author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE GRIGSBY, Defendant-Appellant.
    First District (2nd Division)
    No. 80—3057
    Opinion filed December 14, 1982.

      James J. Doherty, Public Defender, of Chicago (Donna Hickstein-Foley, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Richard B. Levy, and Daniel E. Jordan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Defendant George Grigsby was charged by information with 10 counts of armed robbery and eight counts of unlawful restraint. On October 30, 1980, a jury found defendant guilty of two counts of armed robbery and three counts of unlawful restraint. He was sentenced to the Illinois Department of Corrections for 16 years on each of the armed robbery convictions and three years on one conviction of unlawful restraint; all terms were to run concurrently. The trial court vacated the two remaining convictions of unlawful restraint.

Defendant appeals and contends that the trial court improperly denied his motion to suppress evidence allegedly derived from an illegal search and an illegal detention. Defendant also contends that he was denied a fair trial when the prosecutor made allegedly prejudicial comments during closing arguments. For the reasons hereinafter stated, we affirm.

The following is a summary of the significant facts derived from both the trial and the suppression hearing.

April 17, 1980, at approximately 10 a.m.:

Two men, one of whom was identified at trial as defendant, entered and robbed a liquor store at 1365 West Fullerton Avenue in Chicago. The owner, Frank Reed (Reed), gave defendant approximately $2350 and a gun which was kept in the store. After turning over the money and the gun, Reed was tied up by the robbers and made to lie down on the floor. The two robbers then picked Reed up and took him to his office in the rear of the store and tried to use his keys to open the safe. Being unsuccessful in opening the safe, the two robbers brought Reed back to the store area, put him down on the floor again and left the store.

Defendant’s mother and cousin testified that defendant never left his apartment on April 17 until two hours after the Fullerton store robbery took place. Defendant’s mother averred that defendant had a large amount of money in his possession on April 17.

Chicago Police Officer John Sullivan initially investigated the Fullerton store robbery immediately after the robbery’s occurrence. At the liquor store, Officer Sullivan was told that one of the robbers had a dark complexion. None of the descriptions received by Sullivan included a reference to pimples or a pockmarked face.

April 18,1980, at approximately 12:30 a.m.:

Chicago Police Officers Joseph Hartford (Hartford) and John Allanson were on patrol in the vicinity of Chicago Avenue and Sedgwick in Chicago when they observed a car with no license plates. They stopped the car which contained four occupants. Defendant got out of the car on the driver’s side but told Officer Hartford that he (defendant) was not the driver of the car. Defendant, however, did correctly identify himself. Officer Hartford then arrested defendant because he failed to produce a driver’s license, there were no State license plates on the car, and there was no city vehicle sticker on the car. After searching defendant for weapons, Officers Hartford and Allanson placed defendant in the back seat of the patrol car. Once the officers had searched the other occupants of the car, the officers then without his consent, searched defendant’s car and found approximately $600 in currency in the unlocked glove compartment. Defendant claimed the money belonged to him, so the officers gave him the money. Possession of the car was given to one of defendant’s passengers.

The officers then took defendant to the 18th District police station for processing on the traffic violations. Following normal procedures, Officer Hartford made an identification check on defendant to determine if there were any outstanding warrants against him. He discovered that there was a traffic warrant outstanding against defendant with a $3,000 bond.

Between 12:30 a.m. and 1:30 a.m. on April 18,1980:

Officer Hartford telephoned several “units” to see if there had been any recent robberies because he was suspicious about the large amount of money defendant claimed as his property. Officer Hartford called “Area 6 Robbery” and told Investigator Richard Cauble (Cauble) about the circumstances of defendant’s arrest. Hartford described defendant as a “Male Negro, about 160, 170 pounds” with “a pockmarked face.” He also told Investigator Cauble that when the police had checked out defendant’s statement as to the source of the money, the statement appeared to be false.

After his conversation with Officer Hartford, Investigator Cauble checked the “Major Robbery Board” for any recent robberies where the assailant matched defendant’s description. Noticing that there had been a robbery at 1365 West Fullerton and that defendant matched one of the robber’s description, i.e., “Male Negro; 25 to 30; 6 foot 1, 150 pounds; light complexion, pimples; mustache,” Cauble went to the 18th District police station for further investigation.

April 18,1980, at approximately 1:30 a.m.:

Officer Hartford asked his watch commander to fingerprint defendant for positive identification because defendant had no identification in his possession when arrested.

April 18,1980, at approximately 2 a.m.:

Investigator Cauble arrived at the 18th District police station. He placed “hold papers” on defendant to keep him for a lineup that would take place as soon as the witnesses to the Fullerton store robbery became available. Defendant was given his Miranda warnings and questioned by Cauble as to the source of the money found in the glove compartment. Defendant claimed that the money came from two back paychecks issued by his employer, the Lake Shore Racket Ball Club (Racket Ball Club) and a bond refund check. Investigator Cauble was informed by the police, however, that the manager of the Racket Ball Club denied knowing defendant. Defendant claimed that he worked the day shift and that the police had talked to the night manager, a person with whom defendant was not acquainted.

April 18,1980, at approximately 2:30 a.m.:

The results of the fingerprint check came in and positively identified defendant. Shortly thereafter he was also photographed by the police.

April 18,1980, at approximately 11:30 p.m.:

The occurrence witnesses to the Fullerton store robbery positively identified defendant at a lineup at the 18th District police station. Following the lineup, Investigator Cauble told defendant that he had been so identified. Defendant then allegedly told Cauble that he would admit his participation in the robbery but would not name his accomplice. Defendant never gave any written statements to the police.

Prior to trial, defendant filed a motion to suppress all testimony about the money found in the glove compartment. The trial court found that the police had probable cause to stop defendant’s car and denied the motion to suppress. The trial judge found it unusual that a person would place $600 in the glove compartment of a car having no license plates. Defendant also moved to suppress the lineup identification and the alleged oral statements made by him to Investigator Cauble on the ground that such evidence was obtained through defendant’s illegal detention by the police. The trial court noted that defendant’s description and that of the robbery suspect referred to a tall man, thinner than average, with a pockmarked face. The court concluded that these were characteristics which could give Cauble probable cause to detain defendant and to further investigate the robbery. The court, therefore, denied the motion to suppress the lineup identification and the alleged oral statements made by defendant to Investigator Cauble.

I

Defendant contends that his fourth amendment rights were violated by the seizure of his money from the. glove compartment. As a general rule, a warrantless search is invalid under the fourth amendment and the Illinois Constitution unless the search is reasonable and comes within one of the narrow exceptions to the warrant requirement (People v. Helm (1981), 89 Ill. 2d 34, 36, 431 N.E.2d 1033). The reasonableness of a search is determined by the facts of each case (People v. Seymour (1981), 84 Ill. 2d 24, 35, 416 N.E.2d 1070). The prosecution has the burden of proving that a warrantless search or seizure is reasonable and that one of the exceptions apply. People v. Eastin (1972), 8 Ill. App. 3d 512, 519, 289 N.E.2d 673.

The United States Supreme Court has held that “in the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” (United States v. Robinson (1973), 414 U.S. 218, 235, 38 L. Ed. 2d 427, 441, 94 S. Ct. 467, 477.) In the instant case the validity of defendant’s arrest appears to be uncontested on appeal. A search incident to a lawful custodial arrest extends to the person arrested and to the immediate surrounding area within his reach. Chimel v. California (1969), 395 U.S. 752, 763, 23 L. Ed. 2d 685, 694, 89 S. Ct. 2034, 2040.

Contrary to defendant’s assertions, we believe that New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, is controlling. In Belton, the United States Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (453 U.S. 454, 460, 69 L. Ed. 2d 768, 775, 101 S. Ct. 2860, 2864.) The court expressly included a search of any containers found within the passenger compartment because “if the passenger compartment is within the reach of the arrestee, so also will containers in it be within [the arrestee’s] reach.” (453 U.S. 454, 460, 69 L. Ed. 2d 768, 775, 101 S. Ct. 2860, 2864.) The court in Belton specifically included a glove compartment as one such container that may be searched. (453 U.S. 454, 460 n.4, 69 L. Ed. 2d 768, 775 n.4, 101 S. Ct. 2860, 2864 n.4.) In the case at bar, since defendant was lawfully arrested and his car was searched contemporaneously with the arrest, we find that the trial court did not err when it denied the motion to suppress evidence of the money in question.

II

Defendant contends that the police illegally detained him for 21 hours after he was positively identified and bond had been set on the traffic violations and the traffic warrants. In Dunaway v. New York (1979), 442 U.S. 200, 216, 60 L. Ed. 2d 824, 838, 99 S. Ct. 2248, 2258, the United States Supreme Court held that a person’s fourth amendment rights are violated when the police detain a suspect for custodial interrogation where there is no probable cause for that detention. In the instant case, defendant argues that an illegal detention occurred when the police, on a “mere suspicion,” held him after he had been processed on his traffic violations. Defendant also claims that his right to post bond ihad been violated since he had sufficient funds to post bond but was not allowed to do so. The defendant therefore contends that the trial court erred in denying his motion to suppress evidence of the lineup and the alleged confession because they were derived from an illegal detention.

In rebuttal, the State argues that Investigator Cauble had probable cause to detain defendant until the lineup occurred. Probable cause exists:

“when the facts and circumstances within the officer’s knowledge would lead a man of reasonable caution to believe that an offense has been committed and that the person apprehended has committed the offense. [Citations.] In determining whether probable cause existed, this court has emphasized that the totality of facts and circumstances known to the officer when the arrest was made must be considered.” (People v. Gabbard (1979), 78 Ill. 2d 88, 101, 398 N.E.2d 574 (Underwood, J., concurring in part and dissenting in part).)

In the instant case, it is critical to determine whether probable cause existed at 2 a.m. on April 18, 1980, because that is when Investigator Cauble decided to detain defendant until a lineup could be arranged.

