author: JUSTICE HOPF

text:
    HARRY J. HORAK, JR., Plaintiff-Appellant, v. DEAN BIRIS, Defendant-Appellee.
    Second District
    No. 84—33
    Opinion filed January 23, 1985.

      Clifford E. Lund, of Schaffner & Associates, Chartered, of Dundee, for appellant.
    Francis A. Spina and Jay H. Tressler, both of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

In this appeal we are asked to recognize a cause of action for social worker malpractice under the facts presented in this case. Plaintiff, Harry J. Horak, Jr., filed a six-count amended complaint essentially alleging negligence and malpractice (counts I through IV) and breach of contract (counts V and VI) against defendant Dean Biris, a certified social worker, for defendant’s having had sexual relations with plaintiff’s wife during the course of marital counseling sought by the Horaks. Counts I through IV of the complaint were dismissed by the circuit court of Kane County based upon a Fourth District opinion, Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 445 N.E.2d 6, which refused to recognize the tort of social worker malpractice under facts similar, if not identical, to those in the instant case. Plaintiff appeals from the dismissal of these counts, urging us to reject the reasoning in Martino. We note that counts V and VI were voluntarily nonsuited and a final and appealable order was issued as to counts I through IV.

Counts I through IV, although based on different theories, alleged the following essential facts in common: (1) that in February 1978, defendant held himself out to the general public as an expert in the field of psychology and mental therapy, and held himself out to professionally counsel individuals, couples, and groups for emotional problems, marriage difficulties, and other conditions which were treatable by the use of psychotherapy, psychiatric techniques, and mental therapy; (2) that on or about February 1978, defendant began to provide psychological counseling and psychiatric and mental therapeutic care for Dorothy Horak, plaintiff’s then-wife; (3) that during his counseling defendant obtained significant information from plaintiff’s wife about the personal profile of plaintiff and the Horak’s marital relationship; (4) upon defendant’s request and relying upon defendant’s reputation in the community as a qualified psychological or mental therapist, plaintiff began a course of treatment with the defendant in October 1978, which treatments continued until March 1980 and were paid for by contractual arrangement costing approximately $170 per month; (5) that during this period, defendant had a close and confidential relationship with the plaintiff and that plaintiff therefore communicated numerous confidential facts about his life, personality, and marriage to the defendant; (6) that defendant administered a course of treatment ostensibly to cure and aid the plaintiff’s sense of ill-being, but which was not in accordance with generally accepted standards of psychological, psychiatric and therapeutic care; and, (7) that defendant owed a duty to plaintiff to perform a course of treatment calculated to lead to the alleviation of plaintiff’s condition of ill-being.

Counts I and IV, based upon theories of negligence and malpractice, further alleged that in violation of defendant’s aforementioned duty, defendant committed numerous negligent acts or omissions, including the following: (1) failed to inform plaintiff that a conflict of interest existed in counseling both the plaintiff and his wife; (2) failed to terminate therapy with the plaintiff as soon as he realized that a conflict of interest existed; and (3) failed to understand and guard against the transference phenomenon which occurs between psychotherapists and their patients.

Counts II and III, based respectively upon wilful and wanton and intentional conduct, alleged that defendant committed one or more of the following acts: (1) failed to provide treatment calculated to lead to the alleviation of plaintiff’s condition of ill-being; (2) appeased defendant’s own self-interest, in disregard and in violation of professional standards and in detriment to plaintiff’s condition; (3) caused plaintiff’s condition of ill-being to deteriorate while under defendant’s care without providing any psychological, psychiatric or mental therapeutic treatment; and (4) began and allowed a course of treatment to continue that was of such a nature as to do great harm to plaintiff’s condition of ill-being. We note that plaintiff’s original two-count complaint, based upon theories of breach of fiduciary relationship and malpractice, also alleged that defendant became emotionally and romantically involved with plaintiff’s then-wife, had sexual relations with her, and thereafter continued to counsel plaintiff. The act of sexual involvement with plaintiff’s wife was not specifically alleged in the amended complaint but was alluded to in plaintiff’s allegation regarding the transference phenomenon in counts I and IV. This allegation will be further discussed later in this opinion.

Defendant’s motion to dismiss was originally filed in response to plaintiff’s initial complaint and sought to dismiss count II of that complaint, which alleged malpractice, on the basis of the Martino decision. By court order, the motion was allowed to stand as to counts I, II and IV of plaintiff’s amended complaint. In answer to count III (alleging intentional conduct) and count Y (alleging breach of contract), defendant admitted that he held himself out as a psychotherapist available for professional consultation, that he was a licensed psychotherapist registered with the State of Illinois, that he requested a consultation with the plaintiff, that plaintiff demonstrated a need for psychotherapy, that services were contracted for by plaintiff, that payment for such services was made, and that defendant administered a course of treatment for plaintiff’s benefit. Defendant essentially denied all other allegations, including the allegation that the treatments were either psychological or psychiatric in nature. Additionally, on appeal defendant stated that at the time in question he operated a facility called the “Center for Psychotherapy” where he performed services described as “psychotherapy.”

In dismissing the counts in question, the circuit court noted that although it was bound by the Fourth District’s opinion in Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 445 N.E.2d 6 (see People v. Collings (1981), 95 Ill. App. 3d 325, 329, 420 N.E.2d 203), it disagreed with the reasoning of that case. We have reviewed the Martino decision and agree with the circuit court that the tort of social worker malpractice should be recognized under the facts presented here.

In Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 445 N.E.2d 6, the plaintiff, Janet Martino, filed a five-count complaint against the Family Service Agency of Adams County (Family Service) and Jane Balke, the chief executive officer of Family Service, essentially alleging that plaintiff and her husband sought and received marital counseling services from Family Service, that defendant Balke was assigned to and did counsel plaintiff, and that during this period Balke: (a) used against plaintiff’s interest information obtained by Balke from plaintiff during counseling, (b) revealed those confidences to others, (c) fell in love with plaintiff’s husband, pursued him, and engaged in “intimate relations” with him, and (d) after developing this conflict of interest failed to either inform plaintiff of the conflict or terminate her counseling relationship with plaintiff. (112 Ill. App. 3d 593, 594-95, 445 N.E.2d 6.) Respecting her malpractice claim, Mrs. Martino argued that the situation was analogous to the medical profession, where a breach of duty has been held to arise from a psychiatrist’s having intercourse with his patient as part of her prescribed therapy (Roy v. Hartogs (1976), 85 Misc. 2d 891, 381 N.Y.S.2d 587), and a hospital’s negligent failure to abide by licensing regulations (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253). Plaintiff also urged the court to consider the code of ethics adopted by the National Association of Social Workers, which would have been violated by defendant Balke’s conduct.

While noting that there was an inference arising from numerous authorities that the tort of malpractice is applicable to one engaged in the profession of social work, the Martino court nevertheless was unwilling to recognize such a tort, “at least when it arises from conduct not intended to harm.” (112 Ill. App. 3d 593, 597, 445 N.E.2d 6.) The court stated:

“Although the conduct alleged here was clearly improper, determination of the propriety of conduct of social workers and the relationship it might have to injury suffered by clients generally would be most difficult to ascertain. The damages a client might receive from the improper practice of social work are unlikely to be pecuniary in nature and extremely unlikely to be physical in nature.” (112 Ill. App. 3d 593, 597, 445 N.E.2d 6.)

The court then concluded that in the absence of Illinois precedence there was “no compelling policy reason to initiate the recognition of the tort of social worker malpractice for unintended ‘hurts’ most of which we deem likely to be ‘slight hurts which are the price of a complex society.’ ” 112 Ill. App. 3d 593, 597, 445 N.E.2d 6, quoting Knierim v. Izzo (1961), 22 Ill. 2d 73, 85, 174 N.E.2d 157, 164.

Contrary to the reasoning set forth in the Martino decision, we believe that the facts alleged and admitted in the instant case are sufficient to establish a cause of action for social worker malpractice. “Malpractice” is defined in Black’s Law Dictionary 1111 (rev. 4th ed. 1968), as “[a]ny professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practice, or illegal or immoral conduct.” The elements necessary to establish a malpractice action are the same elements required of any negligence case. (See, e.g., Borowski v. Von Solbrig (1973), 14 Ill. App. 3d 672, 677, 303 N.E.2d 146.) Thus, plaintiff must plead: (1) that defendant owed him a duty, (2) that defendant failed to perform or breached that duty, (3) that the breach was the proximate cause of plaintiff’s injuries, and (4) damages. (14 Ill. App. 3d 672, 677, 303 N.E.2d 146.) Whether a duty exists is a question of law to be determined by the court, but whether the duty is properly performed by defendant is a fact question to be decided by the trier of fact. (Johnson v. Hoover Water Well Service (1982), 108 Ill. App. 3d 994, 1003, 439 N.E.2d 1284.) A person’s duty to act with reasonable care does not extend to the world at large, but, rather, is defined and limited by various considerations such as the relation between the parties, the gravity and foreseeability of the harm, the utility of the challenged conduct and the burden of guarding against the injury. Orrico v. Beverly Bank (1982), 109 Ill. App. 3d 102, 105-06, 440 N.E.2d 253.

