text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS G. LAWSON, Defendant-Appellee.
    Fifth District
    No. 82 — 562
    Opinion filed October 18, 1983.

      Barbara Adams, State’s Attorney, of Hillsboro (Stephen E. Norris and Mark A. LaRose, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Denis McGrady, Jr., of McGrady & McGrady, of Gillespie, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This appeal by the State presents the question of whether the police officer who arrested thé defendant, Thomas Lawson, had the authority to do so when the arresting officer had come to the defendant’s home to arrest him in reliance upon a “warrant list” showing an arrest warrant to be outstanding against him that had, in fact, been served upon him four to six weeks earlier.

On December 23, 1981, at about 9 a.m. William Dolahite, Chief of Police in Litchfield, which is located in Montgomery County, arrived at the defendant’s home to arrest him pursuant to the warrant list. Once inside the defendant’s home he observed cannabis and found, as the result of a search of a coat prompted by the discovery of the cannabis in plain view, a packet of a substance that proved upon subsequent analysis to be cocaine. Defendant was charged that day with the misdemeanor of unlawful possession of cannabis, specifically, not more than 2Va grams of a substance containing cannabis, in violation of section 4(a) of the Cannabis Control Act (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 704(a)). He was charged later with the felony of unlawful possession of a controlled substance containing cocaine, specifically, less than 30 grams of a substance containing cocaine, in violation of section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1402(b)). Following a hearing the trial court, in a docket entry expressing no findings of fact, granted the defendant’s motion to suppress the evidence seized at his residence on the day in question.

At the hearing on the motion to suppress Chief Dolahite testified that a warrant list is received “every month from [the] Montgomery County Sheriff’s Office” and that he was using “our latest warrant list. I assume it was the December list.” The warrant list, he said, indicated that a warrant for the defendant’s arrest was outstanding. He had not had the warrant in his possession but had relied upon the list. He had seen the defendant’s name “on the warrant list for quite a while and had never seen anyone there around the [defendant’s] house,” he said, but “this morning [December 23, 1981] I happened to see someone there.”

At the door of defendant’s residence Chief Dolahite told the defendant that he “had a warrant for him out of Morgan County.” The witness testified that the defendant had asked if he could change his clothes and that he had answered that if defendant did so, the witness would have “to stay with him.” According to the witness, the defendant invited him to come in and sit down. Once inside the residence, in the living room Chief Dolahite observed and seized the contraband in question. The witness testified that at the time of the search and seizure he believed that the warrant was still in effect ant that after he and the defendant had arrived at the police station the defendant informed him that the warrant had already been served. Through a telephone call he placed to officials in Morgan County, Chief Dolahite learned that the warrant had, in fact, already been served. He testified that there were no records in Montgomery County that would have shown the warrant to have been served and that by telephone he notified the sheriff’s office, apparently in Montgomery County, that the warrant had already been served. “[T]he Sheriff’s Office,” he said, “did not know that it had been served or cancelled. And I advised them to cancel it.”

On cross-examination by the State he testified that the warrant list consists of several pages and contains hundreds of names of persons from Montgomery County and other counties upon whom arrest warrants are to be served. The list is, he testified, updated monthly by the sheriff’s department. The list includes both the charge and the amount of bond as well as the date of the warrant. The witness indicated that the usual practice in his department is not to require having the warrant itself in hand as long as the arresting officer considers the warrant valid. He said that if a name is on the warrant list, the police department does not have the warrant itself, explaining, “We have always picked them up on the warrant list and the Sheriff’s Department serves the warrant on them.” Neither the warrant list upon which Chief Dolahite relied nor any prior warrant lists were offered into evidence.

Both the defendant and his girlfriend, Glenda Roche, testified that defendant had told Chief Dolahite at the defendant’s residence that the warrant had already been served, according to Ms. Roche, “about a month” earlier and, according to the defendant, “probably a month, month and a half” earlier. The defendant testified that after Chief Do-lahite had told him at the door of the residence that he had a warrant for the defendant’s arrest, defendant had said, “[I]f you check that I believe you’d see it has already been taken care of.” He testified further that Chief Dolahite had said of the warrant that “it was a whole different deal than what I had already taken care of. He wasn’t sure. He knew it was different than [sic] the other one was [sic] because he knew it had already been taken care of.” The warrant had been issued, he said, for “a hospital bill that I had hard feelings about having to pay. But I didn’t go to court over it and they put a contempt of court order or something like that and I had to go take care of the warrant.” He stated that when the warrant had been served on him, he had “posted bond, [gone] to Morgan County, paid the bill and everything was taken care of.” The defendant denied having invited Chief Dolahite into the house, testifying instead to having told him to “wait right here” on the back porch of the house. Chief Dolahite, he said, “came in anyway.” We note that on numerous points concerning the search the' testimony of Chief Dolahite differs from that of the defendant and Ms. Roche. We need not set forth that testimony in view of the disposition we make in the case.

On appeal the State contends that the arresting officer had the authority to arrest defendant because of his reasonable belief that the warrant was still outstanding. Citing Whiteley v. Warden (1971), 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031, and People v. Decuir (1980), 84 Ill. App. 3d 531, 405 N.E.2d 891, the State concedes that “the law is well settled that a warrant issued without probable cause is per se invalid and cannot be used by an officer as the sole basis for arrest.” However, the State distinguishes the situation in which a warrant has been issued on the basis of insufficient information to support an independent judicial assessment of probable cause from the situation in the case at bar in which the warrant enjoyed unassailable legal existence, at least until sometime in November of 1981 when the defendant posted bond for it.

The State relies heavily upon Childress v. United States (D.C. App. 1977), 381 A.2d 614, in which the arresting officers had observed the defendants acting suspiciously and had learned through a “tag check,” based on the license number of the car in which the defendants were riding, that there were four traffic warrants outstanding for Childress, the owner of the car. The officers stopped the car, ordered the defendants out, and observed certain items in plain view in the car. Police informed Childress that he had been stopped because of the outstanding traffic warrants and arrested him on them. Childress and the other defendants were subsequently found guilty of charges related to the personal property the officers had observed in the vehicle. However, Childress had posted collateral for the outstanding traffic warrants four days before the stop of the vehicle. On appeal the court held, “under the circumstances here presented, the police officers’ good faith reliance on the radio report and the resultant reasonable belief that valid traffic warrants were outstanding provided probable cause to arrest appellant Childress.” (381 A.2d 614, 616.) The court reasoned that

“[administrative delays attendant to the operation of any metropolitan area police department resulted in failure to remove the satisfied warrants from the computerized ‘active’ list before the officers received the radio dispatch on [the day of the arrest] that the warrants were outstanding. This combination of reasonable administrative delay and reasonable police reliance on misinformation produced by such a delay presents a situation in which acceptance of appellants’ position would do nothing to advance the purposes of the exclusionary rule. See Weeks v. United States, 232 U.S. 383, 391-93, 34 S. Ct. 341, 58 L. Ed. 652 (1914). There is simply no unlawful or improper police conduct here to deter.” (381 A.2d 614, 617-18.)

In the omitted footnote the court stated that two days of the four-day delay were “attributable to [a] weekend” and distinguished Childress, on the basis of “[{justifiable administrative delay/’ from the case of United States v. Mackey (D. Nev. 1975), 387 F. Supp. 1121, upon which the defendant in the instant case relies.

In Mackey the defendant had been attempting to “thumb a ride” in Nevada when officers asked him to identify himself. With the aid of information on his driver’s license the officers checked the defendant by computer through the National Crime Information Center and learned that he was wanted in Monterey, California, for violation of probation. The officers arrested him and took him to the police station. While an attempt was being made to verify the defendant’s contention that the warrant was no longer outstanding, the defendant was booked, during which process a shotgun was found in a duffel bag in his possession. Federal charges were brought for possession of the weapon. The warrant in question had, in fact, been complied with approximately five months prior to the defendant’s arrest in Nevada. On appeal, finding it unnecessary to consider the fourth amendment arguments advanced by counsel, the court concluded that the arrest of the defendant under the circumstances constituted a denial of due process of law and granted the defendant's motion to suppress the evidence. The court found that

“a computer inaccuracy of this nature and duration, even if unintended, amounted to a capricious disregard for the rights of the defendant as a citizen of the United States. The evidence compels a finding that the government’s action was equivalent to an arbitrary arrest, and that an arrest on this basis deprived defendant of his liberty without due process of law. Once the warrant was satisfied, five months before defendant’s arrest, there no longer existed any basis for his detention, and the government may not now profit by its own lack of responsibility.” (387 F. Supp. 1121, 1125.)

In reaching its decision the court assessed some of the consequences, both actual and possible, of the error to the defendant:

“Because of the inaccurate listing in the NCIC computer, defendant was a ‘marked man’ for the five months prior to his arrest, and, had this particular identification check not occurred, he would have continued in this status into the indefinite future. At any time, as demonstrated by this situation, a routine check by the police could well result in defendant’s arrest, booking, search and detention. Further, there is no evidence to suggest that defendant would not continue to be subject to such humiliation until Monterey police officials cleared the computer of the warrant.” 387 F. Supp. 1121, 1124.

We find the analysis in the case of People v. Jones (1981), 110 Misc. 2d 875, 443 N.Y.S.2d 298, likewise instructive. In Jones officers discovered, by the use of the number of the license plate on an automobile in which the defendants were passengers, an “alarm” indicating that the automobile had been stolen. Despite the driver’s protestations that the automobile was not stolen, the driver and the defendants were arrested and ordered out of the vehicle. Controlled substances were seized from one of the defendants. The three were taken to the precinct for processing, at which time controlled substances were seized from the other defendant. The vehicle had, in fact, been stolen about three months prior to the arrest of the defendants but had been recovered and returned to its owner about three days after the theft had occurred. There was a failure, however, to correct the information in the data bank of the computer to show that the automobile had been recovered. In considering whether the arrests were valid, the court concluded:

“Absent satisfactory explanation, and here there was none at all, a three-month failure to correct or update the police computer records is unreasonable and unacceptable. While some delay is to be expected, the People have the burden of establishing that the three-month delay in permitting the records to remain uncorrected was not the fault of the police, whether negligent or intentional. Otherwise a person, having once reported his car to be stolen and later having it recovered by the police, would be potentially subject to arrest and consequent search whenever driving in his automobile, for the indefinite future. Moreover, as demonstrated by this case, a similar fate would be lurking with regard to anyone to whom he lends the car. This situation is intolerable.” 110 Misc. 2d 875, 884, 443 N.Y.S.2d 298, 304.