At the time Cauble decided to detain defendant, Cauble had the following facts upon which to base probable cause. The police had stopped a car without license plates late at night (12:30 a.m.). Although defendant correctly identified himself, he got out of the car on the driver’s side but claimed he was not driving the car. Inside the glove compartment, the police found approximately $600 in currency, an unusual item to store in one’s glove compartment. Defendant’s explanation as to the source of the money appeared to be false. The police then decided to see if the defendant matched the description of any robbery suspects and found that he matched the height, weight and “pimples” description of a suspect in a robbery that took place less than 24 hours before; defendant is a tall, thin male with a pockmarked face.

The trial court’s decision on a motion to suppress will not be disturbed unless the decision is manifestly erroneous. (People v. Clay (1973), 55 Ill. 2d 501, 505, 304 N.E.2d 280.) Here, the description of the robbery suspect used by Investigator Cauble was not so general that it would apply to many people. Moreover, there is little likelihood that more than one person would not only match the description but would also be found in possession of a large amount of money from an unexplained source. While each fact may not have been in itself enough to establish probable cause, we conclude that the totality of all pertinent facts did provide the police with probable cause to detain defendant.

Ill

Finally, defendant contends that he was denied a fair trial when the prosecutor allegedly made prejudicial comments during closing argument. First, defendant contends that several remarks of the prosecutor implied that defendant was capable of murder and that if he was set free by the jury he might kill someone. One such remark objected to by defendant occurred when the prosecutor said:

“Now, [defense counsel] told you several times about the burden of proof, reasonable doubt. The Judge will instruct you as to that. It’s the same burden that is in every criminal case in this courtroom in this building and in every court building in this county and in this state and in this country for the past two hundred years. Every murderer, armed robber —
DEFENSE COUNSEL: Objection.
PROSECUTOR: — (Continuing) rapist, burglar and thief who is in the penitentiary has been convicted beyond a reason able doubt. There is nothing magical about it.
THE COURT: Overruled.” (Emphasis added.)

Defendant contends that these words implied to the jury that he was capable of murder, but the defendant appears to be taking the prosecutor’s comments out of context. We do not read these comments as suggesting that defendant was capable of murder; rather, the prosecutor was merely restating the standard of proof, which is permissible in a criminal case. People v. Smith (1981), 93 Ill. App. 3d 1133, 1139, 418 N.E.2d 172.

Defendant also alleges that the following remarks suggested he was capable of murder:

“PROSECUTOR: We are talking about letting that man walk out the front door. That’s what [defense counsel] wants you to do, let him walk out that front door and God knows what he will do next.
* * *
PROSECUTOR: He gets his money by sticking shotguns in the faces of people. That’s how he does it. And if they don’t give up the money, God knows what happens.”

However, these comments appear to be directed toward the seriousness of the offense. Such comments by the prosecutor are not improper if they refer to the evidence and the inferences drawn therefrom. People v. Trimble (1975), 27 Ill. App. 3d 353, 360, 326 N.E.2d 437.

Defendant further contends that the prosecutor implied to the jury that defendant was capable of murder when the prosecutor stated:

“*** He decided Frank Reed wasn’t moving fast enough, wasn’t getting the money fast enough or Allen Michalski didn’t bend down the right way and pulled the trigger and blew their heads off like he said he would —
THE COURT: Objection sustained to that. There is no need for that speculation.
DEFENSE COUNSEL: Ask it be stricken.”

Our review of the record confirms that defendant did not, in fact, make the entire statement attributed to him by the prosecutor. The prosecutor’s remark, however, was an isolated one which the trial judge promptly cured by sustaining the objection. The prompt sustaining of an objection to an improper remark and instructing the jury to disregard such a remark will usually cure any prejudice to the defendant which may result. (People v. Baptist (1979), 76 Ill. 2d 19, 30, 389 N.E.2d 1200.) Therefore, the defendant does not appear to have been substantially prejudiced by this remark.

Defendant also contends that the prosecutor implied that the State’s witnesses were more credible than defendant’s witnesses when the prosecutor speculated as to why Investigator Cauble would risk his 13 year career by “lying” just to “get” defendant or that an assistant State’s Attorney would go through college and law school just to join a conspiracy against the defendant. Defendant argues that this implication that his witnesses were less credible than the State’s witnesses created an unfair advantage for the State which was so. prejudicial that defendant was denied a fair trial. (People v. Valdery (1978), 65 Ill. App. 3d 375, 378, 381 N.E.2d 1217.) We do not read these comments as suggesting that the State’s witnesses are more credible than defendant’s witnesses. Rather, these comments appear designed to support the prosecutor’s arguments as to why the State’s witnesses would have no motive to lie.

Finally, defendant contends that the prosecutor misstated the evidence and improperly commented on defendant’s failure to testify:

“PROSECUTOR: *** [Tjhere is no reason for any witness in this case on behalf of the People to lie. They don’t even know him. They saw him for half an hour and they saw him with a shotgun.
The evidence in this case came from the witness stand and what you heard, what you heard except for a bogus alibi —
DEFENSE COUNSEL: Objection.
PROSECUTOR: — (Continuing) which is rebutted.
THE COURT: Overruled.
PROSECUTOR: Uncontradicted.” (Emphasis added.)

In People v. Escobar (1979), 77 Ill. App. 3d 169, 178, 395 N.E.2d 1028, the appellate court held that “[wjhere the State’s case is not in fact unchallenged, the suggestion that it is becomes suspect; it is not ‘an accurate summary of the evidence’ [citation]. The only reasonable point to the comment is the defendant’s silence.” (Emphasis added.) In the instant case, defendant argues that the prosecutor’s reference to the State’s case as “uncontradicted” and “unrebutted” is inaccurate. Evidence was, in fact, offered to contradict the State’s case. Defendant claims that the prosecutor’s unwarranted comment improperly draws attention to his failure to testify.

We consider the case at bar distinguishable from Escobar. In Escobar, the prosecutor flatly characterized the State’s evidence as uncontroverted when, in fact, there was contrary evidence presented by the defendant. Here, however, the prosecutor stated that the State’s evidence was “uncontroverted” and “unrebutted” except for a “bogus alibi.” Thus, the prosecutor did acknowledge that there was evidence contrary to the State’s case but characterized such evidence as not credible. In sum, the prosecutor’s closing argument does not appear to have substantially prejudiced defendant and, in our opinion, he was not denied a fair trial.

For the foregoing reasons, the defendant’s convictions are affirmed.

Affirmed.

DOWNING and HARTMAN, JJ., concur.

      Although the record on appeal does not reflect who in fact owned the car, at trial both the State and defendant treated defendant as the owner of the car.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    BOBBY D. KREIS et al., Plaintiffs-Appellants, v. SIDNEY R. OLSEN, Recorder of Deeds and ex-officio Registrar of Titles of Cook County, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 81—1125
    Opinion filed December 14, 1982.
    Donald P. Smith and Scott, Fulkerson & Scott, both of Chicago, for appellants.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Susan Condon, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

Plaintiffs, purchasers of real estate registered under the Torrens system, brought this class action in order to recover money damages from the recorder of deeds and Cook County for failing to issue mortgagee’s duplicate certificates of title in a timely manner. Defendants’ motion to dismiss for failure to state a cause of action was granted and the complaint was dismissed with prejudice.

On appeal, plaintiffs argue that as their complaint states a cause of action, the trial court erred in dismissing their action.

On December 29, 1980, plaintiffs Bobby D. Kreis and Susan M. Kreis, individually and on behalf of all others similarly situated, filed a class action suit against Sidney R. Olsen, Recorder of Deeds and Ex-officio Registrar of Titles and the County of Cook, a “Body Politic and Corporate.” The complaint stated that section 60 of the Torrens Act imposes on defendants a duty to issue, upon request of the mortgagee or trustee of the property, a duplicate copy of the certificate of title known as the “Mortgagee’s Duplicate Certificate.” (Ill. Rev. Stat. 1979, ch. 30, par. 104.) Plaintiffs alleged that beginning as early as November 1977 and continuing to the present, defendants have failed to issue these duplicate certificates for periods of time in excess of 12 months. Plaintiffs alleged that because of this delay, they incurred the expense of purchasing title insurance policies which their mortgagees required despite the title guarantees of the Torrens Act. Plaintiffs requested that a judgment be entered in their favor for the amount of damages they sustained. Defendants filed a section 45 motion to dismiss (Ill. Rev. Stat. 1979, ch. 110, par. 45, now section 2— 615 of the Code of Civil Procedure effective July 1, 1982), which the trial court granted with prejudice.

The trial court held that plaintiffs could not prevail under the allegations contained in their complaint because: (i) the statute provides for an administrative remedy which plaintiffs are restricted to; (ii) the proper procedure to force a public official to perform its duty is to seek a writ of mandamus; and (iii) plaintiffs did not properly allege that they performed the conditions precedent of making a request for the certificate and paying the statutory fee.

I

The pertinent sections of the Torrens Act which concern available remedies for “[a]ny person sustaining loss or damage through any omission, mistake or misfeasance of the registrar” are sections 101 and 102. (Ill. Rev. Stat. 1979, ch. 30, pars. 138, 139.) The prior statute, not in effect at the time this suit was filed, provided that an aggrieved person “shall have a right of action for the damages thus sustained against the county in which such land shall be registered, and may file a claim with the county board, or bring a civil action against the county in which the land is situated ***.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 30, par. 138.) The statute now provides (amended effective January 1, 1980) that the injured party “shall have a right of action for the damages thus sustained against the county in which such land shall be registered, and may file a claim with the county board, in which the land is situated ***.” (Ill. Rev. Stat. 1979, ch. 30, par. 138.) The subsequent sections which set out the procedural steps in filing a claim correspondingly delete language referring to a judicial cause of action against the county. The following phrase in section 102 of the Act was omitted: “The rejection of any claim so presented [to the county board] shall be no bar to the bringing of suit for the same in the circuit court.” 111. Rev. Stat. 1977, ch. 30, par. 139.