We believe the facts alleged in the instant case, if proved, sufficiently establish a duty owed by defendant Biris to plaintiff Horak and a subsequent breach of that duty by defendant. It was alleged that plaintiff went to defendant’s office, at defendant’s request, to receive counseling and guidance in his personal and marital relationships, ostensibly for the purpose of improving those relationships. Defendant held himself out as a social worker licensed by the State to render such assistance and insight. His license placed him in a position of trust, the violation of which would constitute a breach of the fiduciary relationship. Such a breach has been held on several occasions to be an actionable and independent tort. (See Allabastro v. Cummins (1980), 90 Ill. App. 3d 394, 399, 413 N.E.2d 86; Glass v. Burkett (1978), 64 Ill. App. 3d 676, 381 N.E.2d 821; but see Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 596, 445 N.E.2d 6, suggesting that a breach of fiduciary relationship is not an actionable tort.) Further, we think that the very nature of the therapist-patient relationship, which was alleged and admitted here, gives rise to a clear duty on the therapist’s part to engage only in activity or conduct which is calculated to improve the patient’s mental or emotional well-being, and to refrain from any activity or conduct which carries with it a foreseeable and unreasonable risk of mental or emotional harm to the patient.

Regarding a breach of defendant’s duty to plaintiff, we reiterate that the question whether the duty is properly performed is a fact question to be decided by the trier of fact. (Johnson v. Hoover Water Well Service (1982), 108 Ill. App. 3d 994, 1003, 439 N.E.2d 1284.) We believe plaintiff alleged sufficient facts which, if proved and believed by the trier of fact, would establish a breach of defendant’s duty to refrain from conduct that is detrimental to plaintiff’s well-being. Defendant operated a facility known as the “Center for Psychotherapy,” where he performed counseling services defined as “psychotherapy.” He allegedly held himself out as possessing a certain expertise in the counseling and treatment of emotional and social problems. Accordingly, defendant was required to exercise that degree of skill and knowledge normally possessed by members of the social work profession practicing in the same field. (See Restatement (Second) of Torts sec. 299A (1965).) We note that the field of practice engaged in by defendant here more closely resembles the practice of psychology rather than social work, as those two practices are currently defined in the Illinois Revised Statutes. (See Ill. Rev. Stat. 1979, ch. 111, pars. 5304, 6302.) Because of the apparent overlapping of these two fields, we think the proofs may well reveal that defendant possessed or should have possessed a basic knowledge of fundamental psychological principles which routinely come into play during marriage and family counseling. The “transference phenomenon” is apparently one such principle, and has been defined in psychiatric practice as “a phenomenon *** by which the patient transfers feelings toward everyone else to the doctor, who then must react with a proper response, the countertransference, in order to avoid emotional involvement and assist the patient in overcoming problems.” (Aetna Life & Casualty Co. v. McCabe (E.D. Pa. 1983), 556 F. Supp. 1342, 1346.) The mishandling of this phenomenon, which generally results in sexual relations or involvement between the psychiatrist or therapist and the patient, has uniformly been considered as malpractice or gross negligence in other jurisdictions, whether the sexual relations were prescribed by the doctor as part of the therapy, or occurred outside the scope of treatment. (See Roy v. Hartogs (1976), 85 Misc. 2d 891,_, 381 N.Y.S.2d 587, 588; Zipkin v. Freeman (Mo. 1968), 436 S.W.2d 753, 762; St. Paul Fire & Marine Insurance Co. v. Mitchell (1982), 164 Ga. App. 215, 296 S.E.2d 126; Cotton v. Kambly (1980), 101 Mich. App. 537, 300 N.W.2d 627; Aetna Life & Casualty Co. v. McCabe (E.D. Pa. 1983), 556 F. Supp. 1342.) Accordingly, we believe that plaintiff’s allegation of a mishandling of the transference phenomenon sufficiently alleges a breach of the defendant’s duty here.

In this regard, we reject defendant’s assertion that plaintiff lacks standing to proceed on a malpractice action because the acts and/or omissions complained of were directed only to plaintiff’s wife and not to plaintiff. Liability in tort is generally determined by the scope of the duty owed rather than by artificial concepts of privity. (Agee v. First National Bank (1979), 68 Ill. App. 3d 794, 798, 386 N.E.2d 899.) Thus, the lack of a direct contractual relationship between the parties is not a defense in a tort action. (68 Ill. App. 3d 794, 798, 386 N.E.2d 899.) Here, both the plaintiff and his wife were patients of the defendant, apparently for the common purpose of rehabilitating their marital relationship. Thus, the treatment of each of the spouses would reasonably have an effect upon the other spouse and the prospects of improving the couple’s marriage. To this extent, any malpractice committed by the defendant in the treatment of plaintiff’s wife would clearly have an impact upon the plaintiff as well. See Anclote Manor Foundation v. Wilkinson (Fla. App. 1972), 263 So. 2d 256, and Andrews v. United States (4th Cir. 1984), 732 F.2d 366, both permitting recovery by the patient’s husband for the therapist’s malpractice towards the wife-patient.

Insofar as damages are concerned, it is clear that if plaintiff can prove defendant’s malpractice, if any, was the result of intentional conduct (as alleged in count III of plaintiff’s complaint) the plaintiff would be entitled to recover for emotional distress pursuant to Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157. Plaintiff in any event would be entitled to recover actual damages, including loss of consortium. See Dini v. Naiditch (1960), 20 Ill. 2d 406, 427, 170 N.E.2d 881, dealing with recovery for loss of consortium in a negligence action.

In recognizing a cause of action for social worker malpractice under the facts presented in this case, we note that our legislature has provided for revocation of a social worker’s license if he or she is found to be “unfit or incompetent by reason of gross negligence in the practice of social work.” (Ill. Rev. Stat. 1979, ch. 111, par. 6315(b).) A similar provision exists for the revocation of a psychologist’s license. (See Ill. Rev. Stat. 1979, ch. 111, par. 5316(2).) Additionally, a social worker is required to be registered in Illinois pursuant to the Social Workers’ Registration Act (the Act), in order to use the title “social worker.” (Ill. Rev. Stat. 1979, ch. 111, par. 6301 et seq.) Defendant in the present case is a “certified social worker,” and thus must meet certain educational requirements as prescribed in the Act. (See Ill. Rev. Stat. 1979, ch. 111, par. 6307.) Also, the legislature was mindful of the concept of a social worker malpractice cause of action. They provide in section 20 of the Act (Ill. Rev. Stat. 1979, ch. 111, par. 6324), “No social worker may disclose any information, *** except: ***, (2) in actions, civil or criminal, against the social worker for malpractice ***.”

We believe these provisions, not discussed in the Martino decision, indicate that the legislature of this State is concerned with the quality of service rendered by the social work profession, even to the extent of providing for procedures to eliminate certain “incompetent” social workers from the practice of social work. Further, these provisions, along with the code of ethics apparently adopted by the National Association of Social Workers (see Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 445 N.E.2d 6), make it clear that certain minimum standards of professional conduct do exist for social workers, contrary to the suggestion in the Martino decision that the propriety of a social worker’s conduct would be difficult to ascertain. (Martino v. Family Service Agency (1982), 112 Ill. App. 3d 593, 597, 445 N.E.2d 6.) While it may be true that certain fields of social work (i.e., community organization for social welfare, social work research, social welfare administration) may not readily lend themselves to a malpractice action, we believe that marriage and family counseling is one area of social work likely to possess more well-defined principles of social work practice because of its close association with the field of psychology. We are also of the opinion that an adoption by this court of the reasoning set forth in Martino would serve only to shield mental health professionals from any consequences of their actions to the detriment of those individuals who turn to them in reliance upon their professional expertise and in a good-faith attempt to improve their marital and family relations. We believe such a result runs contrary to the public policy of this State as gleaned from the statutes heretofore discussed. We also note that the plaintiff in Martino apparently did not allege the mishandling of any psychological principles, and to that extent the Martino decision is distinguishable from the instant case.

Finally, the defendant has filed a motion to strike those portions of plaintiff’s brief dealing with the teachings of Sigmund Freud and the code of ethics apparently adopted by the National Association of Social Workers. The basis for the motion is that these authorities were not introduced at the proceedings below. We deny the motion, since these principles and standards are found in numerous legal authorities dealing with the issue at bar, and because our decision in this case is based primarily upon a finding of a duty owed by defendant and not upon the authorities cited in plaintiff’s brief.

Accordingly, the order of the circuit court of Kane County is reversed and remanded for further proceedings. Defendant’s motion to strike certain portions of plaintiff’s brief is denied.

Reversed and remanded.

NASH, P.J., and STROUSE, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MEJDA

license: Public Domain

text:
    MADIGAN BROTHERS, INC., Plaintiff-Appellant, v. MELROSE SHOPPING CENTER COMPANY et al., Defendants (La Salle National Bank, Trustee, et al., Defendants-Appellees; Edward Rothschild et al., Defendants).
    First District (5th Division)
    No. 84—0950
    Opinion filed December 28, 1984.
    Rehearing denied February 22, 1985.
    Defrees & Fiske, of Chicago (Edward J. Griffin, of counsel), for appellant.
    Leon Zelechowski and Robert Blecher, both of Boorstein, Freed, Zelechowski & Cohn, of Chicago, for appellees.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, Madigan Brothers, Inc., appeals from an order granting defendants’ motion to strike plaintiffs motion for preliminary mandatory injunction. On appeal, the issue is whether the trial court erred in granting defendants’ motion to strike. We affirm.