In 1 Search and Seizure sec. 3.5(d), at 636 (1978), Professor La-Fave observes of .such cases,

“The point is not that probable cause is lacking because it turned out that the ‘facts’ upon which the officer acted were actually not true, for quite, clearly information sufficient to establish probable cause is not defeated by an after-the-fact showing that this information was false, any more than information insufficient to show probable cause can be found adequate on the basis of an after-the-fact showing that in fact the conclu-sory allegations were correct. Rather, the point is that the police may not rely upon incorrect or incomplete information when they are at fault in permitting the records to remain uncorrected.”

The State acknowledges that “the Childress line of reasoning must have some temporal limits” but maintains that “the delay of but a few weeks in the instant case, between the satisfaction of the warrant and the arrest, is not so extreme to [sic] necessitate the harsh result justified in Mackey.” However, the amount of time that has passed from the satisfaction of the warrant until the arrest is, we think, not the only factor to be considered in passing upon the question of reliance by police upon incorrect information. The parties have not addressed, for example, the important consideration — and distinction between the instant case and the cases upon which they rely— that the nature of the error here could well lead and, in fact, did lead to a search and seizure that took place in the defendant’s dwelling, as opposed to a search of his automobile or of his personal belongings incident to arrest.

We think the situation in the case at bar is more nearly analogous to the one in Mackey and Jones than to the one in Childress. Here the defendant’s name was erroneously included in the warrant list being used in the month of December. It would presumably have appeared, had he not been arrested in the month of December, on each subsequent warrant list indefinitely into the future. The presence of the defendant’s name on the list used late in December, although the warrant had been served in November, shows that the error was decidedly not the kind of error apparently contemplated in Childress, that is, an error that will be corrected in a short period of time through the operation of routine administrative procedure. The unexplained error in the instant case appears to be one that could have been corrected only, in all likelihood, by the arrest of the defendant, as actually happened. During the period of time in question — and potentially for a much longer period of time — the defendant was subject at any time and in any place, including his home, to the humiliation of arrest, booking, search, and detention through no fault of his own but because of a mistake on the part of the police. Such a situation is not to be tolerated or encouraged by allowing the police to rely on an error of their own making whose detection virtually necessitates the arrest and detention of a citizen, very likely in his own home. Therefore, we hold that under the circumstances the arresting officer lacked the authority to arrest defendant on the warrant for his arrest that was incorrectly included as an outstanding warrant on the warrant list upon which the officer relied.

Because Chief Dolahite entered the defendant’s'dwelling without lawful authority to arrest him in the absence of either exigent circumstances or the voluntary consent of the defendant, his entry was unlawful. (See People v. Bean (1981), 84 Ill. 2d 64, 417 N.E.2d 608.) Even assuming that the defendant did invite Chief Dolahite into the house, although the defendant testified to the contrary, the invitation could not constitute voluntary consent by the defendant to his entry in light of the circumstances under which it was given: Chief Dolahite testified that if the defendant were to change his clothes, the police officer would have “to stay with him,” whereupon the invitation to enter followed. Because the entry into the dwelling was unlawful, the seizure of items from it was illegal. Since the officer lacked the authority to arrest the defendant, the search of the defendant’s coat, if the search of it were considered to have been undertaken as incident to his arrest, was likewise unlawful and the seizure from it illegal. The seizure from the coat was, likewise, illegal. Hence, all of the material seized by Chief Dolahite pursuant to his wrongful entry is inadmissible into evidence. Accordingly, we affirm the trial court’s granting of the defendant’s motion to suppress that evidence.

Affirmed.

KAHNS and EASSERMAN, JJ, concur.


source: Caselaw Access Project

author: JUSTICE JONES

license: Public Domain

text:
    ILLINOIS COMMERCE COMMISSION, Plaintiff-Appellant, v. HOLIDAY UTILITIES CORPORATION, Defendant-Appellee.
    Fifth District
    No. 82—748
    Opinion filed November 8, 1983.

      Neil E Hartigan, Attorney General, of Springfield (Hercules E Bolos, of Illinois Commerce Commission, Special Assistant Attorney General, and Thomas J. Russell, Assistant Attorney General, of counsel), for appellant.
    Richard Shaikewitz and David O. Hesi, both of Wiseman, Shaikewitz, McGivern & Wahl, PC., of Alton, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

This appeal presents the issue, which we raise on our own motion, of whether the circuit court upon judicial review of an order of the Illinois Commerce Commission (hereinafter Commission) exceeded its subject matter jurisdiction in considering the merits of a question upon which the Commission had made no finding and had entered no order.

Following a hearing the Commission issued the order in question on December 6, 1978. According to the introductory statement in the order, the Consumer Assistance Section of the Commission had received numerous complaints concerning the billing practices of the respondent, Holiday Utilities Corporation, which had been granted a certificate of public convenience and necessity by the Commission in September of 1966 to construct, operate, and maintain a public water supply and system for distribution in Holiday Shores Subdivision. The subdivision is a private lake resort development located in Madison County consisting of approximately 1,300 acres, including a man-made lake of 345 acres. The consumer complaint with which we are concerned had to do with the respondent’s demands that current customers pay delinquent water charges incurred by their predecessors in title. In 1977 the Commission had granted a petition to intervene filed in behalf of Holishor Association, Inc., an Illinois not-for-profit corporation whose membership consists solely of owners of lots in the area served by the respondent. In its order of December 6, 1978, the Commission stated under the heading, “Assertions Proposed to and Conclusions Drawn by the Commission”:

“Respondent contends that it is obliged to provide water service to anyone within said subdivision despite the absence of a specific application. The Company asserts that while an application is useful it regards the sale contract as an application. The Company supports this position stating that certain covenants dealing with the Holiday Shores Subdivision were made a part of the sale contract when lots in the subdivision were purchased and provided in part ‘the purchaser contracts and agrees to pay a minimum water use charge not to exceed $12.50 per quarter and/or such water use charges as may be set and/or approved by the Illinois Commerce Commission.’ Respondent claims that such a covenant runs with the real estate and is binding upon grantees of the original purchaser. * * *
The Commission is also of the opinion that any contract or property rights inconsistant [sic] with its filed tariffs, arising out of the said purchase agreements, for lots in the subdivision, between the development company and the property owners which may inure to or devolve upon Respondent should be adjudicated by an appropriate circuit court.”

Concerning respondent’s practice of denying water service to new customers on the basis of unpaid bills of prior owners, the Commission found, on page four of the order, as follows:

“(12) Respondent had no authority under its tariffs or the rules and regulations of this Commission to deny water service to a new customer because the prior owners of the property had not paid water bills and such practice of Respondent is unjust, unreasonable and contrary to its filed tariffs.”

The Commission thereupon ordered that the respondent “immediately cease, desist and refrain from charging, collecting or demanding payments from customers not authorized by its tariffs as set forth in [certain] findings [including Finding 12 thereof] ***.”

The respondent appealed the Commission’s order to the circuit court. On June 28, 1982, a memorandum and judgment of the court was filed in which the court found in pertinent part:

“3. The order of the Illinois Commerce Commission is unlawful to the extent that it purports to prevent the Utility from enforcing liens which accrued from non-payment of lawful water service charges. (Consistent, of course, with the court’s finding regarding available for use charges, so that no lien could result from the failure to pay such a charge if a separate application had not -been signed.) All of the lots in the subdivision are subject to covenants which provide for such liens. These liens run with the land and are enforceable against subsequent owners. This has long been the law in Illinois, and counsel for the Commission has not provided any authority to the contrary.”

The court affirmed in part and reversed in part the order of the Commission, saying with respect to its partial reversal of the order: “Specifically, said order is reversed as to the findings set forth on page 4, paragraph (12), consistent with the findings in this Judgment.”

Thereafter, on August 16, 1982, the Commission filed a petition for relief from final order, pursuant to section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). In its petition the Commission alleged as grounds for relief that prior to a telephone conversation on August 2, 1982, between respondent’s president and, apparently, an agent of the Commission, neither the Commission nor its counsel had received notice of the entry of judgment on June 28, 1982. The Commission further alleged great prejudice occasioned by the entry of the judgment and a meritorious defense to it and sought to have the judgment entered on June 28, 1982, vacated. Upon a hearing on the petition the Commission put on no evidence. The circuit court concluded, because of the Commission’s failure to rebut the presumption that notice was given, that the court lacked jurisdiction to grant the relief the Commission requested and denied the petition for post-judgment relief. The Commission has appealed the order denying such relief raising three issues: (1) whether the circuit court abused its discretion by denying the petition for relief from final order; (2) whether the circuit court erred by reversing the order of the Commission in part; and (3) whether the circuit court erred by denying the Commission’s motion to dismiss as moot the respondent’s appeal of the Commission’s order. However, because of the disposition we make in the case we do not address the merits of the appeal.