By amending the statute, the legislature demonstrated an intent to eliminate the judicial right of action against the county and to only allow an administrative avenue of relief. A statutory amendment creates a rebuttable presumption that it was intended to change the law as it previously existed. (Scribner v. Sachs (1960), 18 Ill. 2d 400, 411, 164 N.E.2d 481.) “Where, as a result of an amendment or revision, words are stricken from the statute, it must be concluded that the legislature deliberately intended to change the law.” (People v. Delay (1979), 70 Ill. App. 3d 712, 715, 388 N.E.2d 1316, cert. denied (1980), 446 U.S. 928, 64 L. Ed. 2d 281, 100 S. Ct. 1865.) In this case, a comparison of the previous statute and the amended statute evidences an obvious attempt by the legislature to eliminate dual remedies and instead allow one for only an administrative review.

Plaintiffs contend that section 101 of the Torrens Act provides alternative remedies. They interpret the phrase “shall have a right of action against the county in which such land shall be registered” as establishing a judicial remedy in addition to the administrative one. Plaintiffs draw an analogy to other statutes which provide both judicial and administrative remedies. This analogy is not persuasive, as the question is not whether the legislature has the authority to provide for dual remedies, which it clearly has, but whether it chose to do so in this instance. As defendants note, the Torrens Act, which created a system of land registration and statutes providing for remedies unknown at common law, must be strictly construed. Schmidt v. Anderson (1912), 253 Ill. 29, 33, 97 N.E. 291.

Where the legislature created a specific statutory remedy, as they did here, the persons aggrieved must first exhaust that remedy before applying for judicial relief. (Steward v. Allstate Insurance Co. (1980), 92 Ill. App. 3d 637, 641, 415 N.E.2d 1206.) Plaintiffs have not argued that the administrative remedy is inadequate, which is an exception to the exhaustion doctrine. (92 Ill. App. 3d 637, 641.) Therefore, they are restricted to seeking administrative relief and the trial court properly dismissed their complaint.

II

Plaintiffs argue that the trial court erroneously concluded that the appropriate remedy was a writ of mandamus, and that failure to seek this remedy barred their claim. The fact that an alternative remedy suggested by the trial court is not, as plaintiffs contend and defendants agree, appropriate does not invalidate the trial court’s decision. Plaintiffs also urge that the trial court was incorrect in basing its dismissal of the complaint upon the additional ground that plaintiffs had not sufficiently alleged that the condition precedents to defendants’ duty had been met. However, since the complaint was properly dismissed because of the administrative remedy provision in the statute, we need not address the issue of the sufficiency of the complaint.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

STAMOS, P.J., and HARTMAN, J., concur.

      The Torrens system for registration of land titles (Ill. Rev. Stat. 1979, ch. 30, par. 45 et seq.) is to provide a system of registration so that anyone may ascertain by inspection of the register the condition of title and who may convey such title.

      Ill Rev. Stat. 1979, ch. 110, par. 264 et seq., effective July 1, 1982, is now found at Ill. Rev. Stat. 1981, ch. 110, par. 3—101 et seq.


author: PRESIDING JUSTICE STAMOS

text:
    EFFIE WATERS et al., Plaintiffs-Appellees, v. THE CITY OF CHICAGO, et al., Defendants.—(Amelia Andrejewski et al., Plaintiffs, v. THE CITY OF CHICAGO, et al., Defendants.—Dorothy Epstein et al., Objectors-Appellants.)
    First District (2nd Division)
    No. 81—2855
    Opinion filed December 14, 1982.
    Rehearing denied January 11, 1983.

      Arvey, Hodes, Costello & Burman, Asher, Goodstein & Pavalon, Cooney and Stenn, and Tully, Roddy, Weinstein & Boyle, all of Chicago (Nathan M. Cohen, Stephen J. Feinberg, Eugene I. Pavalon, Patrick J. O’Connor, and Joseph V. Roddy, of counsel), for appellants Dorothy Epstein, Barbara Nash Wilson, Clemen Sherman Williams, and Cooney and Stenn.
    Judge, Kurnik & Knight, Ltd., and Larry D. Drury, Ltd., both of Chicago (Jay S. Judge, William W. Kurnik, Byron D. Knight, Gregory Lawton, and Larry Drury, of counsel), for appellees Effie Waters and John R. Nebel, Jr., et al.

   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

A plaintiff class comprised of all tort judgment creditors of defendant city of Chicago who hold judgments that were entered prior to November 16, 1979, and who had not assigned their judgments as of that date, brought an action seeking relief from the city’s practice of postponing the payment of tort judgments of over $1,000 for an extended period of time. A settlement of the action was approved by the trial court on October 20, 1981. A group of class members who filed objections to the settlement in the trial court appeals, contending that: (1) the notice to the class of the proposed settlement was defective; (2) the award of fees to the class attorneys was an abuse of the trial court’s discretion; and (3) the trial court erred in denying the objector’s motion to intervene and in dismissing a separate complaint brought by certain objectors.

This is the third time that this matter has been before this court. In 1975, plaintiff John Nebel filed a class action which sought relief from the city’s practice of postponing the payment of tort judgments of over $1,000 for extended periods of time. The trial court dismissed the complaint, and we reversed. (Nebel v. City of Chicago (1977), 53 Ill. App. 3d 890, 369 N.E.2d 74.) On remand, the action was consolidated with plaintiff Effie Waters’ similar class action. The trial court approved a settlement of the cause over the objections of several class members and objectors appealed. In Waters v. City of Chicago (1981), 95 Ill. App. 3d 919, 420 N.E.2d 599, we vacated the settlement agreement, holding that the assessment of 1.3% of all judgments held by class members for payment of attorney and trustee fees was unfair to those class members who held judgments for less than $1,000. Those plaintiffs received no benefit from the acceleration of payments which resulted from the settlement because the city’s policy prior to the agreement had been to pay judgments of $1,000 or less as soon as possible after they were presented for payment, and payment of those judgments would usually be made in the same fiscal year as the entry of the judgment. Holders of larger judgments had had to wait up to 52 months to obtain payment of their judgments. We also expressed doubts as to the fairness of the settlement as it applied to holders of judgments which were nearly 52 months old, since the holders of those judgments were informed of their right to opt out of the class, and given instructions on how to do so, but were not informed of the consequences attaching to a decision to opt out of or remain included in the class. We regarded this deficiency of notice as significant because holders of older judgments would have been paid just as quickly in the normal course of payment, and the priority of payment given to class members under the settlement would have given them no benefit in return for the deduction of 1.3% of their judgments for payment of attorney fees. (95 111. App. 3d 919, 925 n.5.) We also stated that the trial court made insufficient findings of fact in its award of $100,000 in fees to both of the class attorneys in that the court failed to give careful scrutiny to the hourly fee requests of the attorneys and made no findings of fact to justify the application of a multiplier to those hourly totals. 95 111. App. 3d 919, 926-27.

Shortly after this court’s mandate was filed, proceedings were instituted in the trial court to gain that court’s approval of a modified settlement of this case. The modified settlement was in essentially the same form as the vacated settlement. The class was defined as “all unpaid tort judgment creditors as of November 16, 1979, of the defendant, City of Chicago, but the class shall exclude all persons who have sold or assigned their judgments as of November 16, 1979.” The proposed settlement also provided that no deductions for attorney or trustee fees would be assessed from judgments for less than $1,000.

On July 13, 1981, the trial court approved a notice to the class of the hearing on the modified settlement. This notice detailed the settlement and contained instructions on filing objections. The notice did not inform the class members of their right to opt out of the class.

On July 20, 1981, the court granted the city’s motion to dismiss the complaint of Amelia Andrejewski. That complaint was filed as a class action on behalf of members of the Waters class who had been paid their judgments less a 1.3% deduction for fees pursuant to the vacated settlement. The complaint sought a refund of the deductions.

In August 1981, the court received objections to the settlement from objectors here, and supplemental petitions for fees were filed by the plaintiff’s attorneys.

On October 20, 1981, the trial court entered its order approving the modified settlement. In that order the court recited findings of fact on the issue of attorney fees, approving hourly fee requests, or lodestar figures, of $53,700 for attorney Byron Knight and $57,200 for attorney Larry Drury. The court applied multipliers of 1.87 to the former figure and 1.75 to the latter. The total awards approved by the court were $100,419 to attorney Knight and $100,100 to- attorney Drury. The city was ordered to continue deducting 1.3% from all judgments over $1,000 payable to class members. That money was to be held in a settlement fund for the payment of attorney and trustee fees.

Objectors appeal from that order. During the pendency of this appeal, trustee Sheldon Garber’s seventh report was filed as a supplement to the record. That report indicates that at this time, all class members have been paid their judgments less deductions, and that virtually all those judgment creditors who opted out of the class have been paid the full amount of their judgments.

The threshold question in this case is whether, as plaintiffs contend, this case is moot because of the fact that all class members have received payment of their judgments. This question is easily answered because the issue in this case has never been the right of the class members to receive payment of their judgments, but rather the propriety of the terms of the settlement and the notice of settlement to the class. The class members have had 1.3% of their judgments deducted for the payment of attorney fees, and objectors contest the propriety of the settlement embodying that deduction. Therefore, a contention that all actual controversy between the parties has been resolved is meritless.

Objectors’ first contention on appeal is that the notice to the class of the proposed settlement was defective, and the settlement was therefore unfair, because class members were not apprised of the possible benefits to them that might result from opting out of the class.

In Waters, we held that the original settlement was unfair to class members holding judgments for $1,000 or less because the settlement did not benefit them and the notice failed to inform them that they would receive no benefit from remaining in the class. With regard to the notice, we stated that:

“This defect of notice also raises questions concerning the fairness of the settlement to absent class members holding judgments greater than $1000. While the notice adequately informed class members of their right to opt out, and provided clear instructions on the method of opting out, the notice did not reveal the consequences of opting out, and thus necessarily failed to give class members a basis for evaluating their two options. Even though the settlement gave most class members a quid pro quo (accelerated satisfaction in return for a 1.3% reduction), fairness might dictate that a class member’s decision to remain in the class be a fully informed one. In particular, creditors whose judgments were already 52 months old in February 1980 had no way of knowing that remaining in the class would be of no benefit. When one of the objectors’ attorneys pointed out this fact to the trial court, he was rebuffed.” 95 Ill. App. 3d 919, 925 n.5.