We initially note that the trial court heard no evidence on the merits of this cause; therefore, only the matters raised in the pleadings and subsequent pretrial motions are addressed herein. The record discloses that plaintiff is a tenant in a shopping center owned by defendants, La Salle National Bank, Winston Plaza Associates, David Goldstein and T.D.P. Corporation. The lease entered into by the parties provides, in relevant part, as follows:

“The landlord, *** agrees that, at its sole cost and expense, subject to the provisions of Section 2 of Article III, it will provide, operate, manage and maintain during the term of this lease, and any extension thereof, all of the parking areas, *** and that it will keep such areas free of obstruction, clear of debris, water, ice and snow and in a clean condition.” (Emphasis added.)

Plaintiff is required by section 2 of article III of the lease to pay an additional minimum guaranteed rent of $4,000 per year as plaintiffs share of the cost of maintaining the common areas of the shopping center.

Count I of plaintiffs fourth amended complaint alleged that defendants failed and refused to remove snow and ice from the parking areas of the shopping center and threatened to do so in the future, thereby eliminating parking spaces, obstructing traffic and parking, and creating a hazard to persons using the parking areas. In its prayer for relief, plaintiff sought a preliminary injunction restraining defendants from further violating the terms of the lease during the pendency of this action. In a subsequently filed motion for a preliminary injunction, plaintiff sought an order compelling defendants to remove snow or slush from the parking areas whenever the snow reached a depth of an inch or more, that removal would be completed by 8:30 a.m. whenever snow reached that depth by 8 a.m., and that when snowfall continued or began after 8 a.m., removal would be repeated or continued until one hour after the closing of plaintiffs store on that day.

Defendants moved to strike plaintiff’s motion for preliminary injunction on the grounds that a mandatory injunction could potentially require the continuing supervision of the trial court and that the lease provisions in question are too vague and uncertain to be enforceable. The trial court granted defendants’ motion on the basis that the relief sought was beyond the terms of the lease, the court’s ongoing and continuous supervision of the snow and ice removal would be required, and that the current winter season was substantially over, rendering the issue moot. The order was granted without prejudice to plaintiff’s right to request injunctive relief on an occurrence basis when ice and snow are present in the shopping center. Plaintiff filed this interlocutory appeal of the trial court’s order pursuant to Supreme Court Rule 307 (87 Ill. 2d R. 307).

Opinion

The issue raised in this appeal is whether the trial court erred in granting defendants’ motion to strike plaintiff’s motion for a preliminary mandatory injunction. Plaintiff contends that the trial court should have granted specific performance either according to the terms of the lease or, in the alternative, specifying the particular circumstances when snow removal should be conducted.

On review, the only question before us is whether there was a sufficient showing to sustain the order of the trial court denying the preliminary injunction. S & F Corp. v. American Express Co. (1978), 60 Ill. App. 3d 824, 828, 377 N.E.2d 73.

The purpose of a preliminary injunction is to preserve the status quo, not to decide the merits of the case. (Rosinia v. Gusmano (1980), 90 Ill. App. 3d 882, 886, 414 N.E.2d 21.) A plaintiff is not required to present a case which will entitle him to the relief he seeks but need only raise a fair question as to the existence of the rights claimed, lead the court to believe that he will probably be entitled to the relief sought if the evidence sustains the allegations of the petition, and make it appear advisable that the positions of the parties should stay as they are until the case is considered on the merits. Kaplan v. Kaplan (1981), 98 Ill. App. 3d 136, 141, 423 N.E.2d 1253.

The need for a mandatory injunction is subject to judicial skepticism, particularly when the court is asked to make this drastic use of its powers preliminarily. (Ambassador Foods Corp. v. Montgomery Ward & Co. (1963), 43 Ill. App. 2d 100, 104-05, 192 N.E.2d 572.) A preliminary mandatory injunction is an extraordinary remedy, not a matter of right, which may be granted only when the need for such relief is clearly established and free from doubt. 43 Ill. App. 2d 100, 104-05, 192 N.E.2d 572.

In order for a preliminary injunction to issue, the plaintiff must show that (1) he has a clear and lawful right for which he seeks protection, (2) he will suffer irreparable harm, (3) there is no adequate remedy at law, and (4) he is likely to be successful on the merits. Packard Instrument Co. v. Reich (1980), 89 Ill. App. 3d 908, 915, 412 N.E.2d 617; Frank B. Hall & Co. v. Payseur (1979), 78 Ill. App. 3d 230, 236-37, 396 N.E.2d 1246.

We believe that plaintiff has failed to make a sufficient showing of a likelihood of success in a trial on the merits for permanent injunctive relief. An injunction will not be granted to enforce the terms of a contract where the contract is not definite and certain and where its terms are vague and ambiguous. (Triangle Sign Co. v. Randolph & State Property, Inc. (1957), 16 Ill. App. 2d 21, 28, 147 N.E.2d 451.) In the instant case, the absence of any specific provisions regarding the timing and manner of snow removal rendered those provisions of this contract vague and uncertain. With respect to those issues, therefore, we find that plaintiff’s right to the relief requested was neither clearly established nor free from doubt. In our opinion the trial court was justified in refusing to enter an order for a preliminary mandatory injunction.

Even if the terms used in the agreement were certain, under these circumstances plaintiff still would not be entitled to specific performance. Our supreme court held in White v. Lang (1948), 401 Ill. 219, 81 N.E.2d 897, that specific performance should not be granted when a claimant seeks relief which exceeds the agreement of the parties. Plaintiff here sought a preliminary injunction compelling defendants to remove snow or slush from the parking areas whenever the snow reached a depth of an inch or more, that removal would be completed by 8:30 a.m. whenever snow reached that depth by 8 a.m., and that when snowfall continued or began after 8 a.m., removal would be repeated or continued until one hour after the closing of plaintiff’s store on that day. An examination of the lease reveals a total lack of any provision regarding the precise method or manner in which snow removal is to be accomplished. Defendants agreed only to keep the common and parking areas “clear of debris, water, ice and snow and in a clean condition.” The trial court’s order stated that because the relief plaintiff sought appears to be beyond the scope of the lease, an injunction was inappropriate. We agree that the relief plaintiff requested clearly exceeds the boundaries of the agreement.

It is also apparent that the purpose of a preliminary injunction, the preservation of the status quo, would not be served by denying defendants’ motion to strike. Plaintiff’s motion did not seek to maintain the status quo, but rather to alter it and to impose additional obligations on the defendants. The status quo which a preliminary injunction works to preserve is “ ‘the last, actual, peaceable, uncontested status which preceded the pending controversy.’ ” (Duval v. Severson (1973), 15 Ill. App. 3d 634, 641, 304 N.E.2d 747.) Here, the status quo would not be maintained by the entry of the preliminary injunction which plaintiff seeks. It is our opinion, therefore, that plaintiff has not clearly established the need for a preliminary mandatory injunction and that there was a sufficient showing to sustain the order of the trial court denying the relief sought. It is not our intent here, however, to express an opinion regarding the merits of this cause upon a future hearing.

For the foregoing reasons, the order of the trial court granting defendants’ motion to strike plaintiff’s motion for a preliminary mandatory injunction is affirmed.

Affirmed.

SULLIVAN and PINCHAM, JJ., concur.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LARRY HOLMAN et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—2053
    Opinion filed January 14, 1985.
    Richard M. Daley, State’s Attorney, of Chicago (Michael Shabat, Frank Zelezinski, and Pamela Martin, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Frank Madea, Assistant Public Defender, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal by the State from an order of the circuit court entered during a bench trial denying the State’s motion for a continuance. The motion was made after the victim, who was first prosecution witness, had testified. After the motion was denied, the State declined to participate further in the trial; however, defendants then put on an alibi defense supported by the testimony of four witnesses. Thereafter, the trial court ruled that the victim’s identification testimony was not sufficient to sustain a conviction and found both defendants not guilty.

The State filed a notice of appeal from the order denying the motion for continuance. The State argues that: (1) the trial court abused its discretion by denying the motion for a continuance; and (2) that this court has jurisdiction over this appeal under Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)) on the ground that the denial of a continuance had the substantive effect of dismissing the charges against defendants. Defendants contend that there was a trial on the merits followed by a judgment of acquittal from which the State may not appeal. (Ill. Const. 1970, art. VI, sec. 6; Ill. Rev. Stat. 1983, ch. 38, par. 3—4(a)(1).) In the alternative, defendants maintain that the trial court ruled appropriately by denying the State’s motion for a continuance.

State’s Case

Defendants, Larry Holman and Jeff Turnage, were charged with armed robbery, unlawful restraint and armed violence. In a joint bench trial which began on July 20, 1983, the following evidence was introduced:

The victim, Darryl Buchanan, testified that on September 13, 1982, at 10 p.m., three men approached him as he finished washing his car at a carwash located at 59th Street and Oakley. One of the men ordered him at gunpoint to get into the back seat of his car and then sat next to him. The other two men, whom Buchanan identified in court as defendants Holman and Turnage, entered the driver’s seat and front passenger seat, respectively. Buchanan stated that as Holman drove toward 66th Street, the third assailant in the back seat took his wallet containing $350, his keys and a gold chain. He said the assailants then let him out of the car and drove away.