Appeals from orders of the Illinois Commerce Commission are purely statutory. (Scherer Freight Lines, Inc. v. Illinois Commerce Com. (1962), 24 Ill. 2d 359, 181 N.E.2d 134; Private Tele-Communications, Inc. v. Illinois Bell Telephone Co. (1975), 31 Ill. App. 3d 887, 335 N.E.2d 110.) Authority to review is derived from section 68 of the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111⅔, par. 72), which provides for appeal to the circuit court “for the purpose of having the reasonableness or lawfulness of the rule, regulation, order or decision [of the Commission] inquired into and determined.” Upon an appeal from an order of the Commission the circuit court is restricted in the exercise of its powers, including the orders it may enter, to those expressly delegated by statute. (Thompson v. Illinois Commerce Com. (1953), 1 Ill. 2d 350, 115 N.E.2d 622.) The only issue presented to the circuit court is the reasonableness and lawfulness of the Commission’s order, upon which the court’s inquiry is confined to the jurisdiction of the Commission, the sufficiency of the evidence, and the preservation of constitutional rights. {Thompson.) Under section 68 the circuit court to which an appeal from an order of the Commission is taken must decide solely upon the record certified by the Commission. (Barry v. Commonwealth Edison Co. (1940), 374 Ill. 473, 29 N.E.2d 1014.) If the order of the Commission is lawful and reasonable it must be confirmed; if it is not, it must be set aside. Thompson.

In the case at bar the Commission stated in its order that an appropriate circuit court should adjudicate any contract or property rights, inconsistent with the respondent’s filed tariffs, claimed to arise out of the purchase agreements for lots in the subdivision and to inure to the benefit of the respondent. The Commission, having declined to adjudicate the matter — and we do not consider whether the Commission would have had jurisdiction to adjudicate such a matter, made neither a finding nor a ruling as to whether the lots of the subdivision were, as the circuit court found, subject to covenants running with the land and enforceable against subsequent owners. The Commission’s finding in paragraph 12, reversed by the circuit court, addressed the respondent’s lack of authority under its tariffs to deny water service to a new customer on the basis of the delinquency, in paying respondent, of prior owners of the property. The order of the Commission was, likewise, phrased in terms of respondent’s cessation from demanding payments unauthorized by its tariffs. The finding and the order with respect to it do not even refer to a lien or a covenant running with the land. Certainly, the finding and order do not deny the existence of such covenants. Thus, on the face of the record certified by the Commission the circuit court, upon judicial review of the Commission’s order, considered the merits of a question that was plainly outside the scope of the Commission’s order.

Undoubtedly the circuit court, by virtue of its power of general original jurisdiction pursuant to section 9 of article VI of the Constitution of the State of Illinois (Ill. Const. 1970, art. VI, sec. 9), could have adjudicated the question of whether such a covenant runs with the land in question, had the question been presented to the circuit court in an appropriate action. Here, however, the circuit court had powers no broader than section 68 confers and, therefore, had the power merely to determine the reasonableness and lawfulness of the order of the Commission, which had made no finding and had entered no order concerning the running of a covenant with the land. The issue the circuit court decided in reversing the Commission’s order in part had not been ruled upon by the Commission, was not addressed by the respondent’s petition for rehearing, and was not implied in the record filed by the Commission. Furthermore, the Commission had expressly excluded the issue from consideration. In ruling upon the issue of whether the lots in the subdivision were subject to a covenant running with the land, the circuit court did not— and could not — consider the lawfulness and reasonableness of an order of the Commission concerning that issue because the Commission’s order embraced no such issue. In short, the issue the circuit court decided was not before it on appeal of the Commission’s order. Insofar as the circuit court determined that the lots in the subdivision were subject to a covenant running with the land enforceable against subsequent owners and requiring reversal of the Commission’s order as to Finding 12 at page four of the order, the circuit court exceeded its jurisdiction. Therefore, that part of the judgment of the circuit court reversing in part the Commission’s order is void. That part of the judgment of the circuit court affirming, or confirming, the Commission’s order, which we do not consider, becomes the entire judgment of the circuit court in its disposition of the respondent’s appeal of the order of the Commission.

Judgment of June 28, 1982, vacated insofar as it reverses in part the order of the Commission of December 6,1978.

HARRISON, P.J., and EARNS, J., concur.


author: PRESIDING JUSTICE HARRISON

text:
    BELLEVILLE NATIONAL BANK, Plaintiff-Appellee, v. MARVIN L. ROSE et al., Defendants-Appellants.
    Fifth District
    No. 83 — 23
    Opinion filed November 4, 1983.

      Carl W. Lee, of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellants.
    Preston K. Johnson, Sr., and Preston K. Johnson, Jr., both of Belleville, and John Michael Clear and John I. Alber, both of St. Louis, Missouri (Johnson & Johnson and Bryan, Cave, McPheeters & McRoberts, of counsel), for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

On March 14, 1978, defendants Marvin and Virginia Rose signed a promissory note for $810,000, payable to plaintiff Belleville National Bank. The first line of the note stated that the debt was payable, “On Demand, and if no demand be made, then payable Five (5) Years after date ***.” At the same time, a second note was signed, purportedly to facilitate intermediate draws on additional loan funds without additional documentation. There was never a question that only one debt was owed. The second note read as follows:

“FOR VALUE RECEIVED, We hereby promise to pay to BELLEVILLE NATIONAL SAVINGS BANK, Belleville, Illinois, or order, on demand or if no demand be made, then due and payable Five (5) Years from the date thereof, the sum of EIGHT HUNDRED TEN THOUSAND ($810,000) DOLLARS, together with interest at the rate of Nine (9%) Per Cent per annum, payable quarterly.”

Defendants signed two additional notes for another single loan on November 20, 1978. The form of the notes was identical to those issued previously, though the amount of the loan was $60,000 and the interest rate 9V2%. Defendants secured both loans for the purpose of purchasing and developing a tract of land known as “Rosewood,” and this tract was pledged as collateral. Defendants claim they did not read any of the documents before signing. On July 23, 1979, plaintiff notified defendants that the interest rate on the unpaid balance of the loans would be increased. At a meeting with the president of the Bel-leville National Bank, at which defendant Marvin Rose was accompanied by counsel, Mr. Rose requested that the interest rate not be increased, but this request was not acceded to by the bank. Defendants subsequently made payments at the higher rate of interest. On November 21, 1979, plaintiff notified defendants that the notes would be called unless they were refinanced. On December 31, 1979, defendants signed a new note for $705,000, payable “[o]n demand and if no demand be made, then payable March 14, 1983,” with interest that would fluctuate in accord with the prime rate.

Plaintiff called the note on July 10, 1981. Alleging that plaintiff had misrepresented the terms of the original notes by falsely telling defendants that the notes were for fixed five-year terms at fixed interest rates, thus securing the loans by fraud, defendants filed an action against plaintiff in the circuit court of St. Clair County on September 30, 1981. Plaintiff simultaneously answered defendants’ petition and instituted the instant litigation by filing its own separate foreclosure action on October 23, 1981. Plaintiff’s motion for summary judgment was granted on October 28, 1982, and final judgment was entered on December 8, 1982. From this judgment, defendants appeal. In granting plaintiff’s motion, the trial court concluded the defense of fraud offered by defendants was deficient as a matter of law, since the rule in Illinois is that “a party who signs a written agreement and has had the opportunity to review it, may not subsequently claim that he was fraudulently induced to enter into the agreement based on misrepresentations as to its terms.” The court further stated that, under Illinois law, a party who is fraudulently induced to enter a contract waives the right to assert a claim of fraud when that party subsequently learns of the fraud and agrees to modify the agreement, and that defendants’ refinancing of the original loans constituted such a waiver. On appeal, defendants challenge these conclusions and further argue that plaintiff, by failing to deny the affirmative defense of fraud set forth in defendants’ answer, admitted the truth of the defense for purposes of summary judgment pursuant to section 2 — 610 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 610(b)).

We first consider defendants’ contention that the court erred in ruling that the defense of fraud was deficient as a matter of law. For the sake of clarity, we must distinguish two categories of fraud traditionally employed in actions upon written instruments. Fraud in the execution of an instrument is practiced “ '*** where the instrument is misread to the party signing it, or where there is a surreptitious substitution of one paper for another, or where, by some other trick or device, a party is made to sign an instrument which he did not intend to execute.’ ” (Turzynski v. Libert (1970), 122 Ill. App. 2d 352, 358-59, 259 N.E.2d 295, 298, quoting Papke v. G. H. Hammond Co. (1901), 192 Ill. 631, 635.) Fraud in the inducement, on the other hand, exists where “the party fully understands what he is signing, and is aware of the nature and character of the instrument executed by him, but is deceived by fraudulent representations as to the facts outside the instrument itself.” (192 Ill. 631, 635.) While defendants’ brief repeatedly asserts that both types of fraud may avoid a written agreement, and indeed seeks to characterize the instant case as one involving “fraud in the execution,” defendants’ counsel specifically stated at oral argument that the fraud alleged in the present action is properly characterized as “fraud in the inducement.” We set forth this distinction to demonstrate, first, that we are aware of it, and second, that confusion may have been engendered by its application in the case at bar. For the reasons discussed below, we do not believe that the label assigned to the alleged fraud is itself dispositive of the action.,

The defense of fraud is, in most situations, unavailable to avoid the effect of the written agreement where the complaining party could have discovered the fraud by reading the instrument, and was in fact afforded a full opportunity to do so. This elementary principle of contract law was aptly stated in Leon v. Max E. Miller & Sons, Inc. (1974), 23 Ill. App. 3d 694, 699-700, 320 N.E.2d 256, 260:

“One is under a duty to learn, or know, the contents of a written contract before he signs it, and is under a duty to determine the obligations which he undertakes by the execution of a written agreement. [Citation.] And the law is that a party who signs an instrument relying upon representations as to its contents when he has had an opportunity to ascertain the truth by reading the instrument and has not availed himself of the opportunity, cannot be heard to say that he was deceived by misrepresentations. ’ ’

We note parenthetically the statement in appellant’s brief that fraud in the execution may avoid a contract even though the defrauded party had a full opportunity to read the written agreement is, to our mind, a contradiction in terms, since fraud in the execution, by definition, involves some deception whereby the party is denied a full opportunity to read the document. There is no question that defendants in the instant case had the opportunity to read the note they signed and discover that the terms of the note were not the same as the terms which defendants claim were presented to them orally. The issue, then, is whether the bank’s alleged conduct, whatever its name, was such as to remove the present action from the established rule of law.