The notice of the modified settlement, which was approved by the trial court on July 13, 1981, contains no information concerning the right of the class members to opt out of the class. This notice ensures that any class member who chose to remain in the class because of the inadequacy of the information contained in the prior notice would remain bound by that choice.

Also germane to the ability of the class members to evaluate the benefits of participating in this action is the conspicuous lack of information in both settlement notices regarding the posture of the case of Evans v. City of Chicago (N.D. Ill. 1980), 522 F. Supp. 789, aff’d (7th Cir. 1982), 689 F.2d 1286. In that case, two classes of plaintiffs brought actions in the United States District Court for the Northern District of Illinois against the city raising constitutionally based challenges to the same practices as those complained of here. The group of judgment creditors affected by that action essentially includes all members of the class here except for those members of the Waters class who are assignees of judgments. On January 19, 1981, Judge Grady entered his final order in Evans, granting the plaintiff class a summary judgment and ordering the city to make immediate payment of all outstanding judgments, costs, and unwaived statutory interest owed to class members. Attorney fees were assessed against the city under 42 U.S.C. sec. 1988 (1976). Enforcement of that order was stayed pending appeal, and the order was affirmed on September 27, 1982, after the case had been briefed and argued twice before the Seventh Circuit Court of Appeals.

As a matter of hindsight, no member of the Waters class could have benefited from the final disposition of the Evans case because all class members here had received payment of their judgments by the time the judgment in Evans became enforceable. However, the class members here were never informed by the class attorneys that they might be members of the Evans class, nor were they informed of the possibility that the disposition of that case might entitle them to accelerated payment without a deduction for attorney fees.

As was noted in our prior opinion, a class action settlement must be “ ‘in the best interest of all those who will be affected by it.’ ” (Waters v. City of Chicago (1981), 95 Ill. App. 3d 919, 924, quoting People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 316, 335 N.E.2d 448.) The deficiencies in the notice in the instant case, particularly the absence of an opt-out provision and the failure to explain the alternative courses of action which were available to the class members, makes the modified settlement of this case unfair. Proper notice to class members is essential to their right to due process. (Cf. Miner v. Gillette Co. (1981), 87 Ill. 2d 7, 15, 428 N.E.2d 478, appeal dismissed (1982), 456 U.S. 914, 72 L. Ed. 2d 173, 102 S. Ct. 1767 (holding that the due process rights of class members who are not residents of the jurisdiction where the suit is brought are sufficiently protected by notice and adequate representation).) Sections 7(b)(2) and (3) of the Uniform Class Action Act specify that the inclusion of information in the notice regarding the possible financial consequences of participation in the class action and the right to opt out is a prerequisite to proper notice to the class. (See Ill. Ann. Stat., ch. 110, par. 57.4, Historical and Practice Notes, at 158 (Smith-Hurd Supp. 1982).) Although section 57.4 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.4, superseded without change of substance by section 2—803 of the Code of Civil Procedure) leaves the contents of the notice to the class to the discretion of the trial court, we hold that the approval of this notice, from which so much significant information is omitted, was an abuse of that discretion. The settlement which followed the defective notice therefore must be vacated.

Our vacation of the modified settlement raises a question regarding the propriety of any award of attorney fees on remand. As in our last disposition of this case, the vacation of the settlement would seem to effectively destroy the “success” and the “fund” elements which are required to support an award of attorney fees in a class action. (See 95 Ill. App. 3d 919, 926.) The last payments to class members by the city have been made, pursuant to the settlement, during the pendency of this appeal. If the “success” required to justify an award of attorney fees is regarded as prosecuting a case to a final disposition of the controversy by judgment, no such “success” is possible on remand, because the payment to the class members brought the original controversy to an end. In the strictest sense, the prior settlements of this case are of no effect, and the case can not be successfully concluded by plaintiff’s attorneys because the passage of time has ended the controversy.

However, the unusual circumstances presented by this case leads us to adopt a more flexible view of the “success” requirement. Although the two settlements of this case have been vacated, the city budgeted $9 million for the payment of outstanding tort judgments in the years 1980, 1981, and 1982 as required by the settlements. The class members received an acceleration in the payment of their judgments as a result. Therefore, the class attorneys have achieved some success by their prosecution of this action, and the fact that any order that could be entered on remand with regard to the plaintiff’s claims could only direct the city to do what it has already done should not preclude an award of attorney fees.

However, the fund which was originally contemplated as the source of attorney and trustees fees has vanished. That fund was the increased city appropriations for the years 1980, 1981, and 1982. Those funds, presumably, have been all but completely disbursed. The fund which must now be viewed as a source for a newly fashioned fee award is the settlement fund of 1.3% of the paid judgments which was collected by the city.

Objectors next contend that the awards to the two attorneys were improper in amount. Although the vacation of the settlement, as in Waters, makes it unnecessary to reach this argument, the manner in which the trial court fashioned the fee awards prompts us to afford the trial court specific guidance as to the amount of an appropriate award on remand.

In Waters we noted that the trial court erred in its award of fees in the first settlement of this case. The attorneys presented the trial court with petitions representing that their hourly rate charges for the work performed on behalf of the class were $49,326.66 for attorney Knight and $65,000 for attorney Drury. The trial court, without comment in the record, awarded each a fee of $100,000. We reviewed the requirements for fixing class action attorney fees set forth in Fiorito v. Jones (1978), 72 Ill. 2d 73, 89-93, 377 N.E.2d 1019:

“The trial court first considers the number of hours expended by the attorneys. After disallowing time spent that did not benefit the class, the trial court determines whether the hourly total is reasonable, and notes whether the time has been expended by law clerks, associates, or senior partners. The trial court then considers the complexity of the problem and the skill of the attorneys, and fixes an hourly rate of compensation. The hourly rate, multiplied by the allowable hours, is called the ‘lodestar computation,’ because it provides the point of orientation for determining the final fee award. (See Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp. (3d Cir. 1973), 487 E2d 161, 168.) The lodestar computation can then, at the discretion of the trial court, be adjusted by a multiplier. The application of a multiplier depends on two factors: the contingent nature of the class’ recovery (an unlikely recovery justifying an increased fee), and the quality of the benefit to the class. The supreme court in Fiorito specified that, if the trial court is to award fees greater than the lodestar computation, it should identify the factors that merit the increase, and state the value of the multiplier applied. 72 Ill. 2d 73, 93.” 95 Ill. App. 3d 919, 926.

This court then noted that the trial court erred in fixing the fee award by failing to scrutinize the hourly rate totals and to disallow hours spent that did not benefit the class and by failing to make and include in the record specific findings of facts which would justify the use of a multiplier.

In fixing the instant award of fees, the trial court made findings of fact concerning the allowable hours and hourly rates of the two attorneys. The court approved 716 hours at $75 per hour for attorney Knight and 572 hours at $100 per hour for attorney Drury. The resulting lodestar figures were $53,700 for attorney Knight and $57,200 for attorney Drury. The court applied multipliers of 1.87 to the former award and 1.75 to the latter, yielding total awards of $100,419 to attorney Knight and $100,100 to attorney Drury.

The trial court’s calculation of the lodestar figures disallowed time requests for the defense of the prior appeal of this case and for “estimated time to complete the litigation.” Both of these requests were from attorney Drury. However, the court did not disallow attorney time spent monitoring the progress of the Evans case. The benefit accruing to this class from the expenditure of that time is tenuous at best, especially in light of the benefits that some class members might have expected to receive had they been notified concerning the progress of that case. We do not, however, view the trial court’s calculation of the lodestar figure as an abuse of discretion.

We do find that the use of a multiplier in this case is an abuse of discretion. Under Fiorito, the lodestar figure may be adjusted to account for the “contingent nature of the undertaking and the benefits conferred upon the class.” 72 Ill. 2d 73, 91.

Here, there is no contingency as to the right of the class members to receive payment of their judgments. The only contingency involved in this case is to the right of the class members to receive an accelerated payment of those judgments. The contingent nature of the undertaking is examined in light of the probability of the plaintiff’s success at the time that the suit was filed. (Lurie v. Canadian Javelin Ltd. (1981), 92 Ill. App. 3d 15, 19, 415 N.E.2d 1055.) Therefore, the indications that appear in the record that the city was prepared to budget increased appropriations for the satisfaction of tort judgments prior to the beginning of any settlement negotiations cannot affect the evaluation of the contingent nature of the suit, and it must be concluded that the success of the plaintiff class was not at all certain at the time that the suit was commenced.

As has been previously noted, the benefit which accrued to the class as a result of this litigation is somewhat difficult to evaluate. Because the city’s proposed budget for 1980 contained the same appropriation for payment of judgments which was later required by the original and modified settlements, it is arguable that those class members who received payment or “moved up the list” of those to be paid in that year did not benefit from this suit. This inference applies to any acceleration received in 1980 even if it were assumed that the city would reduce appropriations back to their former levels in 1981 and 1982, the other years covered by the settlement.

Additionally, the trial court posited at 9% differential between the statutory rate of interest due the class members (6%) and the rate available on the open market (15%) in evaluating the value of the acceleration. The members of the class holding older judgments clearly received less benefit from this differential than those class members holding more recent judgments, simply because they received less acceleration of payment when the “time lag” in payment was compressed from 52 months to 28 months (the current estimated time for payment). The entire benefit to some class members was undoubtedly consumed by the 1.3% deduction for fees.

Although some members of the class received concrete benefits from the operation of the vacated settlements, some class members may have been actually disadvantaged by participation in the action. This possibility militates against the application of a multiplier, especially when viewed in light of the deficiencies of notice which made it impossible for those class members who were benefited least to evaluate the consequences of remaining in the class. We therefore find that the application of the multipliers in this case is an abuse of discretion because of the insubstantiality of the benefit to the class as a whole resulting from this action.