On September 14, 1982, Buchanan identified Turnage in a police lineup. On September 27, 1982, Buchanan’s car was recovered; on the same day he identified Holman in a police lineup. After the lineup the police showed him three sets of photographs from which he identified Holman. Buchanan said he told the police that he wanted to be certain of his identification because some people had told him that he was identifying the wrong men and he was confused.

On cross-examination, Buchanan admitted that he did not have a very good opportunity to see the two men who were seated in the front seat of his car and stated that the police did not request a description from him of those two men. With respect to the lineups, Buchanan stated he was confused and worried about picking out the wrong men because he had only had a few seconds to observe the two assailants in the front seat. At that point, the witness was dismissed and the trial was continued until August 2,1983.

When the trial reconvened the assistant State’s Attorney requested a continuance, advising the court he had just found out that his other two witnesses, both police officers, were unavailable. The trial court responded that this was the third time the State was requesting a continuance because of the unavailability of its witnesses. The court noted that the case had been continued from July 20 to a date selected by the State and prior to that had been continued from June 16 because of the unavailability of the State’s witnesses. Both defendants objected to another continuance, stating they had witnesses in court. Although the assistant State’s Attorney offered to take the witnesses out of order, the trial court noted that it had been 2xk weeks since the last court date and denied the State a continuance. After further argument the trial court held the case until 2 p.m. that day to give the assistant State’s Attorney an opportunity to locate his two witnesses. At that time the assistant State’s Attorney told the court that the officer who was to testify with respect to Holman was on furlough and his partner was unavailable; he could not locate the officer whom he intended to call concerning Turnage. The trial court reiterated that the State had more than one opportunity to bring its witnesses into court and that there had been a 2xk-week interim since the last court date. The court again denied the State’s motion for a continuance. The State objected to the trial proceeding and proposed to make an offer of proof concerning the officers’ testimony which the court declined to accept. The assistant State’s Attorney said he had no further witnesses at that time but that the State was not prepared to rest. Defendants then moved for a directed verdict which the trial court denied.

Defense

Chicago Police Officer Terry Jordan testified on behalf of defendant Holman that he responded to the robbery call and that Buchanan was able to describe the gunman but was not able to describe the other two assailants except to say that they were both black males about 27 years old. The State declined to cross-examine Officer Jordan based upon its continuing objection to the trial proceeding.

Thelma Downs testified that on September 13, 1982, at 9 p.m. defendant Holman was at home with her. Ms. Downs stated that he went to the store at 9:30 p.m. and returned 10 minutes later. Other than when he went out onto the porch, he remained at home with her that evening. Again the State declined to cross-examine the witness.

Defendant Turnage’s father testified that on September 13, 1982, between 7:35 and 10:35 p.m. his son was with him in his garage replacing a water pump in his car. The State did not cross-examine.

Defendant Turnage testified on his own behalf that he was 21 years old and that on September 13, 1982, between 7:30 and 10:30 p.m., he was with his father in their garage installing a water pump in his mother’s car. The State did not cross-examine and declined to introduce rebuttal testimony.

The trial court then stated that the record was perhaps more limited than it should be, but that the court had heard the testimony of the victim and had observed his demeanor. The court noted that there was some equivocation concerning his description of two of the three assailants and that he testified that, although the lighting was good at the carwash, the only person he really had an opportunity to view was the man holding the gun. The court then stated that it was considering Buchanan’s testimony in addition to the defense’s alibi witnesses and Officer Jordan’s testimony that Buchanan was unable to give him a detailed description of those two of his assailants who were not the gunman. The trial court concluded that the record would not sustain a finding of guilty of the offenses charged and therefore found both defendants not guilty.

The State then filed a notice of appeal which purported to be limited to contesting the trial court’s order denying the State’s motion for a continuance and “subsequent discharge of defendants.” The State also filed a certificate of impairment alleging that the trial court’s order denying a continuance substantially impaired the State’s ability to prosecute this case and that the State’s authority to appeal was derived from Supreme Court Rule 604 (87 Ill. 2d R. 604).

Prior to considering the merits of the substantive issue raised on appeal, we must consider whether this court has jurisdiction to do so pursuant to Supreme Court Rule 604(a)(1) as the State contends, or whether, as defendants maintain, this is an impermissible attempt by the State to appeal from a judgment of acquittal following a trial on the merits.

The State’s rationale for its position that this court has jurisdiction under Supreme Court Rule 604(a)(1) is that the denial of the State’s motion for a continuance “had the substantive effect of dismissing the charges against defendants.” Supreme Court Rule 604(a)(1), however, is not that general and does not bestow appellate jurisdiction in every case where the State receives an adverse ruling at any stage of the trial or simply because the State characterizes the effect of an adverse ruling as “having the substantive effect of dismissing the charges.” To the contrary, the rule applies only in specific pretrial situations.

Subsection (a)(1) of Supreme Court Rule 604 states in pertinent part:

“In criminal cases the State may appeal only from an order or a judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114—1 of the Code of Criminal Procedure of 1963 ***.” (Emphasis added.) (87 Ill. 2d R. 604(a)(1).)

Effective January 1, 1984, section 114—1(a) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 114—1(a)) identifies 11 specific instances wherein the trial court may dismiss the indictment information or complaint; none has any relevance to the instant case.

We are aware that appellate jurisdiction pursuant to Supreme Court Rule 604(a)(1) has been extended to permit the State to appeal from a pretrial order denying the State a continuance in a limited situation where the effect of the trial court’s ruling was to preclude the State from conducting a trial at all due to the unavailability of the State’s witnesses, thereby eliminating any possibility of convicting the defendant. (People v. Edwards (1981), 97 Ill. App. 3d 407, 422 N.E.2d 1117; cf. City of Peoria v. Davis (1976), 39 Ill. App. 3d 557, 350 N.E.2d 531.) These cases, however, concern pretrial rulings and have no application to the case at bar. Moreover, in Edwards, this court found that the trial was a sham so that jeopardy did not attach and retrial of the defendant was not barred. In the instant case, jeopardy attached after the first prosecution witness testified. (Ill. Rev. Stat. 1983, ch. 38, par. 3—4(a)(3).) Accordingly, retrial of this defendant is barred whether the proceeding below is construed as an improper termination of the trial after the first prosecution witness or as an acquittal based upon the trial court’s determination that the evidence was insufficient to warrant a conviction. Ill. Const. 1970, art. VI, sec. 6; Ill. Rev. Stat. 1983, ch. 38, pars. 3—4(a)(1), (3).

The State has a right to appeal after trial has commenced only under certain limited circumstances. A mid-trial order denying a State-requested continuance does not have the effect of dismissing the charges against the defendant and is not appealable under Supreme Court Rule 604(a)(1) under the circumstances herein. That rule is not a substitute for proper preparation for trial by the prosecution.

For the reasons set forth above, this appeal is dismissed.

Dismissed.

CAMPBELL and BUCKLEY, JJ., concur.


author: PRESIDING JUSTICE McGLOON

text:
      In re MARRIAGE OF HANNE BAILEY, Petitioner-Appellee, and DAVID ALLAN BAILEY, Respondent-Appellant.
    First District (1st Division)
    No. 83—2102
    Opinion filed January 14, 1985.
    Sheldon S. Grauer, of Broadview, for appellant.
    Raymond J. Courney, of Oak Brook, for appellee.
   PRESIDING JUSTICE McGLOON

delivered the opinion of the court:

Respondent, David Allan Bailey, appeals from the order dissolving his marriage with petitioner, Hanne Bailey. On appeal, respondent argues: (1) the trial court erred in awarding custody of the parties’ youngest child to petitioner; (2) the trial court erred in assessing respondent petitioner’s attorney fees in the amount of $10,000; and (3) the trial court erred in denying respondent’s motion for child support from petitioner.

We affirm.

The parties were married in 1967 and had three sons. Raymond was born in 1968, Eric was bom in 1970, and Michael was bom in 1975. Petitioner filed for dissolution on September 30, 1980. On April 18, 1981, she permanently left the marital residence. She took Michael with her and retained custody of him until August 13, 1981, when the trial court entered an agreed order awarding temporary custody of the three children to respondent. Since that time, the children have lived with respondent and petitioner has had visitation rights.

Petitioner testified respondent told the children they should not listen to petitioner or do anything she told them. He told the children she was insane and should be institutionalized. Respondent interfered with her rights of visitation with the children. He scheduled activities with the children during her normal time of visitation. He objected to her stopping at the house after work to see the children. He objected to the children calling her on the telephone. He had the locks of the house changed. Petitioner testified she and the children have a loving relationship and have fun during their time together. Michael gets very upset when he has to leave and return to his father.

Respondent denied interfering with petitioner’s rights of visitation. “Quite a few times” respondent had to direct the children to go with their mother. Sometimes he would have to take them over to petitioner’s home because the children were reluctant to go.