Defendants have directed our attention to cases where fraud has been recognized as a defense to an action on a written contract where the guarantor of a corporate obligation claimed that a bank officer had misrepresented that the bank was an investor in a business venture (Colonial Bank & Trust Co. v. Kozlowski (1982), 106 Ill. App. 3d 639, 435 N.E.2d 1251); where a maker executed a note in substitution of a prior obligation in reliance on the payee’s alleged promise that, pursuant to a complex scheme involving tax evasion, the maker would not be held liable on the note (Shanahan v. Schindler (1978), 63 Ill. App. 3d 82, 379 N.E.2d 1307); where it was claimed that false representation was made to the makers of the note that they were not, by reason of signing the document, obligated to pay (Kuh v. Williams (1973), 13 Ill. App. 3d 588, 301 N.E.2d 151); where the purchaser of corporate assets relied upon the seller’s alleged misrepresentations concerning the company’s prior compliance with Federal regulations (Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435, 437 N.E.2d 817); and where a cosigner of a note claimed she was told that the note was a paper necessary to transfer a banking account (Melvin State Bank v. Crowe (1968), 97 Ill. App. 2d 82, 239 N.E.2d 483).

Of the aforementioned cases, all except Melvin State Bank v. Crowe are distinguishable from the instant case on the ground that the fraud alleged in each instance was not discoverable upon reading the terms of the respective documents that bound the parties. This would appear to be why, again with the exception of Melvin, the rule that a party may not avoid an instrument signed by him on the basis of fraud when the party could have discovered the truth by reading the instrument is not discussed in any of these cases. The written agreement at issue in Melvin was avoided on the basis of lack of consideration. The court nevertheless proceeded to state why the specific facts of that case would provide an exception to the established rule:

“The Bank’s position that only fraud in the execution and not fraud in the inducement will avoid an instrument where a person has a full opportunity to read the instrument is not tenable here. First, it is a complete answer that a false representation as to a nonexistent prior obligation will not create such an obligation and thus supply a consideration. Second, such a false representation by an experienced banker, possibly in the presence of an employer, is calculated to disarm an inexperienced person. Third, it affirmatively appears that the judgment note was not explained to [defendant]. Fourth, it is obvious that [defendant] did not understand the matter of the guarantee agreement because she signed it on an occasion when the banker told her she had already signed it.” 97 Ill. App. 2d 82, 96.

It is our judgment that the factors in Melvin which together constituted an exception to the established rule are not present in the case at bar. While the alleged misrepresentation to defendants was made by an experienced banker, the misrepresentation cannot reasonably be viewed as one made to an inexperienced person within the context of Melvin. The situation in that case was one in which a woman with an eighth grade education, “not familiar with financial arrangements,” was induced by a bank officer to invest funds in her employer’s business. Thereafter, she was visited by the same bank officer at the factory where she worked and purportedly told that certain papers needed to be signed to transfer a bank account of that business. She proceeded to sign a guarantee agreement and cosign a note for payment of $15,000 that her employer had borrowed from the bank. The fact that the documents in Melvin were neither explained to the signer nor understood by her cannot, in itself, dictate an exception to the rule that fraud is not a defense available to one who is afforded a full opportunity to discover the fraud by reading the instrument. Otherwise, the rule is rendered meaningless. Rather, the lack of explanation and understanding must be seen within the framework of what the court apparently viewed as the manifestly unequal position of the parties. Such inequality is not a factor in the present action. Defendant Marvin Rose is a professional real estate broker who previously signed demand notes in the course of his business. It would be unreasonable to assume that, by reason of the banker’s presence, defendants were intimidated into signing the document, or that defendants would not have realized, upon reading the first line of the instrument, that the note they were signing would be payable on the bank’s demand. There is thus no satisfactory basis upon which the instant case may be excepted from the established rule.

Defendants further contend that summary judgment was inappropriate because plaintiff failed to deny the affirmative defense of fraud raised in defendants’ answer, thus admitting the truth of the defense pursuant to section 2 — 610 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 610(b)). Such a failure to reply, however, admits only well-pleaded facts in the answer, and in no way ratifies the legal conclusion drawn by the pleader of an affirmative defense. (Hall v. Humphrey-Lake Corp. (1975), 29 Ill. App. 3d 956, 963, 331 N.E.2d 365, 371.) The facts alleged in the answer are not subject to dispute. Rather, the contested issue is whether the facts alleged in the answer are sufficient to constitute a valid legal defense. Since we have determined that the defense of fraud is, as a matter of law, unavailable in the instant case, the mere admission of the facts set forth in defendants’ answer does nothing to bar summary judgment. This determination also renders unnecessary a consideration of defendants’ claim that the trial court erred in finding that the defense of fraud was waived by execution of the demand note of December 31, 1979, whereby the original note was refinanced in accord with the shifting interest rate.

The judgment of the trial court is affirmed.

Affirmed.

JONES and KASSERMAN, JJ., concur.


author: JUSTICE KASSERMAN

text:
    ROYAL PAUL LUEPKER, Plaintiff-Appellant, v. ELLARD FLOYD RIESO et al., Defendants-Appellees.
    Fifth District
    No. 82 — 601
    Opinion filed November 3, 1983.

      Kevin C. Kaufhold and Katherine J. Tillery, both of Kassly, Bone, Becker, Dix and Tillery, P.C., of Belleville, for appellant.
    Robert J. Jennings, of Jennings, Tedesco, Flynn & Guymon, of Belleville, for appellee Marilyn Dahm.
    Floyd E. Crowder, of Crowder, Traughber & Scoggins, Ltd., of Columbia, for appellee Ellard Floyd Rieso.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This appeal is from a judgment in a will contest proceeding. In his amended complaint, Royal Paul Luepker, plaintiff, alleged that the provisions of the will of the testator, Theophil Rieso, should not have been found to be operative as to specific property purported to have been disposed of by such will because said disposition was contrary to certain provisions of the will of Lillian Rieso, testator’s wife, who predeceased him. Plaintiff urged that by reason of his petitioning to have Lillian’s will admitted to probate and by accepting certain benefits under the will, Theophil became barred from making any disposition of property contrary to .the provisions of Lillian’s will. The relief sought by plaintiff as against defendants, Ellard Floyd Rieso and Marilyn Dahm, co-executors of Theophil’s estate, was in pertinent part as follows: (1) a declaration that Theophil was barred by law from devising or bequeathing property received under Lillian’s will is a manner in conflict with the provisions of Lillian’s will; and (2) a declaration that Theophil’s will was inoperative to dispose of property which Theophil received on Lillian’s death. Plaintiff appeals from the trial court’s denial of all relief requested.

The record indicates that Theophil and Lillian were each married prior to their marriage to each other. Plaintiff is Lillian’s son from her first marriage; and defendants are Theophil’s children from his first marriage. No children were born to Lillian and Theophil.

Lillian’s will was executed on January 22, 1957. In addition to naming plaintiff and Theophil executors and providing for payment of just debts and funeral expenses, it made a gift of a house to plaintiff in fee simple, and, in the event that Lillian and Theophil died in a common disaster or simultaneously, all of her real and personal property was devised to plaintiff and to Ellard Floyd Rieso, share and share alike, in fee simple. The will also contained the following two paragraphs:

“I give, devise and bequeath all the rest, residue and remainder of my property, both real and personal, wherever situated, to my husband Theophil J. Rieso to have and to hold for and during his life and after his death to my son Royal Paul Leupker and Ellard Floyd Rieso, my husband’s son, equally, share and share alike, in fee; provided, however, that if my said husband Theophil J. Rieso should remarry prior to his death then all of my property, real and personal, wherever situated, shall be divided equally between my said husband Theophil J. Rieso, my son Royal Paul Luepker, and Ellard Floyd Rieso, my said husband’s son, to have and to hold forever. * * *
It is understood between my said husband Theophil J. Rieso and myself that there is certain real property held by us in joint tenancy, and both of us realizing and knowing that such property passes to the survivor upon the death of one of us, and in consideration of the fact that this property was acquired through both of our joint efforts through our married life, and in further consideration of our love and affection for each other, it is hereby agreed that upon the death of both of us said property, which is held in joint tenancy, shall pass to both of our sons, namely, Royal Paul Luepker and Ellard Floyd Rieso to have and to hold forever. It is further agreed between my husband Theophil J. Rieso and myself that in the event that such joint tenancy property shall be sold during the lifetime of the survivor that one-third of the proceeds of said sale will be paid to my son Royal Paul Luepker, one-third of the proceeds of said sale will be paid to my husband’s son Ellard Floyd Rieso, and the other one-third of the proceeds of said sale will be paid to the survivor.”

Lillian died in 1972. Included in the probate court file for her estate is a document entitled “Petition for Authority to Transfer Interest in Motor Vehicle” which was filed February 15, 1973. The petition recites that among the assets of the estate was a 1970 Buick automobile, which was owned by the decedent and Theophil “as tenants in common,” and that Theophil was given a life estate in the personal property of the decedent under the will. The petition, seeking authorization to transfer the automobile to Theophil individually, was granted by the court.

The estate tax return for Lillian’s estate lists among the assets of the estate a checking account valued at $377.46, the Buick automobile valued at $1,950 and “miscellaneous personal effects” valued at $150. The return also includes the following assets owned by Lillian and Theophil, as joint tenants: a passbook account ($6,298.88); automatic renewal certificates ($11,900); certificates of deposit ($10,300); and real estate valued at a total of $23,500.

Theophil died in 1979, leaving a will executed August 17, 1978. Except for two minor bequests not pertinent here, Theophil’s will left all of his real and personal property to his children, the defendants herein. No provision was made for plaintiff.