We note that the multipliers themselves are unusual, and raise a question regarding the factors which were considered by the trial court in fashioning them. In the original settlement, the court awarded $100,000 to each attorney without comment. In the modified settlement, the court made' findings of fact which have been previously noted and fashioned multipliers of 1.75 and 1.87. When applied to the lodestar for each attorney, these multipliers yielded awards which were negligibly different from the original awards, which we had specifically found to be improperly fashioned. We regard the use of these curious multipliers as an abuse of discretion because of the strong inference that they raise that the primary impetus in devising them was the justification of the original fee awards.

No question has been raised by the objectors as to the award of fees to the trustee who oversaw the implementation of the settlements, and we find that the trial court’s findings as to the reasonable value of the trustee’s services are not against the manifest weight of the evidence.

The objectors also contend that the trial court erred in dismissing the complaint brought by class members who had been paid pursuant to the prior vacated settlement seeking a full refund of the fees deducted from the amount of their judgments, and that the trial court erred in denying the petition of the objectors for leave to intervene.

In Waters, we held that the objectors did not occupy the status of intervenors as of right, and that denial of their prior petition to intervene was not an abuse of discretion, especially in light of the fact that a request to opt out would have served their interests equally well. (95 Ill. App. 3d 919, 923-24.) The same analysis applies to the complaint and the petition here, and we hold that denial of the petition and dismissal of the complaint were not abuses of the trial court’s discretion.

For the reasons expressed herein, the trial court’s order approving the settlement agreement is vacated and the cause is remanded with directions to the trial court to:

(1) fashion an award of attorney fees without the use of a multiplier and without allowing fees for the defense of this appeal, and otherwise consistent with the views expressed herein;
(2) approve an award of trustee fees in the amount awarded in the vacated settlement order;
(3) order plaintiffs’ attorneys to deposit with the city any excess fees which have already been disbursed to them pursuant to the vacated settlements, in order that such excess fees may be refunded to the members of the plaintiff class; and to
(4) order the city to refund to the class members all excess deductions from the amount of their judgments which were made for the payment of fees pursuant to the vacated settlements.

Vacated and remanded with directions.

DOWNING and BERLIN, JJ., concur.


author: JUSTICE HARTMAN

text:
    ANN MARIE SAMACK, Plaintiff-Appellant, v. TRAVELERS INSURANCE CO., Defendant-Appellee.
    First District (2nd Division)
    No. 81—2898
    Opinion filed December 14, 1982.
    Rehearing denied January 13, 1983.

      Erwin M. Pearl Associates, Ltd., of Chicago (Erwin M. Pearl, of counsel), for appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Edward J. Zulkey, and Paul B. O’Flaherty, Jr., of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff appeals from an order of the circuit court granting defendant’s motion to dismiss her amended complaint for declaratory judgment and damages. She raises as issues whether Florida’s no-fault insurance statute precludes her from suing the driver of the car that struck the car in which she was riding; and, if it does, whether she is entitled to compensation from her own insurance company, defendant Travelers Insurance Co. (Travelers), under the uninsured motorist provision of her policy with them.

For the reasons which follow, we reverse and remand with directions.

The amended complaint in part alleged that: plaintiff was injured when the car in which she was riding as a passenger collided with one being driven by John Kutsch in Daytona Beach, Florida; Kutsch was insured by State Farm Mutual Automobile Insurance Co., pursuant to Florida’s no-fault statutory scheme; plaintiff did not incur permanent physical injuries or sufficient medical expenses to entitle her to sue Kutsch under Florida law; she had rented the car from General Rent-A-Car of Daytona Beach, Florida (General); General did not carry no-fault insurance on the car; because she could not recover from either Kutsch’s or General’s insurance companies, she was injured by an “uninsured motorist”; and, plaintiff’s policy with Travelers provides that she is insured against bodily injuries that are caused by the owner or operator of an uninsured automobile. She sought all damages to which she was legally entitled.

Travelers filed a motion to dismiss pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48) (now section 2—619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—619)), claiming that because Kutsch carried public liability insurance, plaintiff could not have been struck by an uninsured motorist. It also filed an answer to the same effect, denying liability.

As noted above, Travelers’ motion was sustained and the cause dismissed, from which this appeal is taken.

Plaintiff asserts that Florida’s Automobile Reparations Reform Act (no-fault) insurance statute (Fla. Stat. Ann. sec. 627.737 (1972)) bars her from suing Kutsch because her injuries and damages do not meet the prerequisites of Florida’s no-fault statute. Defendant agrees; therefore, we need not tarry with an interpretation of the Florida statutes of which our reading is in consonance with that of the parties. Plaintiff appears to be caught in the middle of an unfortunate situation: she is barred from filing suit under Florida law due to the absence of severe or permanent injuries and her own insurance company, Travelers, contends that it is not responsible either, for two reasons: (1) she is not entitled to recover from the Florida tortfeasor in Florida and under the full faith and credit clause of the Constitution she should also be barred in Illinois; and (2) she was not hit by an uninsured motorist, because the Kutsch vehicle was not uninsured, but “underinsured,” for which condition the policy makes no provision.

The requirement of section 1, article IV of the Federal Constitution, that each State give full faith and credit to public acts and judicial proceedings of other States, is subject to the exception that foreign laws or decisions will not be given effect when in conflict with statutes of the forum (Weiditschka v. Supreme Tent Knights of Maccabees of the World (1920), 188 Iowa 183, 170 N.W. 300), or with its settled public policy. (Gendron v. Calvert Fire Insurance Co. (1943), 47 N.M. 348, 143 P.2d 462; Blanco v. Pan-American Life Insurance Co. (S.D. Fla. 1963), 221 F. Supp. 219, aff'd in part, rev’d in part on other grounds (5th Cir. 1966), 362 F.2d 167.) Moreover, the law of the forum governs matters relating to remedies in an insurance contract, particularly where, as here, the parties are a resident of Illinois and a corporation licensed to do business in this State, evidencing a greater concern and interest of Illinois in the subject matter of this lawsuit than Florida. Allstate Insurance Co. v. Sullam (1973), 349 N.Y.S.2d 550, 76 Misc. 2d 87; see also Butler v. National Live Stock Insurance Co. (1916), 200 Ill. App. 280.

The asserted principal purpose of the Florida no-fault legislation was to provide Florida residents injured in automobile accidents with prompt and certain financial assistance and at the same time relieve the congestion such cases caused the Florida judicial system. (Lasky v. State Farm Insurance Co. (Fla. 1974), 296 So. 2d 9, 16.) Neither of the parties in the instant case claim to be residents of Florida nor has this action been brought in a Florida court. At issue here is the interpretation of a provision of a contract entered into in Illinois between an Illinois resident and a corporation authorized to do business in Illinois, Travelers, which must meet Illinois legislative standards in order to do so. (Ill. Rev. Stat. 1979, ch. 73, par. 755a.) Under these circumstances we find no constitutional bar to plaintiff’s suit in Illinois.

Travelers’ second argument, that the uninsured motorist provision does not apply because Kutsch was an “underinsured” rather than “uninsured” motorist, is based upon Smiley v. Estate of Toney (1969), 44 Ill. 2d 127, 254 N.E.2d 440, State Farm Mutual Automobile Insurance Co. v. Murphy (1976), 38 Ill. App. 3d 709, 348 N.E.2d 491, appeal denied (1976), 63 Ill. 2d 563, and Ripley Resin Engineering Co. v. Great American Insurance Co. (1979), 70 Ill. App. 3d 619, 388 N.E.2d 1258. In each of the cases cited, the defendant carried insurance which complied with the minimum coverage requirements the Illinois legislature has set (Ill. Rev. Stat. 1979, ch. 951/2, par. 7 — 203), thus assuring individuals tortiously injured by another some fund from which they might draw. Unfortunately, because of Florida’s statutory scheme, plaintiff is denied access to those funds. From plaintiff’s point of view, Kutsch is not only uninsured but judgment-proof as well, since Florida law prohibits her from suing him directly.

More importantly, Illinois cases applicable to the present situation hold contrary to Travelers’ position. In Barnes v. Powell (1971), 49 Ill. 2d 449, 275 N.E.2d 377, plaintiff was injured when defendant drove plaintiff’s car in which they were riding off the road into a rock. Her car was insured. Defendant, however, was not. Plaintiff’s insurance policy contained an uninsured motorist provision, similar to the one at issue in the case at bar, which provided that an “uninsured automobile” did not include “an insured automobile.” Relying upon this clause, plaintiff’s insurance company denied liability. Plaintiff argued that as to her the defendant was an uninsured motorist. The supreme court agreed and concluded:

“As to this particular plaintiff, because she was excluded from the liability coverage of the policy, the automobile was not an insured automobile and the driver was not an insured motorist, notwithstanding that as to all others the automobile and the driver may have been insured. Because no liability insurance was applicable to the plaintiff at the time of the accident, her uninsured motorist coverage necessarily became effective in light of the legislative mandate. Our conclusion is in accord with Bowsher v. State Farm Fire and Cas. Co., 244 Ore. 549, 419 P.2d 606, and with the practice of construing limitations on coverage liberally in favor of the policyholder.” (Emphasis added.) 49 Ill. 2d 449, 454.

In Kerouac v. Kerouac (1981), 99 Ill. App. 3d 254, 425 N.E.2d 543, appeal denied (1981), 85 Ill. 2d 577, plaintiffs were passengers in the family car driven by one of plaintiffs’ sons at the time of the accident. Plaintiffs were injured. The father’s policy on the car with defendant insurance company contained the standard uninsured motorist provision. The policy, however, not only provided that insured vehicles were not to be deemed uninsured but also excluded any “vehicle owned by the named insured or any resident of his household” from protection under this provision. The appellate court concluded that the decision and reasoning in Barnes controlled and as to the minor Dale Kerouac, because of the exclusion with respect to liability for injury to family members, the automobile in which he was riding was not an insured automobile and the driver was not an insured motorist, notwithstanding the fact that as to all others the automobile and the driver may have been insured.