Peggy Vernado, a caseworker from the Cook County Department of Supportive Services, testified she prepared a report on the instant case. She interviewed the parties and the children. She believed petitioner had a concern for the welfare of her children and that the children seemed to relate well to her. Raymond and Eric told her they wished to live with their father, while Michael told her he wished to live with his mother. The witness concluded in her report that both parents were equally capable of providing adequate care for the children. She recommended that the children remain in the custody of respondent because he had provided them with adequate care and she saw no reason to change the status quo.

Dr. Alice R. Dakin, a psychiatrist, testified she prepared a report regarding the family situation. She interviewed the parties and the children. Raymond and Eric told her they wished to live with their father and Michael told her he wished to live with his mother. Michael told her he misses his mother very much, dreams about her every night, and sometimes cries when he goes to bed. The witness believed it was normal for a child of Michael’s age to feel greater attachment to his mother than his father. The witness believed respondent showed a greater concern for the problems of the children than did petitioner. She believed that there should be compelling reasons to change the current custody situation. She also believed Michael would benefit from remaining with his father. He would have a stronger male identification than he would if he lived with his mother.

The trial judge continued the examination of Dr. Dakin. He expressed his disturbance with what he perceived as a continuing effort on the part of respondent to systematically exclude petitioner from the lives of the children. The witness agreed that it was very important that both parents have access to the children.

At the end of the testimony, Joel Schaps, guardian ad litem for the children, recommended the court accept the recommendations of the caseworker and psychiatrist and award permanent custody of all three children to respondent.

In announcing his decision, the trial judge stated that he gave the advice of the guardian ad litem, the psychiatrist, and the caseworker, “very, very serious consideration.” However, he stated that “the course of events during the trial, convinced me that I ought to depart from the advice in the case.” The judge concluded that if he awarded custody of all three children to respondent, he would successfully “freeze petitioner out” of the lives of the children. The judge also concluded that the court’s monitoring of the rights of visitation would not be an adequate alternative.

First, respondent argues the trial court erred in awarding custody of Michael to petitioner.

The trial court is directed to determine custody of a child in accordance to the best interest of that child. (Ill. Rev. Stat. 1981, ch. 40, par. 602(a).) The court should consider the preference of the child in its decision. (Ill. Rev. Stat. 1981, ch. 40, par. 602(a)(2).) In custody cases the trial court is vested -with great discretion because it has a better opportunity to observe the witnesses and to determine the best interests of the child. (In re Custody of Piccirilli (1980), 88 Ill. App. 3d 621, 410 N.E.2d 1086.) A reviewing court will not disturb the decision of the trial court unless it is against the manifest weight of the evidence or unless manifest injustice will result. (In re Custody of Blonsky (1980), 84 Ill. App. 3d 810, 405 N.E.2d 1112.) Although the testimony of psychologists and social workers is relevant to the determination of custody, their opinions are not binding on the court. (In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 434 N.E.2d 811.) The awarding of siblings to different parents is sometimes warranted. In re Marriage of Ford (1980), 91 Ill. App. 3d 1066, 1072, 415 N.E.2d 546.

In the case at bar, although the experts recommended respondent retain custody of Michael, there was certainly no suggestion that petitioner would be an unfit custodian. In fact, the testimony reveals that petitioner has a deep concern for Michael, and the investigator from the Department of Supportive Services testified specifically that both parents are equally capable of providing adequate care for the children. Furthermore, petitioner had custody of Michael for a period of months before respondent received temporary custody of the children. Clearly, the trial court made the factual determination that petitioner had afforded Michael adequate care and that Michael’s development was in no way harmed by her having custody. Finally, the trial court made the factual determination that respondent would successfully frustrate petitioner’s contact with the children were he to retain custody of all the children. The testimony of Dr. Dakin makes clear that the children’s access to both parents is extremely important to their future development. The court, in its discretion, concluded that the best method to ensure continued contact between the children and both parents was through the division of custody. Therefore, the court determined custody in accordance to their individual preferences and in accordance with his determination of the best interests of each child. Under the unique circumstances in the case at bar, we cannot say that the determinations of the trial court were contrary to the manifest weight of the evidence or would result in a manifest injustice.

Second, respondent argues the trial court erred in ordering him to pay $10,000 of petitioner’s attorney fees.

The order of dissolution granted respondent approximately $27,000 worth of marital property and petitioner approximately $29,500 worth of marital property. Petitioner was obligated to pay medical insurance for the children. Petitioner’s reported income for 1982 was $13,958. Respondent’s source of income was an appliance repair business. He declared he drew $3,825 from the business in 1982. However, testimony indicated he spent considerably more than that amount of money. Respondent testified he drew some money from an account belonging to his mother. In 1980, petitioner inherited approximately $6,200. Respondent inherited the estate of his mother, worth approximately $80,000.

Counsel for petitioner presented a petition for fees in the amount of $16,195. Accompanying the petition was a detailed time sheet representing 161.95 attorney hours. During the hearing on fees, the court asked respondent’s attorney whether the number of hours billed by petitioner’s attorney was “in the same league” as the number of hours respondent’s attorney spent on the case. Counsel for respondent replied, “And a little bit more. But I can understand he probably [had] to talk to [petitioner] more.”

In dissolution proceedings, the award of attorney fees is left to the sound discretion of the trial court. (In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 439 N.E.2d 1005.) The court is directed to consider the “financial resources of the parties.” Ill. Rev. Stat. 1983, ch. 40, par. 508(a).

In the case at bar, the trial court in its discretion did not dispute the time spent by counsel on behalf of petitioner or the value of the legal services. Considering the respective financial resources of the parties, we cannot say the trial court abused its discretion in assessing respondent $10,000 for petitioner’s attorney fees.

Finally, respondent argues the trial court erred in denying his petition for child support.

Like the award of attorney fees, the determination of child support is a matter within the sound discretion of the trial court. (In re Marriage of Dwan (1982), 108 Ill. App. 3d 808.) In the case at bar, considering the financial resources of the parties and considering that each parent will incur child-rearing expenses, we conclude the denial of respondent’s petition for child support was proper.

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

Judgment affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


author: JUSTICE CAMPBELL

text:
    DR. DEAN C. DAUW et al., Plaintiffs-Appellants, v. KENNEDY & KENNEDY, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—1779
    Opinion filed December 24, 1984.
    Rehearing denied February 21, 1985.
    Earl Schneider, of Schneider & Morrison, Ltd., of Chicago, for appellants.
    Pamela Strobel, of Isham, Lincoln & Beale, of Chicago, for appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Summary judgment was entered in favor of defendants Kennedy & Kennedy, Inc., and James H. Kennedy and against plaintiffs Dr. Dean C. Dauw and Human Resource Developers, Inc., an Illinois corporation, on count I of the plaintiffs complaint, which alleged that defendants published a statement constituting libel per se.

This appeal followed.

It appears from the record that defendants are publishers of Consultant News, a monthly newsletter which is circulated to subscribers in the career consulting and placement business in Illinois, the United States, and Canada. In the August 1978 issue, the following article appeared:

“ ‘Executive recruiter pledges much—and keeps the fee’— headline in Chicago paper overruns story on Executive Careers alumnus Dean C. Dauw & his Human Resource Developers (also does some sex counseling) *** detailing how he charges only $795.00 vs. reported $2,500.00 at Richard/Allen/ Winter and other placement/counseling shops.
(CN) Comment: More evidence of cross that true recruiters must bear when confused with schlock operations.”

Plaintiffs brought suit alleging that the above article was libelous per se in that the use of the phrase “schlock operations” disparaged the plaintiffs in their professional capacities. The amended complaint alleged that the Consultant News is sold and circulated generally throughout the United States and Canada, and that plaintiff, Dr. Dean C. Dauw, is a practicing pyschologist, author, lecturer and associate professor in the graduate school of a local university. The plaintiff, Human Resource Developers, Inc., is an Illinois corporation employing psychologists, including Dr. Dauw, and is engaged in the field of assisting individuals seeking executive career counseling or job counseling. Both parties filed motions for summary judgment. Defendants claimed that the Consultant News article reported information from an article published in the Chicago Sun-Times.

Plaintiffs were unable to properly plead a case in libel per se in count I, and the court granted summary judgment in favor of defendants and permitted plaintiffs to attempt to advance a theory of libel per se by the filing of an amended complaint adding a count II to plead special damages. This court has been advised by appellees’ brief that plaintiffs took a voluntary nonsuit on count II.

In the course of the hearing on plaintiffs’ motion to reconsider, the court observed that its independent research disclosed that “the word ‘schlock’ has never been defined in any English-speaking court anywhere.” The court noted that there was a store in Fort Lauder-dale, Florida, wherein such term was used in the name of the business and that the proprietor indicated in a telephone call that the term meant a “conglomeration of collected items of little use such as stored in an attic or sold at a cheap price.” The name of the store is protected and registered.

The court also consulted various dictionaries, including a Yiddish dictionary by Leo Rosten, and some of them had derogatory meanings attached to the word. The court also considered. the cases in the jurisdictions of New York, California, Illinois and Florida, and in none of those jurisdictions had the word “schlock” ever been the subject of a libel action. The court felt that the word “schlock” can be construed as having such various meanings as inferior, bargain, fire sale or distressed merchandise. Thereafter, the court denied the motion to reconsider the granting of summary judgment in favor of defendants as to count I.