Plaintiff argues that by accepting benefits under Lillian’s will, Theophil either: (1) made an irrevocable election to comply with all of the terms of Lillian’s will, including its provisions in favor of plaintiff, or (2) became estopped to act otherwise than in compliance with the terms of Lillian’s will. Defendant Ellard Floyd Rieso has confessed that the trial court erred in its judgment and concedes at oral argument before this court that his interests would be best served by reversal of that judgment.

The law applicable to plaintiff’s first contention was stated by our supreme court in Lloyd v. Treasurer of State of Illinois (1948), 401 Ill. 520, 525-26, 82 N.E.2d 470, 473, in which the court stated:

“Election under a will consists in the exercise of a choice offered a devisee or legatee of either accepting its benefits and surrendering some claim, right or property which the will undertakes to dispose of, or of retaining his claim, right or property, and rejecting the provisions made for him by the will. He cannot do both. Where such a claim is inconsistent with the provision of a will, the testator does not intend the beneficiary shall enjoy both the right or property claimed and what is given by the will. Since the intention of the testator is that all the provisions of the will should take effect, a beneficiary cannot accept what is given by the will and set up any right or claim, irrespective of however legal or well founded, which would defeat or prevent a full operation of the will.”

It is indispensable to the application of the doctrine of election that there be (1) a plurality of gifts, or two inconsistent or alternative rights or claims in property devised, the choice of one by the devisee being intended to exclude him from the benefit of the other, and (2) in case the property of the devisee is disposed of by the will, and he chooses to assert his right to such property against the will, that there be a fund for his benefit, given by the will, which can be used to compensate the parties whose right to take under the will is defeated by the election. (Carper v. Crowl (1894), 149 Ill. 465, 477-78, 36 N.E. 1040, 1043.) The doctrine of election can never be applied except where, if an election is made contrary to the will, the interest that otherwise would pass by the will can be laid hold of to compensate the other legatees for what is taken away from them. (Commissioner of Internal Revenue v. Kelly’s Estate (7th Cir. 1936 ), 84 F.2d 958, 962, cert, denied (1936), 299 U.S. 603, 81 L. Ed. 445, 57 S. Ct. 230.) Moreover, under appropriate circumstances a court will limit a surviving tenant’s disposition of joint tenancy property. See Moline National Bank v. Flemming (1980), 91 Ill. App. 3d 398, 402, 414 N.E.2d 936, 939.

The issue before us, therefore, is whether the trial court properly determined that Theophil did not receive some benefit under Lillian’s will, which he would not otherwise have received, sufficient to require application of the doctrine of election. We view the facts as showing no such benefit. True, Theophil apparently received decedent’s checking account and personal effects and her interest in the automobile. These items were all subject to disposition by the decedent to whomever she chose. However, at the time of Lillian’s death, a surviving spouse was entitled to a surviving spouse’s award in no event to be less than $2,500. (Ill. Rev. Stat. 1971, ch. 3, par. 178.) Theophil was entitled to said award unless the will of the decedent expressly specified that the provisions of the will for the surviving spouse were in lieu of the award and the surviving spouse did not renounce the will. Ill. Rev. Stat. 1971, ch. 3, par. 182.

The instant will contained no such provision. It appears that the combined value of the personal property bequeathed to Theophil by Lillian fell short of $2,500. Although it is a decision not binding on Illinois courts (see City of Chicago v. Groffman (1977), 68 Ill. 2d 112, 368 N.E.2d 891), the court in Commissioner of Internal Revenue v. Kelly’s Estate (7th Cir. 1936), 84 F.2d 958, concluded that no benefit conferred by the testator’s will sufficient to require application of the doctrine of election had occurred where the record did not show that the benefit to the surviving spouse under the will exceeded the minimum surviving spouse’s award of $500 then in effect. Ill. Rev. Stat. 1933, ch. 3, par. 75.

We find the reasoning in Kelly to be persuasive in the instant case. No justification appears to exist for determining that Theophil made an irrevocable election to dispose of the joint tenancy property in conformance with Lillian’s will. He received no actual benefit in return which he would not have been entitled to absent Lillian’s will. Stated another way, his receipt of personal property by reason of Lillian’s will appears to be entirely consistent with his decision not to be bound by the terms of Lillian’s will when he drafted his own will because the value of the surviving spouse’s award would have exceeded the value of the personal property received by him from Lillian’s estate. Under these facts, the trial court did not err in refusing to apply the doctrine of election.

Plaintiff also argues that the trial court erred in refusing to hold Theophil to be estopped from denying the validity of the dispositional provisions of Lillian’s will. This contention is founded upon the same line of authority which supports plaintiff’s contention regarding election. (See Hunt ex rel. City of Streator v. Evans (1890), 134 Ill. 496, 504, 25 N.E. 579, 581.) The fact is that the acts done (or admitted) by Theophil no more support estoppel than election. Before a party can raise the issue of estoppel there must be conduct which was calculated to mislead him. (Ptasek v. Konczal (1955), 7 Ill. 2d 145, 153, 130 N.E .2d 257, 261.) The record indicates that Theophil’s conduct with respect to Lillian’s will could not be said to have misled plaintiff in any way.

Plaintiff, citing Allwood v. Cahil (1943), 382 Ill. 511, 47 N.E.2d 698, also argues that “the probate of a will is an adjudication of its legality and binding effect which cannot be collaterally attacked.” Plaintiff’s reliance on Allwood is misplaced. Here there is no collateral attack on Lillian’s will. The only question is its legal effect in light of Theophil’s conduct.

Plaintiff further urges that the trial court erred in admitting “evidence” at trial that joint tenancy property could only be devised by contract. We need not address that issue, since plaintiff’s arguments relative to election and estoppel must be rejected in any event. The judgment may be sustained upon any ground warranted by the record, irrespective of whether the particular reasons given or conclusions rendered are correct. City of Rockford v. Maxwell (1968), 92 Ill. App. 2d 336, 340, 234 N.E.2d 563, 566.

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

Affirmed.

HARRISON, P.J., and WELCH, J., concur.


text:
    RICHARD WEISS, Plaintiff-Appellee, v. COLLINSVILLE COMMUNITY UNIT SCHOOL DISTRICT NO. 10, MADISON COUNTY, Defendant-Appellant.
    Fifth District
    No. 82 — 652
    Opinion filed September 30, 1983
    Rehearing denied November 1,1983.

      Donald J. Dahlmann and James C. Cook, both of Walker & Williams, P.C., of Belleville, for appellant.
    John H. Hustava and William W. Schooley, both of Law Office of William W. Schooley, of Granite City, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant, Collinsville Community Unit School District. No. 10 (school district), appeals from a judgment of the circuit court of Madison County entered on a verdict in favor of plaintiff, Richard Weiss, in the amount of $62,420.65.

Plaintiff brought an action to recover damages for an alleged personal injury he suffered while playing softball in a physical education class conducted at Collinsville High School. The school district was found liable to plaintiff for wilful and wanton misconduct. On appeal, the school district argues that the trial court erred by not directing a verdict in its favor and that certain portions of plaintiff’s closing argument were so prejudicial that it was deprived of a fair trial.

On November 30, 1981, the date this cause was set for trial, the trial court allowed plaintiff to file a third amended complaint, which included a count based upon wilful and wanton misconduct. In this count plaintiff alleged that the school district failed to instruct students regarding running the bases and sliding techniques used in softball, failed to maintain the first base line, failed to provide a secure first base, and failed to provide a safe field and that these omissions proximately caused plaintiff’s injuries.

On December 1, 1981, the trial began. Robert Lochman, a student at Collinsville High School who was in plaintiff’s physical education class, testified that on October 30, 1974, he and plaintiff were playing softball as part of the class curriculum. He said that he observed a cloud of dust and then saw plaintiff and another student, Mike Mancini, on the ground near first base. Mr. Lochman also testified that his physical education teacher, Frank Pitol, did not give their class any instructions on playing softball during his sophomore year. Mr. Loch-man stated that he had played little league baseball for a number of years and did not believe he needed instruction on the fundamentals of softball. He stated that Mr. Pitol usually stayed on the softball field when the students were playing and that Mr. Pitol was umpiring the game at the time plaintiff collided with Mike Mancini. Mr. Lochman described the field as a “regular softball diamond” and first base as a rubber mat about 12 inches square and about one-half to three-fourths of an inch thick.

Frank Pitol, the teacher of plaintiff’s sophomore physical education class, testified that softball was taught progressively from junior high school through the sophomore year. Mr. Pitol stated that at the sophomore level he reviews the rules taught in freshman year. He said that prior to beginning play he inquires whether the students understand this review and if the students have any questions. According to Mr. Pitol, he prohibited stealing and bunting for safety reasons. Mr. Pitol testified that at the time of plaintiff’s collision with Mike Mancini, he was umpiring the softball game near first base. Mr. Pitol could not recall instructing his students regarding sliding but did, along with other teachers, develop a curriculum guide for teaching skills needed for softball. Mr. Pitol believed that all his students were acquainted with the fundamentals of softball and were capable of participating in the game. He further testified that the softball field in the area of first base had no holes or crevices which might cause an injury.

Kenneth McAllister, a student who witnessed the collision between plaintiff and Mike Mancini, testified that the collision occurred when Mike Mancini slid into first base and knocked plaintiff down. Mr. McAllister said that Mr. Pitol’s physical education class had played softball on previous occasions but were not given any instructions regarding the game nor was the class taught sliding techniques.

Lonny Giddins, another student who was an eyewitness to the collision between plaintiff and Mike Mancini, recalled that plaintiff was pitching during the softball game and that when plaintiff went to cover first base, the batter slid into first base, moved the base, and knocked plaintiff to the ground.

Plaintiff testified that his softball and baseball experience prior to his sophomore year in high school consisted of five years in little league beginning at age eight or nine and then various church teams his freshman year of high school. He testified that on October 30, 1974, during physical education class he pitched a softball to Mike Mancini, who hit a line drive between first and second base which bounced into the outfield. Plaintiff said that he ran to cover first base, that he was hit from behind by Mike Mancini while standing on first base, and that this collision apparently caused injury to his ankle and knee. He recalled that Mr. Pitol had umpired the game and that he had played softball during physical education class once or twice before. Plaintiff also indicated that Mr. Pitol did not adequately teach him the rules of softball.