In Zurich v. Country Mutual Insurance Co. (1978), 65 Ill. App. 3d 608, 382 N.E.2d 131, appeal denied (1979), 74 Ill. 2d 590, defendant was deemed “uninsured” when his insurance company, which had at first attempted to represent him, withdrew as his counsel because he had refused to cooperate with them. In Zurich, the appellate court explained why Illinois courts have so consistently found protection under the uninsured motorist provisions of insurance policies:

“In the past Illinois courts have not hesitated to reject restrictive definitions in insurance policies in favor of coverage to the insured in an uninsured motorist situation. (See Barnes v. Powell (1971), 49 Ill. 2d 449, 275 N.E.2d 377; Doxtater v. State Farm Mutual Automobile Insurance Co. (1972), 8 Ill. App. 3d 547, 290 N.E.2d 284; Franey v. State Farm Mutual Automobile Insurance Co. (1972), 5 Ill. App. 3d 1040, 285 N.E.2d 151.) While these cases are factually distinguishable from each other and the case at bar, it is clear from the holdings of these cases that the legislative intent was to provide extensive uninsured motorist coverage for those insured under an automobile liability policy. Having contracted for and paid the premiums for uninsured motorist coverage, plaintiff is entitled to the maximum protection possible consonant with the fairness to the insurer.” 65 Ill. App. 3d 608, 611.

See also Wilhelm v. Universal Underwriters Insurance Co. (1978), 60 Ill. App. 3d 894, 377 N.E.2d 62.

Under the foregoing authorities, we find that although the car that struck her was insured for certain purposes, as to plaintiff in the present case it was uninsured, thereby entitling plaintiff to pursue the insurance proceeds of her own insurance policy for uninsured motorist coverage for which she contracted and paid premiums.

Defendant also argues that plaintiff’s amended complaint pleaded no facts supporting an inference that she was entitled to recover damages from Kutsch. Travelers did not raise this issue before the circuit court but rather argued in its motion to dismiss that the uninsured motorist provision was inapplicable and against the public policy of Florida. On appeal, parties are bound to adhere to the theory which they adopted in the circuit court. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 148, 324 N.E.2d 417; In re Marriage of Theeke (1981), 105 Ill. App. 3d 119,126, 433 N.E.2d 1311.

For the reasons set forth above, this cause must be reversed and remanded with directions to vacate the dismissal of plaintiff’s amended complaint and proceed with the litigation.

Reversed and remanded with directions.

DOWNING and PERLIN, JJ., concur.


text:
    CHICAGO TITLE & TRUST COMPANY, Trustee, Plaintiff-Appellant, v. THE SOUTHLAND CORPORATION, Defendant-Appellee.
    First District (2nd Division)
    No. 81—2714
    Opinion filed December 14, 1982.
    Berger and Herman, Ltd., of Chicago, for appellant.
    Roger J. Geurin and Jonathan E. Rothschild, both of Chicago, for appellees.
   JUSTICE DOWNING

delivered the opinion of the court:

In this declaratory judgment action, plaintiff-lessor sought a judicial determination of whether defendant, a percentage rent tenant, was bound by an implied covenant in a 20-year lease to continue conducting its grocery store business for the remainder of the rental period. The trial court denied the prayer for declaratory relief, entered judgment in favor of defendant and plaintiff now appeals.

A written lease was entered into between Chicago Title & Trust Company, as Trustee under Trust Agreement dated September 19, 1967, and known as Trust No. 51172, as lessor, and Northern Illinois Open Pantry Food Marts, Inc. (Open Pantry), for a period covering July 1, 1968, to June 30, 1988. On June 4, 1971, Open Pantry assigned its rights and obligations under the lease to defendant, The Southland Corporation, who thereafter operated a 7-11 Food Store at the premises until January 20,1982.

Article 2 of the lease provided for a fixed sum rent which started at $500 per month for the first 24 months, thereafter increased at intervals, ending with a rent of $575 for the last 120 months. Rider No. 2 of the lease required the lessee to pay additional rent equal to the sum of 2% of the lessee’s annual gross sales in excess of $345,000. This provision became operative with the fiscal year ending in 1976. For the fiscal year ending on November 30, 1980, defendant paid a base rental of $6,900 ($575 a month) and a percentage rental of $6,165.88.

In January of 1981, plaintiff became aware that defendant had plans to vacate the rented premises and move across the street. Plaintiff filed this lawsuit seeking both a preliminary and a permanent injunction to restrain defendant from opening the new store, attorney fees and a declaratory judgment that the lease constituted a binding agreement that defendant continue to operate its business in the leased premises until the expiration of the lease. Plaintiff withdrew its request for a preliminary injunction, and the trial court denied plaintiff’s prayer for attorney fees, injunctive relief and declaratory relief. On appeal, plaintiff only addresses the propriety of the trial court’s denial of declaratory relief.

I

A.

Plaintiff contends that the trial court erred in not declaring that an implied covenant to continue operating a grocery store existed in the lease. Plaintiff strenuously argues that the implied covenant must be recognized in order to carry out the intention of the parties. Plaintiff points to six paragraphs within the lease which make reference to the use of the premises as a grocery store. At trial, plaintiff attempted to offer the testimony of one of the lessors, a beneficiary of the land trust, in order to establish the objectives of the original parties to the lease. As defendant was not a party to those negotiations, the trial court did not allow this testimony. Plaintiff contends that this refusal to allow the testimony was error.

The language of the lease in question was clear and unambiguous. Therefore there was no need to admit extrinsic evidence of the circumstances existing at the time the lease was executed. (Kurek v. State Oil Co. (1981), 98 Ill. App. 3d 6, 8, 424 N.E.2d 56.) Further, the testimony which plaintiff offered at trial concerned negotiations between plaintiff and Open Pantry, the corporation which assigned its interests in the lease to defendant. Evidence at trial indicated that defendant only acquired interest in Open Pantry’s operation in 1970, so that defendant had no relationship with the parties originally negotiating in 1967. The trial court correctly disallowed the proffered testimony.

B.

In support of its position that an implied covenant to continue operation of defendant’s grocery store existed in the lease, plaintiff cites several cases which, upon examination, are inapposite. Two provisions contained in the instant lease are important in its interpretation. Article 18, captioned “Assignment and Subletting,” provides:

“Lessee may, without the consent of Lessor, assign or encumber this lease or its rights hereunder. *** Lessee shall have the right to sublet the leased premises at any time and from to time during the term of this lease.”

Article 26, captioned “Use,” provides:

“Lessee is hereby given the privilege of using the leased premises as a grocery store for the sale of food, packaged beverages (alcoholic and non-alcoholic) and hard and soft goods or for any other lawful purpose. Lessor hereby covenants that during the term of this lease or any extension or extensions hereof, it will not lease any other portion of the building of which the leased premises are a part or any other property in which Lessor now or hereafter has an interest within a radius of one-quarter (VI) of a mile for use as a grocery store of any type, or as a location therefor. ***”

Plaintiff’s reliance on the following cases is misplaced: Simhawk Corp. v. Egler (1964), 52 Ill. App. 2d 449, 202 N.E.2d 49, appeal denied (1965), 31 Ill. 2d 630, involved a lease which contained an express use restriction in which the tenant agreed to use the premises “only for the purpose of a shoe store” (52 Ill. App. 2d 449, 450); both Stoddard v. Illinois Improvement & Ballast Co. (1916), 275 Ill. 199, 113 N.E. 913, and Fox v. Fox Valley Trotting Club (1956), 8 Ill. 2d 571, 134 N.E.2d 806, contain similar express use restrictions and do not include the language in the instant use clause allowing for “any other lawful purpose” to be made of the premises. In Slidell Investment Co. v. City Products Corp. (La. App. 1967), 202 So. 2d 323, a case heavily relied upon by plaintiff, the lease contained an express use provision which did not state that the premises could be used for “any other lawful purpose.”

Plaintiff argues that the phrase “any other lawful purpose” refers back to the types of goods that may be sold in the store, whereas defendant claims that the phrase allows for any other lawful use of the premises in addition to use as a grocery store. Rules of contract construction are applicable to the construction of written leases in Illinois. (Walgreen Co. v. American National Bank & Trust Co. (1972), 4 Ill. App. 3d 549, 554, 281 N.E.2d 462.) When determining the intentions of the parties to a lease, words used in the lease should be given their common and generally accepted meaning. (Kurek v. State Oil Co. (1981), 98 Ill. App. 3d 6, 8, 424 N.E.2d 56.) We believe the language in article 26, “any other lawful purpose,” permits the lessee to use the premises for uses other than a grocery store so long as that use is lawful. The trial court correctly interpreted the use provision of the lease.

Plaintiff also argues that the fact that article 18 allows the lessee to sublet or assign its rights in the lease without the consent of the lessor does not in any way invalidate its theory of an implied covenant to continue business. Defendant, on the other hand, argues that when an express covenant exists, no contrary covenant may be implied. (Nylint Corp. v. Ingram (1973), 11 Ill. App. 3d 122, 123, 296 N.E .2d 392.) An express right to assign rights in a lease is not consistent with an implied obligation to remain and do business. (M. Friedman, Leases sec. 6.903, at 144 (1974).) Defendant cites cases from other jurisdictions which uphold the theory that a tenant’s right to assign its interest in a lease bars a finding of an implied covenant to continue operating. (Kroger Co. v. Bonny Corp. (1975), 134 Ga. App. 834, 216 S.E.2d 341; Williams v. Safeway Stores, Inc. (1967), 198 Kan. 331, 424 P.2d 541; Rapids Associates v. Shopko Stores, Inc. (Wis. App. 1980), 96 Wis. 2d 516, 292 N.W.2d 668; see also Annot., 38 A.L.R.2d 1113, 1117 (1954).) The parties have not cited Illinois cases involving this particular issue, and our research to date has not revealed such authority.