Plaintiffs do not aver any special damages, and thus their right to recover rests upon whether the alleged libelous matters are actionable as a matter of law. (Fried v. Jacobson (1983), 99 Ill. 2d 24.) In Fried, the supreme court declared that “under common law, four classes of words, if falsely communicated, give rise to a cause of action for defamation without a showing of special damages. They are:

“1. Those imputing the commission of a criminal offense;
2. Those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society;
3. Those imputing inability to perform or want of integrity in the discharge of duties of office or employment;
4. Those prejudicing a particular party in his profession or trade.” 99 Ill. 2d 24, 27.

In Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, 442 N.E.2d 195, the supreme court stated as follows: “We therefore hold that a written or oral statement is to be considered in context, with the words and implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance.”

On appeal, plaintiffs assert that the trial court erred in innocently construing the phrase “schlock operations.” Plaintiffs contend that such construction under Chapski is neither natural nor obvious and is strained and unreasonable and contravenes the rule exemplified by Chapski.

According to plaintiffs, the article was libelous per se in that it disparaged the plaintiffs in their professional capacities. The trial court rejected this contention and determined that the amended complaint was insufficient as a matter of law to state a claim for libel per se. Plaintiffs assert that, under Chapski, it is apparent that “schlock” is being used to connote something that is untrue, false, phoney or inferior.

Plaintiffs have cited as support for their position The Joys of Yiddish, by Leo Rosten, as follows:

“shlock
schlack
schlock
Rhymes with ‘clock.’ Schlock is both an adjective and a noun. From German: Schlag: a ‘blow’; perhaps the Yiddish means merchandise that has been ‘knocked around.’
1. A shoddy, cheaply made article. ‘It’s a piece of schlock.’ ‘Where did you buy that? In a schlock-house?’
2. A defective or fake article; an object one was cheated over. ‘That watch will never keep time. It’s schlock merchandise.’
3. A disagreeable, peevish person.
4. A shrew, a whining -wife, a yenta—and a slob, to boot. ‘His beloved? There’s a shlock of a girl.’

Plaintiffs do not specify which of the above definitions offer support for their cause of action, and we note in a later work by the same author that the phrase “a shoddy cheap article” is employed as one definition which tends to negate the position of the plaintiffs.

The trial court also rejected plaintiffs’ contention that it was unreasonable to construe defendants’ statements innocently, given the context in which they appear, and their natural and obvious interpretation. Isolated words may not be taken out of context to reach a conclusion that the language is actionable per se. (Crinkley v. Dow Jones (1983), 119 Ill. App. 3d 147, 456 N.E.2d 138.) We agree that the trial court’s determination that defendants’ remarks are not actionable as a matter of law and the authorities on which plaintiffs rely are unpersuasive in the light of the supreme court’s rule as stated in Chapski and Renard v. Columbia Broadcasting System, Inc. (1984), 126 Ill. App. 3d 563, 467 N.E.2d 1090. (See also Meyer v. Allen (1984), 127 Ill. App. 3d 163, 468 N.E.2d 198.) None of the definitions provided by plaintiffs provide a basis to reject the trial court’s determination as a matter of law that the language employed is not actionable per se.

We therefore hold that the trial court’s order granting summary judgment in favor of defendants was proper, and the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and O’CONNOR, J., concur.

      L. Rosten, The Joys of Yiddish 353 (Washington Square Press, Simon & Schuster, New York, 1970).

      L. Rosten, Hooray for Yiddish, a Book about English 288 (Simon & Schuster, Inc., 1982).


text:
    WIL-SHORE MOTOR SALES, INC., Plaintiff-Appellee, v. CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO et al., Defendants-Appellants.
    First District (1st Division)
    No. 83—1416
    Opinion filed December 24, 1984.
    Rehearing denied February 21, 1985.
    Liebling & Hauselman, of Chicago, for appellants.
    Weiner, Neuman & Spak, of Chicago, for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Defendants, Dorothy V. Waxier and Sidney Markovitz, appeal from an entry of summary judgment in favor of plaintiff, Wil-Shore Motor Sales, Inc., and from the trial court’s order granting plaintiff specific performance of an option to purchase certain real property leased by plaintiff. On appeal, defendants contend: (1) that the trial court erred in granting plaintiff’s motion for summary judgment; (2) that the court erred in denying defendánts’ motion for summary judgment; and (3) that the court erred in denying defendant Waxier’s motion to dismiss her from the lawsuit.

Initially we note that the plaintiff was granted leave to file an amended complaint naming as party defendants Continental Illinois National Bank and Trust Company of Chicago, a national banking corporation, as trustee under trust No. 52375; Dorothy Y. Waxier; John C. Waxier (jointly Waxier defendants); Central National Bank of Chicago, a corporation, as trustee under trust No. 24439 (Central); Sidney Markovitz; Marion Markovitz; Lezli Elizabeth Markovitz; Michael Jay Markovitz; and Rhoda Elvove Markovitz (jointly Markovitz defendants), and other unknown beneficiaries of trust No. 24439. The trial court granted the motion to dismiss John C. Waxier with prejudice, and he is not a party to this appeal. For simplicity, this opinion will refer only to the principal defendants, Dorothy J. Waxier and Sidney Markovitz.

The record discloses that Waxier is the beneficial owner of property located at 611 Greenbay Road in Wilmette. Plaintiff, an Illinois corporation, is engaged in the business of the retail sale of automobiles and leases the above-mentioned premises from Waxier for the operation of its business under two separate 10-year leases beginning in 1961. The second lease, for the period between February 1, 1971, and January 31, 1981, contains a rider with several provisions. One provision requires Waxier to give plaintiff five days prior written notice to correct any defaults before plaintiff will be deemed in default of the lease and Waxier can re-enter the premises. The rider also creates a right for plaintiff to “meet or refuse” any bona fide offer of purchase made to Waxier with regard to the premises. This covenant provides as follows:

“In the event the Lessor shall during the term hereof be desirous of selling said demised premises, the Lessor shall first com-. municate in writing any bona fide offer of purchase to Lessee who shall have the prior right to meet or refuse the terms of said bona fide offer on or before ten (10) days from the date of such written communication provided, always, however, that said prior right to acceptance or refusal is expressly conditioned upon the faithful performance and observance by the Lessee of all the covenants, agreements, and conditions on its part herein contained and the payment to the Lessor of the rent hereby reserved up to the date of the completion of such purchase.”

The rider to the lease further provides, in paragraph 4 thereof:

“That no default may be declared by the Lessor or other remedy used, as provided in paragraph 14 of this lease unless and until Lessor shall give Lessee a notice in writing notifying Lessee of any alleged default or violation of this lease and Lessee fails to correct or remedy such default or violation within five (5) days after receipt of such written notice.”

Additionally, the rider requires plaintiff to carry insurance covering both plaintiff and Waxier in case of loss or damage to the premises. Plaintiff is also permitted to provide a blacktop surface over the vacant parking area on the premises, but plaintiff will be required to seal and reseal the blacktop surface each year or as necessary to keep the surface in good condition.

The record further discloses that on October 12, 1979, Waxier met with James Price Roberts, plaintiff’s president and director, and his son, Donald Roberts, vice-president of plaintiff corporation, to discuss a new lease between Waxier and plaintiff. During the meeting Waxier informed James and Donald that she would be willing to sell the leased premises for five or six hundred thousand dollars, but James rejected that price. During 1979 and 1980, Waxier and Donald discussed the possible purchase of the premises by Sidney Markovitz. Markovitz, who was in the business of automobile leasing, testified that he had several private conversations with Donald regarding the possible purchase of the premises leased by plaintiff. Markovitz told Donald that he would be willing to purchase the premises for $250,000, and Markovitz received Donald’s assurance that the offer had been conveyed to Waxier. Waxier testified that she telephoned Donald on March 24, 1980, to inform him that she would accept Markovitz’ offer to purchase the premises for $250,000.

In July or August, 1980, Markovitz contacted Waxier and after some negotiation, Waxier agreed to sell Markovitz the premises. Waxier and Markovitz agreed to meet on August 12, 1980, to discuss the transaction. According to Waxier, she contacted Donald on August 11, 1980, to inform him that she would be meeting with Markovitz the next day to sell him the premises. Waxier and Markovitz met as planned, and Markovitz presented Waxier with the contract of sale, an escrow agreement and a check for $20,000. The parties agreed that Waxier would arrange for the closing of the deal. On August 25, 1980, Waxier claims that she informed James that she had sold the premises. On September 2, 1980, Markovitz met with Donald to inform him that he had bought the premises for $250,000. The sale was closed on September 12,1980.

On September 10, 1980, Waxier wrote Donald that the premises had been sold and that rent checks should be made payable to Markovitz beginning on October 1, 1980. The letter was opened by plaintiff’s business manager, Isabel Gordon, in mid-September, and she complied with the instructions by sending the October 1, 1980, rent payment to Markovitz.

On September 8, 1980, Donald objected to a request by plaintiff’s insurance broker to add Markovitz, the new owner of the property, as an additional insured on the existing policy. Also in September, Donald met with Markovitz to negotiate a new lease of the premises to begin on February 1, 1981. Waxier sent Donald a letter on October 11,1980, stating:

“This is to confirm our telephone conversation. I called and told you I was selling the building and also you were informed of the sale price; however, I did not notify you in writing.”

