 1979, without making the findings required by section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(b)). That section provided that:

“The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
(1) the custodian agrees to the modification;
(2) the child has been integrated into the family of the petitioner with consent of the custodian; or
(3) the child’s present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.”

Only after one of the prerequisites set forth in subsections (b)(1) through (3) has been established does the court proceed to consider the best interest of the child under section 602(a) of the Act. Ill. Rev. Stat. 1979, ch. 40, par. 602(a); In re Marriage of Gargus (1981), 97 Ill. App. 3d 598, 423 N.E.2d 193.

Diane contends that section 610(b) is inapplicable since the July 18, 1979, order was only a temporary ruling on custody. She points out that the language of the order together with the comments of the court reveal the judge's intention to make said order temporary.

An order is temporary or final according to its substance, not its form. (In re Marriage of Herron (1979), 74 Ill. App. 3d 748, 393 N.E.2d 1153.) As this court noted in Carroll v. Carroll (1978), 64 Ill. App. 3d 925, 382 N.E.2d 7:

“[I]n an effort to achieve a situation which is beneficial to the children, a trial court cannot avoid the possible consequences of an order by making all orders temporary ‘experiments’ to see which set of circumstances will result in the best living conditions for the children. (See Pratt v. Pratt (1975), 29 Ill. App. 3d 214, 330 N.E.2d 244.) As noted in King v. Vancil (1975), 34 Ill. App. 3d 831, 834-35, 341 N.E.2d 65, 68:
‘[A child custody award] is probably one of the most difficult and important tasks a trial judge undertakes. However, the children and the parents are certainly entitled to a certain degree of finality and conclusiveness when an order of custody is entered. Custody of children is the most important aspect of divorce, and this matter should not be subject to frequent modifications where the order was not conditional with respect to such changes.’ ”
64 Ill. App. 3d 925, 929-30, 382 N.E.2d 7, 10-11.

Although the trial court did characterize its order as temporary, we believe it is clear that the court made a final custody decision on July 18, 1979, following a full evidentiary hearing on that issue. The finality of the order is further evidenced by the fact that almost two years elapsed before the trial court reconsidered its award of custody.

Since the July 18, 1979, order was a final custody judgment, the trial court could not modify it without making explicit findings that either subsection (1) (2) or (3) of section 610(b) was applicable. (In re Custody of Harne (1979), 77 Ill. 2d 414, 396 N.E.2d 499.) No such findings were made in the instant case. Thus, the order of July 22, 1981, which modified the final custody judgment of July 18, 1979, is hereby reversed.

In accordance with the judgment for divorce entered on July 28, 1977, the joint custody of Philip is to remain in Diane and Phil; and pursuant to the terms of the July 18, 1979, order, Philip shall remain in the possession of Phil.

Phil also argues that the trial court’s order of May 19, 1981, was erroneous. In that order the trial court ordered Diane, Phil and Philip to undergo a psychiatric evaluation by Dr. Zaks and ordered Phil to pay a portion of Dr. Zaks’ fees.

Supreme Court Rule 303(c)(2) provides that the notice of appeal must specify the judgment or part thereof appealed from. (73 Ill. 2d R. 303(c)(2).) Phil’s notice of appeal contained no reference to the May 19, 1981, order. Thus, this court lacks jurisdiction to review said order. See Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465, cert. denied (1982), 456 U.S. 905, 72 L. Ed. 2d 162,102 S. Ct. 1751.

For the foregoing reasons, the judgment of the circuit court of Cook County is hereby reversed.

Reversed.

WHITE, P. J., and McNAMARA, J., concur.

       Diane married Nicholas Kondos on November 25,1978, in Portland, Oregon.

       This section has been amended by Public Act 82 — 715, effective July 1,1982.