The clear and unambiguous provision in the lease contains descriptive words permissive in nature and does not contain any clauses restricting the rights of the tenant, except as to “lawful use.” If the parties had intended otherwise, they could have inserted simple words of limitation, which they did not.

We therefore affirm the trial court’s decision that no implied covenant to continue business existed in the lease and plaintiff’s request for declaratory relief was properly denied.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

STAMOS, P.J., and HARTMAN, J., concur.

      The paragraphs plaintiff refers to are found in the following articles of the lease: Zoning and Building Laws (article 3) and its Rider (Rider 2, par. 1), Ownership of Plans and Specifications (article 5), Commencement of Rent and Term (article 8), Use (article 26), and the percentage rental clause contained in Rider No. 2, par. 14.


text:
    FIRST BANK OF OAK PARK, Trustee, Plaintiff-Appellee, v. THOMAS CARSWELL, d/b/a Soul D’Elegence, Defendant-Appellant.
    First District (2nd Division)
    No. 81—2378
    Opinion filed December 14, 1982.

      Lawrence Wolk Levin, of Chicago, for appellant.
    Charles M. Pallardy, of Berwyn, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

Plaintiff, First Bank of Oak Park, as trustee (Bank), brought a forcible entry and detainer action against defendant, Thomas Carswell, d/b/a Soul D’Elegence (Carswell), for damages and possession of the premises located at 901 S. Fifth Avenue, Maywood, Illinois. On August 27, 1981, the circuit court, sitting without a jury, entered judgment in the Bank’s favor for possession and damages in the amount of $3,550, representing rent due and owing. In an order entered October 1, 1981, Carswell’s counterclaim was stricken on the Bank’s motion. Carswell’s notice of appeal is taken from the order denying his request for a jury trial, purportedly entered on August 26, 1981.

The principal issues presented are whether: (1) defendant filed his jury demand in a timely manner; and (2) the circuit court abused its discretion by denying his request for a jury trial, even if the jury demand was not timely filed.

The Bank filed its verified complaint on July 20, 1981, seeking possession of store premises at 901 S. Fifth Avenue in Maywood and $3,550 as rent or damages. Carswell admits that he was personally served on August 7, 1981. He failed to appear or otherwise plead on August 13, 1981, the date on which summons directed him to appear, and the circuit court entered judgment for the Bank on that day. On August 21, 1981, Carswell petitioned the court to vacate the August 13, 1981, order and the court heard argument on the petition on August 27, 1981. Carswell was then given leave to file an appearance, answer, and a counterclaim, but his motion for a jury trial was denied on the Bank’s motion on the ground that he had failed to file it in a timely manner. The Bank’s motion to strike Carswell’s counterclaim was deferred until October 1,1981, when it was allowed.

In his petition to vacate judgment, Carswell asserted that he had retained another attorney to represent him who had failed to appear on his behalf, that he (Carswell) had been “ignorant as to the proper procedure,” and that he had a meritorious defense.

Section 64(1) of the Civil Practice Act (now section 2 — 1105(a) of the Code of Civil Procedure, Ill. Rev. Stat. 1981, ch. 110, par. 2—1105(a)), with which Carswell claims he complied, provides that a defendant must file a jury demand not later than the filing of his answer. We are of the opinion that section 64(1) is inapplicable to the present circumstances for the following reasons. Supreme Court Rule 181(b)(2) (87 Ill. 2d R. 181(b)(2)) provides in relevant part: “If the defendant appears [in an action for forcible detainer], he need not file an answer unless ordered by the court.” Since no answer need be filed, the procedure to be followed is similar to a small claims court proceeding, in which a defendant is required to file his jury demand by the time he is required to appear. (87 Ill. 2d R. 285. See Village of Park Forest v. Walker (1976), 64 Ill. 2d 286, 356 N.E.2d 42.) The summons served on Carswell in the present case advised him that his personal and written appearance were required at the courthouse on August 13, 1981, and advised him that a judgment by default could be taken against him if he failed to do so. He was served personally with the summons six days before, and was thus presented with an ample opportunity to file his appearance and jury demand in timely fashion, which he did not do.

Carswell blames his previous attorney for his failure to appear or .otherwise plead on the day default judgment was originally entered against him and claims that he acted with alacrity after he learned that a default judgment had been entered against him. Our system of representative litigation has developed the general rule that the acts or omissions of an attorney are binding upon his client in the conduct of legal matters. (Link v. Wabash R.R. Co. (1962), 370 U.S. 626, 634, 8 L. Ed. 2d 734, 740, 82 S. Ct. 1386, 1392; Big Three Food & Liquor, Inc. v. State Farm Fire & Casualty Co. (1979), 79 Ill. App. 3d 63, 398 N.E.2d 264; Danforth v. Checker Taxi Co. (1969), 114 Ill. App. 2d 471, 253 N.E.2d 114.) No excuse has been offered or suggested in the present case as to why no appearance was filed by defendant’s attorney within the prescribed period. Nor has there been any showing that good cause existed for his failure to request a jury trial in apt time, a burden which Carswell bore in the case before us. Trapani v. Trapani (1969), 109 Ill. App. 2d 202, 248 N.E.2d 294.

Carswell cites Wenban v. Weiner (1974), 23 Ill. App. 3d 561, 319 N.E.2d 580, as authority for his position. Wenban is distinguishable from the instant case since there, after the circuit court had vacated the judgment, plaintiffs were allowed to file an amended complaint and defendants were given 21 days in which to respond. The defendants in Wenban filed their jury demand with their answer to plaintiffs’ amended complaint. Because defendants’ answer and jury demand were timely with respect to plaintiffs’ amended complaint, the appellate court concluded that the jury demand was timely with respect to the entire litigation. In the instant case, no amended complaint was ever filed.

Carswell also relies upon Hudson v. Leverenz (1956), 10 Ill. 2d 87, 93, 139 N.E.2d 255, a wrongful death action under the Dramshop Act for the proposition that article II, section 5 (now article I, section 13) of the Illinois Constitution (which guarantees one’s right to a trial by jury) “ ‘should be liberally construed in favor of the right and the inclination of the court should be to protect and enforce the right.' (Morrison Hotel and Restaurant Co. v. Kirsner, 245 Ill. 431, 433.)” In Hudson none of the defendant tavern owners filed a timely jury demand and each alleged that his failure to file a jury demand in a timely manner was the result of “misapprehension of the facts, mistake, and inadvertence.” The circuit court denied their request and the supreme court affirmed holding that “misapprehension of the facts, mistake, and inadvertence” did not constitute sufficient “good cause” to excuse the seasonable filing of a jury demand. Here, by alleging only personal ignorance and the negligence of counsel, whose acts or omissions are binding upon him, it appears that Carswell merely has alleged the same misapprehension of facts, mistake, and inadvertence that the supreme court dismissed as insufficient in Hudson.

Lastly, Carswell argues that even if he did not file his demand in a timely manner the circuit court, in light of all the circumstances, abused its discretion when it denied his motion for a jury trial, citing H. Vincent Allen & Associates, Inc. v. Weis (1978), 63 Ill. App. 3d 285, 379 N.E.2d 765, Johnson v. Sabben (1972), 7 Ill. App. 3d 238, 282 N.E.2d 476, Trapani v. Trapani (1969), 109 Ill. App. 2d 202, 248 N.E.2d 294, and Hudson v. Leverenz for the proposition that the circuit court upon a showing of good cause may grant a party’s late jury demand. As the Bank notes, however, the Illinois Supreme Court recently discussed both good cause in this regard and the standard of review in such cases in Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90, 382 N.E.2d 1201, and Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205. In Hernandez, the court stated:

“In addition to the requirement of good cause, the court will consider inconvenience to the parties and the court, and any possible prejudice to the rights of the opposing party. (Stephens v. Kasten (1943), 383 Ill. 127, 135.) The decision is made in the discretion of the trial court, and its decision will not be reversed unless there is an abuse of discretion. The standard of review on appeal is not whether the appellate court would have allowed the motion, but whether the action was a reasonable exercise of sound discretion. Johnson v. Sabben (1972), 7 Ill. App. 3d 238, 241.” (73 Ill. 2d 90, 95.)

In Greene, defendant argued that by simply showing that plaintiff would not be prejudiced or inconvenienced he had established “good cause” within the meaning of section 59 and Supreme Court Rule 183. The supreme court disagreed, stating:

“To so construe section 64(1) of the Civil Practice Act would in effect permit the demand to be made at any time so long as neither the court nor a litigant was inconvenienced or prejudiced. We hold, therefore, that in addition to showing that no inconvenience or prejudice would result from the late filing of the demand it was necessary that good cause be shown for failure to comply with the statute. Accord, Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90.” 73 Ill. 2d 100,107.

In addition to the absence of “good cause” in the present case, Carswell failed to demonstrate the absence of inconvenience to plaintiff and the court, or the absence of prejudice to plaintiff as well.

We note in passing that no issues are raised by defendant as to any denial of his right to present evidence in support of his defense or in furtherance of his counterclaim. Nor is any error assigned by defendant to any court ruling, or even the substantive outcome of the case.

For the foregoing reasons, the discretion exercised by the trial court in striking Carswell’s late jury demand must be affirmed.

Affirmed.

DOWNING and PERLIN, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    WESLEY FOURDYCE, Plaintiff-Appellant, v. BAY VIEW FISH COMPANY, INC., et al., Defendants-Appellees.
    Third District
    No. 82—115
    Opinion filed December 20, 1982.
    John Malvik and Dennis A. DePorter, of Braud, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellant.
    Dwight L. Shoemaker, of Conway & Shoemaker, of Aledo, for appellees.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, Wesley Fourdyce, appeals from an order of the circuit court of Mercer County granting defendants’ motion for summary judgment. Plaintiff’s complaint was filed on June 11, 1980, and alleged in two counts that he was injured individually and in a derivative capacity as a result of certain fraudulent and ultra vires acts of the defendants. The complaint recites that plaintiff was a holder of 50 shares of stock in Bay View Fish Co., Inc., since 1961; and that on November 15, 1962, without plaintiff’s knowledge or consent, his holdings were fraudulently transferred to Alice Fourdyce, plaintiff’s mother, who died in 1974.