Plaintiff filed the instant action for injunctive relief and specific performance on October 24, 1980. In particular, plaintiff sought, inter alia, to set aside the sale and to direct Waxier to sell the leased premises to plaintiff.

The Waxier defendants filed their answer stating that plaintiff was barred from obtaining any relief because of waiver, estoppel, laches and unclean hands. Thereafter, the respective parties filed cross-motions for summary judgment, and plaintiff’s motion was granted. From this order, Dorothy Waxier, Central National Bank and the Markovitz defendants appeal.

On appeal, Markovitz contends that the trial court erred in granting summary judgment because genuine issues of material fact exist on the question of whether plaintiff, through the acts of its authorized agent, Donald Roberts, has waived its right to exercise the first option on its right to receive written notice and is estopped. The defendants, while conceding that plaintiff was not given written notice of the sale, seek to have an inference drawn that plaintiff, through the actions and subsequent inaction of its agent Donald Roberts, intended to relinquish its rights and that the trial court was bound not to draw any inference regarding plaintiff’s intent and the estoppel issue until after a full trial was held. Both defendants specifically contend that plaintiff, through its officer and director, Donald Roberts, as well as through two of its other officers and directors, J. P. Roberts and Clovela Roberts, the parents of Donald, had full knowledge of and participated in the sale of the real estate and failed to take any action for many months to protect its rights. Defendant Waxier claims that conversations were held on March 24, May 12, June 12 and July 2, 1980, with Donald Roberts, and with J. P. Roberts on April 22, 1980, and she was told that neither the plaintiff nor any of its officers, directors or shareholders wanted to buy the property. On August 11, 1980, Waxier told Donald Roberts that she was to meet with Markovitz the next day to sell him the property for $250,000, and Donald Roberts said he thought it was a good deal.

Plaintiff disputes the purported conversations and asserts that in a meeting on July 2, 1980, Donald Roberts told Waxier that plaintiff wanted to remain in business on the premises and agreed upon a new five-year lease upon the same terms and conditions except the rent was to be $3,500 per month for the first year, increasing annually by $250 per month until the end of the five years. Both parties had agreed that the premises were not going to be sold.

In the amended answer of defendant Waxier, it is admitted that defendant Markovitz had possession of and had examined the lease prior to the execution of the contract to purchase the premises. In the deposition of Markovitz, it was disclosed that Markovitz told his daughter-in-law, Rhoda Markovitz, an attorney, to draw up the buy and sell agreement for the premises and that he later showed the lease to his son, Michael, also an attorney, prior to the closing of the deal. The record also discloses that prior to the final closing, Waxier telephoned Markovitz and told Markovitz that Wil-Shore “had right of first refusal to the property.” Markovitz replied to Waxier that “I gave her a deposit on the property and I expect delivery of the property.”

It is well established that summary judgment determines whether any genuine issue of material fact exists and summarily disposes of cases where no such fact exists. The motion should be granted when the pleadings, exhibits, depositions and affidavits of record show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2—1005(c).) In ruling on a motion for summary judgment, the trial court must construe pleadings, depositions and affidavits included therein most strictly against the moving party and most liberally in favor of the nonmovant. Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App. 3d 35, 356 N.E.2d 639.

Construction of the terms of a contract presents an issue of law for the court. (Advertising Checking Bureau, Inc. v. Canal-Randolph Associates (1981), 101 Ill. App. 3d 140, 427 N.E.2d 1039.) The primary issue remains as to whether plaintiff is entitled to exercise its rights under the lease and the rider provisions. Here the parties are in agreement as to the existence of the lease, but dispute whether there was notice or knowledge of the sale or whether such notice or knowledge is equivalent to a written notice or a waiver thereof.

Defendants urge this court to look at the intent and conduct of plaintiff as evidenced by certain conversations with its officers and directors, all with a view of pointing to some action or inaction as proof of assent to the sale, knowledge of the sale or waiver or estoppel. Even if the assertions are true, nowhere in the record do the defendants seek to show that defendants were prevented by plaintiff from giving the written notice required under the terms of the lease or to show why their failure to give such written notice should be excused. Nor have defendants shown that plaintiffs conduct, by its agents or directors, intended or expected such conduct to lull defendants into any inaction on the right of first refusal.

It is well settled that in construing the language of a lease, the intention of the parties must govern. (Bonde v. Weber (1955), 6 Ill. 2d 365, 128 N.E.2d 883; Wilson v. Singleton (1951), 410 Ill. 611, 103 N.E.2d 72.) The intention of the parties should be ascertained from the language of the lease, and the words used should be given their common and generally accepted meaning. (American National Bank & Trust Co. v. Lembessis (1969), 116 Ill. App. 2d 5, 253 N.E.2d 126.) Where the terms are clear and unambiguous, they will be given their natural and ordinary meaning. The contract must be enforced as written, and a reviewing court will not rewrite the contract under the guise of construction. (Marquette National Bank v. Walgreen Co. (1984), 126 Ill. App. 3d 680, 467 N.E.2d 954; Tribble v. Reely (1976), 171 Mont. 201, 557 P.2d 813.) The cases cited by defendants may be distinguished under the facts and circumstances of each case and offer no support for why the corporation should not be entitled to enforce the lease provisions. See Ohio Oil Co. v. Yacktman (1976), 36 Ill. App. 3d 255, 343 N.E.2d 544.

In the case at bar, plaintiff and defendant Waxier freely and openly entered into a second 10-year lease, part consideration for which was the rider provision for the right to purchase the premises conditioned upon defendant’s desire to sell. The question presented is whether, under all the facts and circumstances as reflected by the record and the affirmative defenses asserted by defendants, there is established a genuine issue of a material fact. The trial court determined that plaintiff had a right to summary judgment and that defendants have failed to establish the existence of a genuine issue of a material fact. In this regard, the trial court’s determination will not be reversed unless an abuse of discretion is shown such that a party’s right to fundamental justice is violated. (Chandler v. Jet Air Freight, Inc. (1977), 54 Ill. App. 3d 1005, 370 N.E.2d 95. Audition Division Ltd. v. Better Business Bureau (1983), 120 Ill. App. 3d 254, 458 N.E.2d 115.) The record does not reveal, nor do the arguments of the defendants show, an abuse of discretion. Ohio Oil Co. v. Yacktman (1976), 36 Ill. App. 3d 255, 343 N.E.2d 544.

In order to prevent the entry of a summary judgment, the defendants were obliged to present a bona fide factual defense as opposed to general denials and conclusions of law. Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed and this cause is remanded for further proceedings in accordance with the views expressed herein.

Affirmed and remanded.

BUCKLEY, P.J., and GOLDBERG, J., concur.

      This opinion was adopted by the court prior to the retirement of Justice Goldberg.


author: JUSTICE PERLIN

text:
    JOHN L. SZAJNA, Plaintiff-Appellant, v. GENERAL MOTORS CORPORATION, Defendant-Appellee.
    First District (2nd Division)
    No. 84—0276
    Opinion filed January 16, 1985.
    Rehearing denied February 19, 1985.

      Richard J. Friedman, of Highland Park, and John F. O’Meara, of Chicago (Leoris & Cohen, of counsel), for appellant.
    William R. Jentes, Steven J. Harper, and Steven L. Zeller, all of Kirkland & Ellis, of Chicago (Louis H. Lindeman, Jr., of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

John L. Szajna (plaintiff) appeals from the trial court’s dismissal with prejudice of his second amended three-count complaint (complaint) which sought a declaratory judgment and damages. Plaintiff, the purchaser of a new 1976 Pontiac Ventura car, filed this action against General Motors Corporation (GMC) on behalf of himself and other persons similarly situated, contending that 1976 Pontiac Ventura cars were equipped with “inferior” transmissions designed for use not in the heavier Venturas, but in the lighter and smaller “Chevette” model cars. As a result, plaintiff alleges the value of 1976 Pontiac Venturas was “lessened.” Damages were premised solely on economic loss and not injury to person or property.

Count I of the complaint asserted liability on an alleged breach of an implied warranty pursuant to section 2—314 of the Uniform Commercial Code (UCC) (Ill. Rev. Stat. 1979, ch. 26, par. 2—314) and section 110 of the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (15 U.S.C. sec. 2310(d) (1976)). Plaintiff contended that because of the allegedly inferior transmissions, cars sold as “1976 Pontiac Venturas” would not “pass without objection in the trade” and were not “of fair average quality within the description.”

Count II of the complaint asserted liability on an alleged breach of an express warranty pursuant to section 2—313 of the UCC (Ill. Rev. Stat. 1979, ch. 26, par. 2—313). Plaintiff contended that the trade name “1976 Pontiac Ventura” was a “description” of goods which gave rise to an express warranty that the car would be equipped with a transmission of a particular “kind or quality.”

Count III of the complaint alleged common law fraud against GMC. Plaintiff contended that the trade name “1976 Pontiac Ventura” was a “statement of material fact” which was in part untrue because the transmissions in the Ventura were not appropriate for those cars.