Kenneth Sheffield, who teaches physical education in St. Louis, testified that he had umpired, coached, and taught the sport of softball. He said he always began teaching softball with the presumption that the students were totally ignorant of the game. In response to two hypothetical questions, Mr. Sheffield stated that, in his opinion, plaintiff’s injury could have been prevented if proper instructions had been given to the physical education class or if a canvas bag base fastened to the ground would have been used. He further stated that in his opinion it is the physical education teacher’s duty to advise students of the dangers of sliding and that, in his own gym classes, he forbids sliding because he considers it very dangerous.

After the jury’s verdict finding defendant liable for wilful and wanton misconduct, defendant filed a post-trial motion, in which defendant alleged, inter alia, that under the standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513, it was entitled to a judgment as a matter of law. The trial court denied defendant’s motion and defendant perfected this appeal. We find that the evidence, when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors defendant that no contrary verdict could stand and, therefore, reverse the trial court’s judgment.

Absent proof of wilful and wanton misconduct, educators are immune from tort liability for personal injuries sustained by students during school activities. (Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 172-73, 347 N.E.2d 705, 709.) To impose liability upon educators, a plaintiff must allege and establish that when the educators acted, or failed to act, it was with knowledge that such conduct posed a high probability of serious physical harm to others. (Pomrehn v. Crete-Monee High School District (1981), 101 Ill. App. 3d 331, 335, 427 N.E.2d 1387, 1390.) To constitute wilful and wanton conduct, the educator must be conscious, or should have been conscious, of the risks and dangerous consequences of the act or failure to act. Pomrehn v. Crete-Monee High School District; see Montague v. School Board (1978), 57 Ill. App. 3d 828, 831-32, 373 N.E.2d 719, 721-22.

While this arguably may be characterized a case of simple negligence, we conclude that the school district was not guilty of wilful and wanton misconduct. The evidence established that the school district maintained an established curriculum regarding the teaching of softball in its physical education classes, that plaintiffs physical education teacher adequately supervised the softball games, and that the students in plaintiff’s class, including plaintiff, had substantial experience playing baseball and softball. In this regard, there is no evidence that Mike Mancini received no instruction or lacked experience regarding softball other than plaintiff’s inference that Mancini must have been without experience or instruction in the game, otherwise he would not have slid into first base. Moreover, the evidence fails to show any substantial defect in the field or equipment which would warrant the imposition of liability upon the school district based upon wilful and wanton misconduct. The condition of the field is not shown to have in any way been a cause of plaintiff’s injury. While the unsecured rubber mat which was used as first base conceivably could have contributed to plaintiff’s injury, and while a secured canvas bag may offer safety advantages, we cannot say that the use of the mat or the failure to employ a secured canvas bag amounted to wilful and wanton misconduct.

Plaintiff’s reliance on this court’s opinion in Landers v. School District No. 20S (1978), 66 Ill. App. 3d 78, 383 N.E.2d 645, is misplaced. In that case, the student’s physical education teacher ignored obvious dangers created by plaintiff’s fear, inexperience, and excessive weight and ordered plaintiff to perform a difficult backward somersault. In the case now before us there is no showing of such utter indifference to plaintiff’s safety.

Because we find no wilful and wanton misconduct present in this case, we need not consider defendant’s alternative argument regarding statements made by plaintiff’s counsel during closing argument.

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

Reversed.

JONES and EARNS, JJ., concur.


text:
    BANK OF BELLEVILLE et al., Plaintiffs-Appellees, v. BELINDA STIDIMIRE et at., Defendants-Appellants.
    Fifth District
    No. 82 — 696
    Opinion filed October 20, 1983.
    Thomas E. Kennedy III, of Land of Lincoln Legal Assistance Foundation, Inc., of East St. Louis, and Joel D. Brett, law student, for appellants.
    Harry J. Sterling, P.C., of Fairview Heights, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

This is a consolidated forcible entry and detainer action against defendants, Belinda Stidimire and Johnnie Mae Yarbrough, who were tenants of Avalon Mobile Court in East St. Louis. After a consolidated bench trial, the circuit court of St. Clair County entered judgment for plaintiff for possession and attorney fees. Stidimire and Yarbrough appeal.

Each complaint sought possession and a judgment for back rent. Each was filed together with a copy of a “Notice to Vacate,” indicating that the originals had been delivered to the respective defendants. Each “Notice” states that the tenant has five days to vacate the premises. Neither notice specifies any reason for the demand to vacate, and neither alleges any sum of money to be due and owing. Each defendant moved to dismiss the cause on the grounds, inter alia, that said notice was insufficient for failure to state that the respective tenant could avoid termination of the lease by paying the rent due. In a written order, the trial court found the notices “sufficient for possession— not rent.”

Each defendant filed an “Answer, Affirmative Defense, Counterclaim.” Each "Affirmative Defense” alleged that the respective mobile home had certain significant defects, that the respective defendant had notified plaintiff and its agents of these defects, and that the requested repairs had not been made. Each defendant alleged that the defects reduced the rental value of the respective premises to approximately zero and that plaintiff’s complaint should therefore be dismissed. As to the Stidimire trailer, the defects alleged were as follows: the exterior door has no lock; the front stairs are unstable and dangerous; the toilet must be filled manually; the kitchen floor is caving in; the trailer is not tied down; the bottom of the trailer is not skirted; and the windows will not open. Yarbrough alleged the following defects: the windows and doors leak; the stairs are unstable and dangerous; the fuse box is exposed and malfunctioning; the exterior sewer line is broken and leaking; electrical sockets are uncovered; the trailer is not tied down; the bottom is not skirted; and the owners terminated gas service on July 6, 1982. By way of counterclaim, each defendant sought damages for reduced value of the respective premises in the amount of all rent actually paid since the period of the lease began. Each defendant also sought to have plaintiff ordered to repair the alleged defects.

Exhibits in evidence at the August 9, 1982, joint trial included the Stidimire and Yarbrough leases. Paragraph 13 of each of the four-page leases states:

“The Tenant has inspected the home, its furniture and furnishings and accept [sic] it in good condition. If the Tenant shall find anything not in acceptable condition ***, a written statement of any objections must be delivered to the Owner within 3 days after taking possession; otherwise it will be conclusively presumed that the home, the furniture and furnishings are in acceptable condition ***.”

Witnesses at trial included: Leona Agers, manager of Avalon Mobile Court; Ernest Shaefer, a Washington Park building inspector; and defendants.

Agers testified that neither defendant’s trailer was tied down or skirted; that she had not been inside either trailer; and that both defendants complained continually about conditions. According to Ag-ers, Yarbrough had complained to her about the front door leaking, the storm door being off, and the air conditioner not working; but she stated that she knew of no problem with Yarbrough’s sewer line, fuse box, or front steps. Agers testified that Yarbrough had stated that no rent would be paid until the door was fixed. Agers further testified that Stidimire’s steps might have holes and that Stidimire’s weak kitchen floor was repaired prior to Stidimire’s moving in. According to Agers, Stidimire’s front door had locked when Stidimire moved in. Sti-dimire had complained about the steps but not about her toilet.

Asked whether she had notified anybody at Avalon in writing within three days after moving in regarding the defects in the trailer, Stidimire testified that she had not done so but that she had complained in person. Stidimire testified that the front door had never locked; that both she and her son had been injured by the hole in the front stairs; that the toilet would not flush unless a bucket of water was poured into it; and that most of the windows had no cranks with which to open them and those which did open would not close tightly. According to Stidimire, the stairs, door, and toilet were all in the same condition as when she moved in. The weak kitchen floor, however, had not been immediately apparent as it was covered by carpet. According to Stidimire, the trailer was unsafe, but she had moved in anyway “Because I didn’t have nowhere to go and I thought she told me they were going to take care of the matter.” She admitted telling Agers she would pay the rent when the trailer was repaired.

Yarbrough testified that she had been complaining about her trailer since she moved in. Specifically, she cited the following: water leaked in the front door; the storm door screen had been torn off by a storm; the wooden front stairs wobbled dangerously; the fuse box under the trailer was exposed and within reach of her children; the air conditioner would not run; the back door would not lock; there were two inoperative indoor electrical sockets; there were no storm windows in the front part of the trailer; and waste from the bathroom sewage pipe was leaking onto the ground. According to Yarbrough, when she had asked to talk to the owner, Agers had told her she had to come to Agers. Yarbrough admitted not having complained of any of these defects in writing within three days of moving in. According to Yarbrough, the trailer was in the same condition as when she moved in.

Ernest Shaefer, the building inspector, testified that when he visited defendants’ trailers near the end of June, the trailers were not tied down or skirted and he noted defects in windows, floors, doors, air conditioning, and front steps. He testified that the trailers were clean; however, in his opinion they should not be lived in. He testified that he would have condemned them if he could have but that he could not because they were being occupied.

By written order filed August 13, 1982, the trial court found plaintiff entitled to possession of both trailers, as well as costs of suit and attorney fees; the court found for plaintiff on defendants’ counterclaims. The order criticized all of the parties, plaintiff for the condition of the trailers and defendants for accepting the premises as is with full knowledge of their condition and then withholding the rent. By written order filed October 25, 1982, the trial court denied post-trial motions by defendants. The court observed that defendants were aware of the condition of the premises upon taking possession and were aware of the terms of the lease but failed to take the appropriate steps under the lease “and would now seek to profit by their own defaults.” The court also held defendants estopped to assert plaintiff’s alleged breach of the implied warranty of habitability but stated that “[a]bsent the aforesaid knowledge of defendants the court would find otherwise.”

Defendants first contend that the trial court should have dismissed plaintiff’s complaint because the respective notices to vacate failed to comply with section 22 of the Mobile Home Landlord and Tenant Act (Ill. Rev. Stat. 1981, ch. 80, par. 222). We agree and reverse.