Several further allegedly “ultra vires” acts are alleged to have occurred between November of 1962 and December of 1976, all of which allegedly took place either without notice to plaintiff or to plaintiff’s exclusion. In response to the complaint, defendants filed a motion for summary judgment pursuant to section 57 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57) alleging, essentially, that plaintiff’s causes of action are time barred and that, in any event, plaintiff lacked standing to pursue his suit because while he admittedly had been a subscriber to 50 shares, plaintiff had failed to exercise his subscription rights and was not, therefore, a shareholder of record. Affidavits were filed by the individual defendants, Joseph and Donna Fourdyce, in support of their motion for summary judgment and by plaintiff, Wesley Fourdyce, in support of his response to the motion. Plaintiff’s response contained allegations, inter alia, reasserting ownership of the 50 shares in question and stating that he had first learned of the allegedly fraudulent transfer of his shares in 1977, upon the reading of his father’s will; and that the defendants had fraudulently concealed written evidence of that transfer from plaintiff from 1962 until his discovery in 1977.

On January 28, 1982, after considering affidavits and exhibits as well as arguments of counsel in support of their positions, the trial court entered judgment granting the defendant’s motion and setting forth its findings on the issues presented by the parties. Specifically the court made the following findings of fact and law, respectively, which are at issue in this appeal:

“9. The Plaintiff, WESLEY FOURDYCE, has never been a Shareholder of record. No Stock Certifieate(s) has ever been issued to the Plaintiff. The Plaintiff has never exercised his subscription rights. The Plaintiff in his complaint alleges a status of shareholder but does not claim that he has ever been a shareholder of record. (See Shareholder Record Book and Corporate Minute Book for the Defendant Corporation, BAY VIEW FISH CO., INC., maintained from May 12, 1961, through date of filing this suit as well as Affidavits establishing that Plaintiff, WESLEY FOURDYCE, has never been a shareholder of record of the Defendant Corporation.)
* * *
3. [Sjince the Plaintiff, WESLEY FOURDYCE, knew of his subscription rights to the fifty (50) shares of stock in question as of May 12, 1961, the five (5) year Statute of Limitations on fraud as found in Section 73 [sic], Chapter 83, Illinois Revised Statutes, would bar any such fraudulent claim.
4. To the extent that either count is a shareholder’s derivative suit, such action by the Plaintiff is barred since Plaintiff has never been a shareholder of record as required pursuant to the provisions of Section 157.45(a), Chapter 32, Illinois Revised Statutes. A Plaintiff must comply with this statutory provision since a shareholder’s derivative suit is an action created by statute and is not a common law action.
5. The Plaintiff’s attempt in this suit to exercise his subscription rights to the fifty (50) shares in question, if based on an oral contract, would be barred by the five (5) year Statute of Limitations for such contract as found in Section 16, Chapter 83, Illinois Revised Statutes, and if based on a written contract, would be barred by the ten (10) year Statute of Limitations as found in Section 17, Chapter 83, Illinois Revised Statutes.”

Plaintiff’s appeal challenges the trial court’s conclusion that there are no genuine issues of material facts based on the pleadings and affidavits of record. It is plaintiff’s position that summary judgment should not have been granted because there remains a genuine issue as to whether plaintiff was a shareholder of record entitled to maintain his causes of action against these defendants.

While, as a general rule, a court of review accords great deference to the determinations of a trial court, in considering an order of summary judgment, we are called upon to balance against this general proposition a strong policy of fairness permitting litigants who, in good faith, seek to resolve their differences in a court of law to have access to our courts. This countervailing policy, then, requires that we reexamine and scrutinize the pleadings, affidavits and exhibits presented to the trial court, strictly construing them against the party moving for summary judgment and liberally in favor of the nonmoving party so as to leave no doubt but that the summary judgment was proper. (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App. 3d 89, 392 N.E.2d 675.) Having done so in the instant case, we conclude that summary judgment should not have been granted. We will consider initially the question of standing to sue.

The defendants make much of the fact that the Business Corporation Act requires plaintiff be a shareholder to bring a derivative action (Ill. Rev. Stat. 1979, ch. 32, par. 157.45(a)). The Act defines “shareholder” as a “holder of record of shares in a corporation.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 32, par. 157.2 — 7.) And, defendants argue, since the plaintiff, who as the first corporate secretary was charged with the duty to maintain records and countersign certificates, never possessed a certificate, he is not a holder of record and he is not entitled to maintain his causes of action. We are not convinced by this argument. Firstly, it is clear to us that a certificate of stock is merely evidence of the fact that the holder thereof is a holder of record. Ill. Rev. Stat. 1979, ch. 32, par. 157.2—8; Connelly v. Estate of Dooley (1981), 96 Ill. App. 3d 1077, 1082, 422 N.E.2d 143, 147.

Secondly, although plaintiff was secretary and certainly had authority to participate in the issuance of stock certificates, the fact that the plaintiff did not possess a certificate for the 50 shares he claims is not conclusive since the record discloses that no corporate certificates were prepared before 1972, and by that time, Alice Fourdyce was acting as secretary — not the defendant. Plaintiff directs our attention to an entry in the minute book memorializing a meeting of November 15, 1962, which states that “Wesley Fourdyce *** relinquished all holdings of the corporation including all shares ***. [A]lso Alice P. Fourdyce had the 50 shares transferred from Wesley to hers [sic].” In his complaint, plaintiff alleges that the November 15, 1962, meeting was held, as aforesaid, without plaintiff’s knowledge or consent and in derogation of the corporation bylaws which require notice to shareholders. Plaintiff points out, however, that the language of the November 15 minutes constitute an admission that he was a shareholder prior to the allegedly fraudulent “transfer.”

Plaintiff further asserts in his affidavit that the corporate records do not represent what, in fact, took place with respect to the issuance of shares to him. Plaintiff also alleges that various acts of labor and services were performed by him in consideration for his shares, and that he did exercise his subscription rights to 50 shares. If plaintiff’s allegations can be proved, then, regardless of the fact that he has never possessed a certificate, plaintiff contends, he would meet the shareholder status requirement for maintaining his derivative suit.

The record supports plaintiff’s argument. The corporate records disclose that plaintiff obtained subscription rights to 50 shares in May of 1961, at the first meeting of shareholders. The minutes of that meeting also variously refer to plaintiff as a director, shareholder and secretary of the corporation. Bylaws adopted on that occasion contain provisions that “directors must be stockholders of this corporation” and “only directors *** shall be eligible to be General Officers of said corporation.” Included among the general officers enumerated in the bylaws is the secretary.

A rebuttable presumption of shareholder status arises when a person votes shares at a shareholder meeting and when a person is elected as a director or officer of a corporation whose bylaws require the holders of such positions to be shareholders. (18 C.J.S. Corporations sec. 476 (1939).) In the present case, we believe that the corporate records give rise to such a presumption on both bases. The defendants presented evidence rebutting the presumption and it is not insubstantial. However, we do not find it so overwhelming as to entitle them to summary judgment. Accordingly, we hold that the above-recited facts and allegations are sufficient to render the issue of the plaintiff’s status as a shareholder or mere holder of subscription rights a material factual dispute.

The defendants also argue that even if an issue exists as to plaintiff’s standing to sue, they are still entitled to summary judgment because, under any applicable statute of limitations, the 20-year-old causes of action would be time-barred. Although the trial court found, as a matter of law, that the plaintiff’s suit is time-barred, we cannot agree.

The plaintiff, although failing to set forth allegations of fraudulent concealment in his complaint, has generally alleged such in his affidavit. The defendants urge that we apply the procedural rule that failure to make specific allegations of fraudulent concealment in a complaint such as this, wherein plaintiff seeks to estop defendants from defending based on the statute of limitations, is fatal to plaintiff’s causes of action (McDaniel v. La Salle Ambulance Service, Inc. (1982), 108 Ill. App. 3d 1042, 440 N.E.2d 158). However, as plaintiff correctly asserts, this rule does not obtain in the procedural context of the instant case inasmuch as the defendants herein sought summary judgment only and they have not attacked plaintiff’s complaint for the sufficiency of its allegations (see Ill. Rev. Stat. 1979, ch. 110, par. 48).

Defendants rely on Chicago Park District v. Kenroy, Inc. (1978), 58 Ill. App. 3d 879, 374 N.E.2d 670, and Auster v. Keck (1976), 63 Ill. 2d 485, 349 N.E.2d 20, in arguing that the trial court was correct in concluding that they were entitled to summary judgment on the basis of their statute of limitations defense. However, because both cases were concerned with the sufficiency of allegations in the pleadings on motions to dismiss, they are not dispositive of the limited issue before us.

It is apparent to us that the trial court erred in giving undue weight to the plaintiff’s knowledge of his subscription rights in 1961 and in focusing upon his finding that the plaintiff had not exercised those rights. As indicated above, the question of whether or not the plaintiff in fact exercised his subscription rights, thereby rendering him an owner of shares at the time of the alleged transfer, remains at issue, and we so find.

We have carefully reviewed the record before us under the strict standard applicable to summary judgments, and we cannot state conclusively when plaintiff had knowledge of facts underlying his cause of action for the fraudulent transfer or conversion of shares allegedly owned by him as a result of his exercise of subscription rights. Nor can we conclude at this juncture that the plaintiff will necessarily be unable to plead and prove facts sufficient to estop defendants from asserting their statute-of-limitations defense. Ill. Rev. Stat. 1979, ch. 83, par. 23.

Accordingly, we hold that plaintiff’s complaint and affidavit, when read together, sufficiently raise a genuine issue of material fact as to whether the defendants fraudulently concealed plaintiff’s cause of actions between 1963 and his discovery of it in 1977 to resist a motion for summary judgment.

For the reasons stated, the judgment of the trial court is reversed and this cause is remanded for further proceedings.

Reversed and remanded.

ALLOY and SCOTT, JJ., concur.