In March 1980, the trial court granted GMC’s motion to dismiss the complaint for failure to state a cause of action, but granted plaintiff leave to file a third-amended complaint. In response plaintiff filed a motion requesting the trial court to reconsider its order of dismissal or, in the alternative, to state conclusions of law in support of its order. The court thereupon entered an order dismissing the complaint with prejudice and containing the following “conclusions of law”:

“[Relating To Count I]
(1) Under the Illinois law, privity of contract is a prerequisite to suit for breach of implied warranty alleging economic loss;
(2) The Magnuson-Moss Act expressly incorporates state law privity requirements in implied warranty suits under the Act by defining ‘implied warranty’ as those implied warranties ‘arising under state law’ in 15 U.S.C. sec. 2301(7);
(3) In this case, Illinois law applies to plaintiff’s implied warranty claims;
(4) No privity of contract exists between the plaintiff and defendant General Motors Corporation;
(a) The warranty attached to the second amended complaint is a limited warranty running to the ultimate purchaser, but does not give rise to the implied warranties asserted by plaintiff.
[Relating To Count II]
(5) As a matter of law, plaintiff has failed to allege the existence of an express warranty by defendant, General Motors Corporation, that plaintiff’s automobile would be equipped with a particular transmission; and
[Relating To Count III]
(6) As a matter of law, plaintiff has failed to allege any misstatement of a material fact by defendant General Motors Corporation giving rise to an action for fraud.”

Plaintiff appeals. In reviewing an order of a trial court dismissing a complaint for failure to state a cause of action, the reviewing court must accept as true all well-pleaded facts in the complaint, and all reasonable inferences flowing therefrom (Samuels v. Checker Taxi Co. (1978), 65 Ill. App. 3d 63, 382 N.E.2d 424), and must determine whether, as a matter of law, the complaint states a cause of action. Jones v. Eagle II (1981), 99 Ill. App. 3d 64, 424 N.E.2d 1253.

Count I

The trial court dismissed count I of the complaint, which alleged breach of an implied warranty, on the ground that these parties were not in privity, whereas Illinois law requires privity to maintain an action for economic loss resulting from breach of an implied warranty.

Plaintiff’s contention is two-fold; he requests this court to: (1) abolish the privity requirement in such cases; or, (2) find that in the instant case the parties were in privity.

With respect to the doctrine of privity, plaintiff argues that it should be abolished for causes of action like the one asserted here. He notes that the majority of other jurisdictions have done so, and that our supreme court has done so with regard to other causes of action (Suvada v. White Motor Co. (1977), 32 Ill. 2d 612, 210 N.E.2d 182 (lack of privity not a defense in tort actions); Berry v. G. D. Searle & Co. (1974), 56 Ill. 2d 548, 309 N.E.2d 550 (privity not required in action for personal injuries arising from breach of implied warranty); Redarowicz v. Ohlendorf (1982), 92 Ill. 2d 171, 441 N.E.2d 324 (action against home builder by subsequent purchaser for breach of implied warranty of habitability not barred by lack of privity). Plaintiff contends that the privity defense is an outdated relic whose abolition is required by changing economic realities.

Illinois law still recognizes that privity is a requirement in actions for economic loss resulting from breaches of implied warranties. (Spiegel v. Sharp Electronics Corp. (1984), 125 Ill. App. 3d 897, 466 N.E.2d 1040; Frank’s Maintenance & Engineering, Inc. v. C. A. Roberts Co. (1980), 86 Ill. App. 3d 980, 408 N.E.2d 403.) While our supreme court may in time review the continued viability of the privity doctrine in relationship to implied warranties, that decision is not one for this court to make.

Plaintiff next argues that even if this court upholds the privity requirement, we should find that the parties here were in privity. Citing to the opinion in Crest Container Corp. v. R. H. Bishop Co. (1982), 111 Ill. App. 3d 1068, 445 N.E.2d 19, for the proposition that privity requires only that the parties have “some” contractual relationship with each other, plaintiff contends that since in the instant case plaintiff received an express written limited warranty from GMC when he purchased the car, the parties are in privity for purposes of implied warranties.

We cannot agree. The express written limited warranty provided to plaintiff was effective for “12 months or 12,000 miles of use whichever first occurred.” This express warranty included a disclaimer which stated, in part: “ANY IMPLIED WARRANTY APPLICABLE TO THIS CAR IS LIMITED IN DURATION TO THE DURATION OF THIS WRITTEN WARRANTY.” Such disclaimers are permitted under the UCC (see Ill. Rev. Stat. 1979, ch. 26, pars. 2— 313, 2—316 and 2—719) and will be upheld so long as they are reasonable and appropriately set forth in the contract. (See Bowers Manufacturing Co. v. Chicago Machine Tool Co. (1983), 117 Ill. App. 3d 226, 453 N.E.2d 61; Frank’s Maintenance & Engineering, Inc. v. C. A. Roberts Co. (1980), 86 Ill. App. 3d 980, 408 N.E.2d 403.) Here, plaintiff concedes that he has not alleged breach of the written limited warranty, and that it was not in fact breached.

While the parties were in privity for purposes of the provisions in the express written limited warranty, they were not in privity for purposes of implied warranties, which were specifically disclaimed by the express warranty. Nor do we find that the Crest Container case requires a different holding. We agree that that decision merely “describes a very narrow situation in which recovery of economic loss may be had on a warranty theory in the absence of privity. The exception dealt with by the court is limited to cases where a ‘remote manufacturer knows “the identity, purpose and requirements of the dealer’s customer and manufactured or delivered goods specifically to meet those requirements.” ’ [Citations.]” (Spiegel v. Sharp Electronics Corp. (1984), 125 Ill. App. 3d 897, 900, 466 N.E.2d 1040.) Plaintiff in the instant case has not alleged such knowledge on the part of GMC. Thus we conclude that plaintiff did not assert a cause of action under State law in count I.

Because the Magnuson-Moss Warranty Act provides that “[t]he term ‘implied warranty’ means an implied warranty arising out of State law ***” (15 U.S.C. sec. 2301(7) (1976)), we believe that for the reasons aforestated this Act provides no basis for relief for plaintiff. Therefore, we affirm the trial court’s dismissal of count I of the complaint.

Count II

Section 2—313 of the UCC (Ill. Rev. Stat. 1979, ch. 26, par. 2—313) provides, in part:

“(1) Express warranties by the seller are created as follows:
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.”

In count II, plaintiff contends that the trade name “1976 Pontiac Ventura” is a “description” of the car which gives rise to an express warranty that the car will have a transmission of a particular kind and quality. In support, plaintiff cites to cases wherein the actual mislabeling of a product was held to be a breach of the express warranty that the product would conform to the label. In Klein v. Asgrow Seed Co. (1966), 246 Cal. App. 2d 87, 54 Cal. Rptr. 609, the defendant seed grower was held liable for breach of an express warranty when it was found that tomato seeds labeled as “VF-36” were in fact “rogue” seeds of lesser quality, incapable of producing VF-36 tomatoes. In Kilborn v. Henderson (1953), 37 Ala. App. 173, 65 So. 2d 533, the court affirmed the finding of a breach of an express warranty where a car advertised as a “1940 Mercury” was found to have a motor which was manufactured several years before 1940.

We do not find such situations analogous to that presented here. The car plaintiff intended to purchase—a 1976 Pontiac Ventura—was in fact the car he received. Plaintiff does not rely on any “description” of the transmission other than the car’s trade name. We do not believe that defendant’s use of a trade name, alone, can be extended to encompass a “description” of the transmission used. In sum, we find no mislabeling or “misdescription,” and we affirm the trial court’s dismissal of count II of the complaint.

Count III

The allegations, and theory, of count III are similar to those found in count II of the complaint. In count III plaintiff charges GMC with fraud, contending that the trade name “1976 Pontiac Ventura” is a “statement of material fact” which should be construed to include a factual assertion that a car so labeled contains a transmission of a particular kind or quality. Because plaintiff alleges that the transmission in that car was, in fact, “inferior,” he concludes that GMC’s labeling of the car as a “1976 Pontiac Ventura” was an intentional misstatement of material fact. In support, plaintiff cites to cases wherein specific statements of fact relevant to the product were found to be untrue and therefore actionable. In Alver v. Broadway Buick Sales Co. (1958), 18 Ill. App. 2d 542, 152 N.E.2d 614 (abstract), and Ballard v. Byerly (1924), 233 Ill. App. 522, liability was found when cars were represented to be of a different year and model than they in fact were. The representations made in those cases were held to be misstatements of material fact. Again, we find no similar misstatements of fact in the instant case.

Generally, a trademark or brand name designates the source of the product (Technical Publishing Co. v. Lebhar-Friedman, Inc. (7th Cir. 1984), 729 F.2d 1136) and represents that the product meets the requirements of the trademark owner. (See, e.g., Menendez v. Holt (1888), 128 U.S. 514, 32 L. Ed. 526.) We cannot accept plaintiff’s theory that the trademark or brand name, alone, is intended to include a representation that the component parts of the product are of a particular kind or quality. GMC represented the car purchased by plaintiff to be a “1976 Pontiac Ventura” which, admittedly, it was. We find no misstatement of material fact regarding the transmission by virtue of the car’s trade name. It follows that the trial court correctly dismissed count III of the complaint.

For the reasons stated herein, the order of the trial court dismissing plaintiff’s second-amended complaint is affirmed.

Affirmed.

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