Statutes in derogation of the common law are strictly construed, and a party seeking a remedy thereunder must comply with the requirements of the statute, especially with respect to jurisdiction. (Avdich v. Kleinert (1977), 69 Ill. 2d 1, 6, 370 N.E.2d 504, 507.) The doctrine of strict construction is applied to preserve the rights of those against whom the statutory remedy is directed, not as a pitfall against those who in good faith pursue the statutory course. (United Cork Cos. v. Volland (1937), 365 Ill. 564, 572, 7 N.E.2d 301, 305.) The Mobile Home Landlord and Tenant Act is of relatively recent origin. The parties have cited no authority directly pertinent to the issue of what is a sufficient notice under section 22 of that act, and we are aware of none. However, defendants have cited an opinion construing nearly identical language in a statute addressing a similar topic.

In Westerman v. Gilmore (1958), 17 Ill. App. 2d 455, 150 N.E.2d 660, the court held a notice to terminate a lease to be insufficient under section 8 of “[A]n Act to revise the law in relation to landlord and tenant.” (Ill. Rev. Stat. 1955, ch. 80, par. 8.) Section 8 provided as follows:

“That a landlord or his agent may, any time after rent is due, demand payment thereof and notify the tenant, in writing, that unless payment is made within a time mentioned in such notice, not less than five days after service thereof, the lease will be terminated.”

Section 8 further provided that if the tenant shall not, within the time mentioned in such notice, pay the rent due, the landlord may consider the lease ended and sue for possession or maintain ejectment and claim for rent without further notice or demand.

Section 222 of the Mobile Home Landlord and Tenant Act (Ill. Rev. Stat. 1981, ch. 80, par. 222) provides in pertinent part:

“A park owner may, any time rent is overdue, notify the tenant in writing that unless payment is made within the time specified in the notice, not less than 5 days after receipt thereof, the lease will be terminated.”

Section 222 further provides that if the tenant remains in default, the park owner may institute an action for possession, rent due and any damages.

In Westerman v. Gilmore, the notice given was in pertinent part as follows:

“ ‘The undersigned landlords hereby notify you and each of you as Tenants that they have, because of default in the payment of rent, elected to determine your lease bearing date, to-wit: the 11th day of May, A.D. 1954, and tenancy of the premises occupied by you and each of you and more particularly described as follows, to-wit:
(description omitted)
You and each of you above named are hereby notified to vacate the said premises on or prior to November 1, 1956.’ ” (17 Ill. App. 2d 455, 457-58, 150 N.E.2d 660, 661.)

The court in Westerman v. Gilmore found this notice to be insufficient as to section 8 because the notice required under section 8 “must include a demand for payment of rent within a certain time.” 17 Ill. App. 2d 455, 459,150 N.E.2d 660, 662.

While the statutory provision in the case at bar is not the same, the requirements of both sections are identical — the tenant must be given an opportunity to pay the delinquent rent before the lease may be terminated. We find the rationale of Westerman v. Gilmore to be persuasive and conclude that the instant notices were fatally defective for failure to inform the tenants that their leases would be terminated unless delinquent rental charges were paid. Accordingly, plaintiff’s complaints should have been dismissed.

Plaintiff concedes that the instant notices are “inartfully drawn” but argues that defendants admitted that they owed rent and that it was “obvious” that defendants would not have paid their rent even if given a five-day notice to do so. This contention ignores the plain language of the statute, i.e., that the park owner must give notice that the lease “will be terminated” unless overdue rent is paid on a specific date, not less than five days after receipt of such notice.

Defendants also appeal from the denial of their counterclaims in which each sought: (1) judgment in an amount equal to all rent and security deposits already paid to plaintiff and (2) an injunction requiring plaintiff to make “the necessary repairs” to the mobile homes in question. Plaintiff has never, so far as our examination of the record and briefs reveals, argued that the substantial defects alleged by defendants do not exist. Instead, plaintiff asserts that some or all of the defects were caused or permitted by defendants. We find no evidence of record to support that view. In this regard, the manager of the mobile court, Leona Agers, testified that she had not been inside either trailer. Accordingly, the trial court should not have denied the counterclaims which sought damages in the nature of a set-off against sums already paid by defendants to plaintiff. Parenthetically, we note that no question is presented in this appeal regarding unpaid rent alleged to be owed by defendants to plaintiff, or any possible set-off therefrom, because the judgment of the trial court was that plaintiff was entitled to possession and attorney fees and costs only; plaintiff has not appealed the judgment of the trial court refusing to award damages for unpaid rent.

Accordingly, we remand this cause so that the trial court may determine the amount of set-off defendants are entitled to, if any, against the sums defendants have already paid to plaintiff as of the filing of plaintiff’s complaints.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

HARRISON, P.J., and WELCH, J., concur.


text:
    RALPH E. RAMER, Plaintiff-Appellant, v. PAUL M. STORMENT, JR., Defendant-Appellee.
    Fifth District
    No. 83 — 2
    Opinion filed October 25, 1983.

      Michael P. Bastían, of Clayton, Missouri, for appellant.
    Storment and Read, of Belleville (P. Michael Read, of counsel), for appel-lee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Alleging that defendant fraudulently induced plaintiff to convey his interest in certain real property, plaintiff commenced this action with a demand for a jury trial in the circuit court of St. Clair County. The court granted defendant’s motion to dismiss on the ground that plaintiff had no standing to maintain the action since, at the time of the conveyance, plaintiff possessed no transferable interest in the property due to plaintiff’s previous default on a contract for deed. From the order granting the motion, plaintiff appeals. We conclude that the issue of whether plaintiff possessed a transferable interest presents a material genuine disputed question of fact which the trial court could not properly decide under section 2 — 619(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 619(c)), reverse the judgment, and remand the cause.

On April 17, 1975, plaintiff Ralph Ramer entered into a contract to purchase a 79-acre farm in St. Clair County from James and Audrey Duncan. The terms of the contract dictated that $3,500 would be paid at the time the contract was executed, with the balance due in monthly installments of $300 plus 7% interest. An additional $1,500 was to be tendered every six months until the entire purchase price was paid. The contract contained a forfeiture clause, which read in part:

"And in case of the failure of said party of the second part [Ramer] either to make the payments of any part, or to perform any of the covenants hereby specified within sixty days after the same are due to be paid or performed, this contract shall, at the option of the party of the first part [the Duncans], cease and determine, and the party of the second part shall forfeit all payments made on this contract, and such payments shall be retained by the party of the first part in full satisfaction and in liquidation of all damages sustained by said first party, time being the essence of this contract ***.”

Plaintiff was notified by a letter from the Duncans’ attorney, dated September 8, 1980, that plaintiff was delinquent in his payments in the amount of $3,600. A similar letter dated July 14, 1981, advised plaintiff that he was delinquent in the amount of $2,700. Both letters stated that plaintiff’s failure to pay the arrearage would result in forfeiture proceedings. On September 1, 1981, the Duncans issued a demand for strict compliance, stating that plaintiff was delinquent in the amount of $3,000, and demanding payment within 30 days, after which the Duncans would insist upon strict compliance with all provisions of the sale contract. The demand further stated that plaintiff’s failure to make the delinquent payments would result in a proceeding under “An Act in regard to forceable entry and detainer” (Ill. Rev. Stat. 1981, ch. 57, par. 1 et seq., now Ill. Rev. Stat. 1981, ch. 110, par. 9 — 101 et seq.) for possession of the premises. A second demand for strict compliance was issued by the Duncans on December 16, 1981, identical to the first except in the amount of the claimed arrearage, which had decreased to $2,400.

On January 21, 1982, the Duncans issued a notice of forfeiture, declaring their right to retain all payments made on the contract and reenter the premises. At an unspecified date later in the same month, Sherry Ramer, plaintiff’s wife, attempted to cure the default by tendering $2,700 to the Duncans’ attorney, who refused to accept payment.

Several days before the notice of forfeiture was issued, plaintiff was arrested on a criminal charge and confined in jail. Defendant, acting as plaintiff’s counsel, suggested that plaintiff sell the farm in order to obtain money for bail. While the precise terms of the subsequent agreement between plaintiff and defendant are subject to dispute, it would seem that defendant agreed to advance bail money for plaintiff, anticipating the sale of the farm for a value high enough to pay the arrearage on the contract for deed and also cover defendant’s fee. Thereafter, plaintiff and his wife signed two documents. An “employment contract” signed by the Ramers quitclaimed their interest in the farm to defendant in consideration of defendant’s services as attorney. A second instrument assigned to defendant the Ha-mers’ interest in the contract for deed in consideration of $5,000. (Neither document, as it appears in the record, bears a date.)

On April 5, 1982, the Duncans executed a warranty deed conveying the farm to defendant. Plaintiff commenced this action on June 7, 1982. The order granting defendant’s motion to dismiss was issued on September 24,1982.

The test to be applied in determining whether a motion to dismiss should be granted is set forth in section 2 — 619(c) of the Civil Practice Act:

“If, upon the hearing of the motion, the opposite party presents affidavits or other proof denying the facts alleged or establishing obviating grounds of defect, the court may hear and determine the same and may grant or deny the motion. If a material and genuine disputed question of fact is raised the court may decide the motion upon the affidavits and evidence offered by the parties, or may deny the motion without prejudice to the right to raise the subject matter of the motion by answer and shall so deny if the action is one in which a party is entitled to a trial by jury and a jury demand has been filed by the opposite party in apt time.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(c).

The question for our determination, then, is whether the record presents any genuine disputed question of fact regarding plaintiff’s assignable interest in the property at the time it was transferred to defendant and, if so, whether it was appropriate for the trial court to decide the question.

It is well established that a court will enforce a contractual right to forfeiture, but only where such a right is clear and unequivocal, and injustice will not result. (Aden v. Alwardt (1979), 76 Ill. App. 3d 54, 59, 394 N.E.2d 716, 719.) In determining the enforceability of a forfeiture pursuant to a contract for deed, the court must balance the equities on a case-by-case basis, considering such principal factors as whether there has been prior acceptance of late payments; whether, assuming such acceptance, the buyer has been given reasonable warning that the seller will insist on prompt payment in the future; whether there has been a prior default; whether substantial payment has been made on the whole contract; whether the buyer has substantially improved the property; and whether there has been a mere “delay,” as opposed to a “suspension” of payments. 76 Ill. App. 3d 54, 59.

Thus, the question of plaintiff’s standing is dependent upon the question of plaintiff’s interest in the property at the time plaintiff signed the instruments conveying the property to defendant, and this question is, in turn, dependent upon the question of whether there had been an actual forfeiture pursuant to plaintiff’s contract for deed. While a notice of forfeiture had been issued by the Dun-cans, the enforceability of the Duncans’ claim was contingent upon multiple issues of fact. We cannot accept the view that these issues involve matters so self-evident that no material and genuine disputed question of fact is raised.

When a material and genuine question of fact is raised, the court must, under section 2 — 619(c), deny the motion to dismiss if the case is one in which plaintiff is entitled to a jury trial and has requested the same in a timely manner. If the plaintiff is not entitled to a jury trial, the court may properly decide the question of fact only by resorting either to the record or to a matter so conclusive that a plaintiff cannot deny it. (Stanley v. Chastek (1962), 34 Ill. App. 2d 220, 229, 180 N.E.2d 512, 517.) Since plaintiff requested a jury trial by making a jury demand on the face of the complaint in the case sub judice, it would appear that the trial court should have denied the motion to dismiss. Even if plaintiff’s substantive claim in the instant case does not entitle him to a jury trial, the court is still obliged to deny defendant’s motion to dismiss. To the extent that the principal factors which would determine the validity of the Duncans’ forfeiture claim are addressed in the documents of record, the evidence is far too inconclusive to allow disposition of the question. While it is implicit in the information of record that late payments were accepted by the Duncans, the number and significance of these payments cannot be determined. The matter of reasonable notice, being essentially linked to the issue surrounding the acceptance of late payments, is similarly obscured. Other factors apparent from the record argue against enforceability of the forfeiture claim. Although the record does not state the precise amount paid by plaintiff on the contract, it is nevertheless apparent that substantial payment had been made in the course of six years. It is alleged in the affidavit of Sherry Ramer, and uncontroverted elsewhere in the record, the plaintiff “had made many improvements on the farm since he bought it in 1975.”

The contention that plaintiff possessed no assignable interest in the farm after the notice of forfeiture is undermined by yet another factor. The Duncans had not, in accord with the terms of their demand for strict compliance, proceeded to retake possession of the premises under the Forceable Entry and Detainer Act (Ill. Rev. Stat. 1981, ch. 110,par. 9 — 101 et seq.) and, even had they done so, plaintiff would have been entitled to cure the default following a judgment for the Duncans. Section 9 — 110 of the Act allows the court to stay for 60 days the enforcement of a judgment for a seller in an action for breach of contract for the sale of real property, and requires the court to grant a stay of at least 60 days when, as in the instant case, the seller has granted previous extensions to pay installments under the contract. The court is directed to stay for 180 days judgment for a seller when, as appears to have been the situation in the instant case, the amount unpaid on the purchase contract is less than 75% of the original price. During such a stay, the buyer may cure the default and move to vacate the judgment for the seller. Thus, the argument that plaintiff, as a matter of law, possessed no assignable interest in the property following the notice of forfeiture is, to our mind, sophistic, when we consider that, first, there was no judgment of forfeiture entered prior to the transaction with defendant and, second, plaintiff’s wife was ready and willing to exercise her statutory right and eradicate the effect of such a judgment had it in fact existed. Indeed, the more compelling implication would seem to be that an assignable interest should be presumed in the instant case, since there existed no judgment for possession and no running of the statutory period within which such a default could be cured. In any event, the record in the instant case does not adequately set forth the facts essential to a determination of plaintiff’s standing. We therefore conclude that the circuit court erred in granting defendant’s motion to dismiss under section 2 — 619(c). The judgment is reversed and the cause is remanded.

Reversed and remanded.

JONES and KASSERMAN, JJ., concur.


author: JUSTICE JONES JUSTICE EARNS,

text:
    LA SALLE NATIONAL BANK, Trustee, Plaintiff-Appellee, v. ROBERT L. GRAHAM, Defendant-Appellant.
    Fifth District
    No. 83—46
    Opinion filed November 8, 1983.
    KARNS, J., specially concurring.
    Terry H. Camber, of Mt. Vernon, for appellant.
    Howard & Howard, of Mt. Vernon (G. W. Howard III, of counsel), for appellee.
   JUSTICE JONES

delivered the opinion of the court:

The defendant, Robert L. Graham, appeals from the trial court’s grant of summary judgment in favor of the plaintiff, La Salle National Bank, in the plaintiff’s forcible entry and detainer action against the defendant. The defendant is lessee, and the plaintiff lessor, of certain premises in the shopping center known as Times Square Mall in Mt. Vernon, Illinois. The sole issue upon appeal is whether summary judgment was proper where the record showed that the defendant-lessee failed to give written notice of his election to renew his lease within the time specified in the parties’ lease agreement. We affirm.

The lease in question was for a period of five years, beginning October 18, 1977, and ending October 18, 1982. By terms of the parties’ lease agreement, the defendant-lessee was given three options to renew the primary term of the lease for a period of five years each. The lease agreement provided:

“Such privilege and option shall be exercised by the tenant by giving written notice to the landlord and mailing same to the landlord *** at least six (6) months prior to expiration of any term or extended term of this lease.”

The defendant alleged, in his counteraffidavit filed in response to the plaintiff’s motion for summary judgment, that prior to six months before the expiration of the original lease, he orally notified the plaintiff’s agent of his election to exercise the renewal option contained in the lease. At that time, the defendant stated, he believed that his oral notification of his election would be conveyed to the plaintiff’s home office and that the plaintiff would then provide the defendant with a written document to sign, stating his election to exercise his renewal option in writing. When the defendant did not receive any communication from the plaintiff, he gave the plaintiff written notice of his intent in a letter dated May 18, 1982. The plaintiff responded to these allegations by denying that the defendant orally notified the plaintiff’s agent of his election to renew his lease prior to April 18, 1982.

A hearing was held on the plaintiff’s motion for summary judgment, and the court, upon consideration of the pleadings and affidavits, granted the plaintiff’s motion for summary judgment in the forcible entry and detainer action.

On appeal from this judgment, the defendant contends that summary judgment was improper where a material issue of fact existed as to whether the defendant exercised his option to renew by giving proper written notice to the plaintiff. We find no basis for this contention as it is undisputed that the defendant did not notify the plaintiff in writing of his election to renew until May 18, 1982, one month after the time specified in the lease.

As a general rule in Illinois, an option to renew or extend a lease must be exercised in accordance with the agreement of the parties. (American National Bank & Trust Co. v. Lembessis (1969), 116 Ill. App. 2d 5, 253 N.E.2d 126; see 24 Ill. L. & Prac. Landlord and Tenant sec. 123 (1980).) Where the only condition of such a right to renew is that it be exercised within the time specified by the parties, a court will strictly construe the time requirement and enforce the agreement of the parties. Dikeman v. Sunday Creek Coal Co. (1900), 184 Ill. 546, 56 N.E. 864; Fuchs v. Peterson (1925), 315 Ill. 370, 146 N.E.556.

In Dikeman v. Sunday Creek Coal Co., the court stated that, notwithstanding the equitable rule that time is not necessarily the essence of a contract,

“[pjarties have a right *** to make their own contracts, and if they intend that time shall be of the essence of the contract, either by the express form of their agreement or because the subject matter makes it so, a court of equity will treat it as of the essence and hold the parties to their agreement.” (184 Ill. 546, 550-51, 56 N.E. 864, 865.)

In Dikeman, as in the instant case, the right to renew was “a privilege given to the lessee without any corresponding right or privilege of the lessor, and the only stipulation was that the right should be exercised at a certain time.” (184 Ill. 546, 551, 56 N.E. 864, 865.) The court held, therefore, that the parties intended notice to be given by the time stipulated as a condition of renewal of the lease and that the lease expired by its own terms because it was not renewed at the fixed time.

Similarly, in the instant case, where the record reveals no circumstances which would invoke the court’s equity powers (cf. Linn Corp. v. LaSalle National Bank (1981), 98 Ill. App. 3d 480, 424 N.E.2d 876 (strict compliance with notice requirement excused in view of equities of the situation)), the defendant lost his right to renew his lease when he failed to provide written notice to the plaintiff in the time specified in the lease agreement. There was no allegation by the defendant that this failure was due to anything other than his own negligence, and while he stated that he “believed” the plaintiff would provide him with a written document to sign, he did not indicate that this belief was based on any representation by the plaintiff which would constitute a waiver of the written notice requirement (see Fuchs v. Peterson). Thus, in the absence of any issue of material fact, the trial court correctly found for the plaintiff as a matter of law, and we affirm its grant of summary judgment.

Affirmed.

HARRISON, P.J., concurs.

JUSTICE EARNS,

concurring:

I concur in the decision of the court only because the rule in Illinois is well established that an option to renew a lease must be exercised in accordance with the precise agreement of the lessor and lessee. I believe the rule to be an unreasonable one where the lease in question requires six months written notice prior to the expiration of the primary term, as here, and when it is contended that the lessee gave oral notice of renewal prior to the six-month period.

It seems to me that reasonable notice under the circumstances of each case would be a more equitable rule and that under the facts alleged here, a factual question of the reasonableness of the notice given by the lessee is presented. I would hope that the supreme court would review the apparent rule of strict compliance stated in cases such as Dikeman v. Sunday Creek Coal Co. (1900), 184 Ill. 546, 56 N.E. 863.